Document peQv224jXV9j43OZyDrVwEwGd

1 / 1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT s ST, CLAIR COUNTY, ILLINOIS 3 4 FRANCES E. KENNER, ET AL,, D 5- Plaintiffs, 6 v. ) Case No. 80-L-370 7 NONSANTO CONPANY, 8 Defendant. 3 10 11 REFDR.T_OF PROCEEDINGS is Narch 10, 13B6 13 14 Before the HONORABLE RICHARD F, BOLDEMHERSH, CIRCUIT JUDGE 15 16 APPEARANCES: 17 NR. REX CARR and NR. JERDNE 5EIGFREID, Attorneys at IB Law, on Behalf of the Plaintiffs; and 13 NR. KENNETH HEINENAN, NR. JOSEPH MASSIF, and NR. JANES 20 C. CRAUEN, Attorneys at Law, on Behalf of the 21 Defendant. 25 23 Kathleen Watson Brunsmann, RPR, CSR 24 fficial Court Reporter 1 INDEX OF WITNESSES 2 3 DR. RAYMOND SUSKIND 4 Further Cross Examination By Mr. Carr......... 14 5 5 7 B a Plaintiffs' 10 INDEX OF EXHIBITS Marked for Idenfication Admitted 11 1762 12 1763 ^ 13 1764 14: 1765 * ^ 33 33 33 3B 30 30 3B 39 15 1766 59 IB 1767 60 17 1768 60 IB 1769 B1 83 13 1770 20 1771 117 11B 119 21 1772 11B 22 1773 11B 23 1774 11B 24 1 BE IT REMEMBERED AND CERTIFIED, that heretofore on 2 to-wit: Monday, March 10, 1905 the matter as hereinbefore 3 set Forth came on for hearing before the Honorable Richard 4 P. Boldenhersh, Circuit Judge, in and for the Twentieth S Judicial Circuit, and thB following was had of record, tO6 wit: 7 a CThe following proceedings were had in chambers a out of the presence and hearing of the Jury:3 10 n MR. HEINEMAN: Ready? Judge, we're here this 12 morning to suggest to the Court that there needs to be some 13 sort of a limitation with respect to the time that Mr. Carr 14 is taking to cross examine the present witness, and an 15 exercise of the Court's discretion in that regard. What Mr. IB Carr is going into right now, that he started right at the 17 end of the day on Friday, is clearly repetitious of ia information that hB want through earlier with this witness, 13 and we believe that it's done in an effort to be pure 20 harassment of the witness. 21 As the Court will recall, we covered in direct 52 examination the area of the 1953 study in an hour or two. 23 Mr. Carr has now been examining this witness with respect to. 24 that study For about six days, which is about three times 1 the total of the direct examination. .s The Court will recall, of course, that it had 3 exercised its discretion to limit the Defendant in the 1 course of ths cross examination of Dr. Carnou. 5 So, essentially, Judge, the witness has been 6 involved in testimony for about a month. There have been at 7 least fivs or six lost days of testimony which have not been a his fault, three days werB at his request. There have bean 9 several days of testimony lost which have not been through 10 his fault. 11 These 11 people that N r . Carr is starting to go 12 over with this exhibit, with the typewritten exhibit with 13 the doctor's handwriting on it, which is 1734, I believe, 14 has been gone over at length before with the doctor, and we 15 believe it's repetitious, and wa object to it. 15 In addition, your Honor, we would likB to say on 17 thB witness' behalf that Nr. Carr has been intentionally IB baiting this witness. He says things like that he 19 disbelieves the witness, improper statements such that he 20 would not trust the recollection of this witness, which is 21 as I understand it, the very same thing that Or. Carnow said 22 about this witness in Nitro, which is what Nr. Carr 23 represented to this Court as being reprehensible, and as 24 Justifying the outbreak that this witness had about Dr. 1 Carnow, and yet Mr. Carr has employed the same tactics, and 2 when this witness comas back with an emotional outburst or 3 responses that are emotional in nature, and spontaneous in 4 response to the baiting and encourages this witness* 5 reaction, and then it brings adverse Court reaction to what 6 the witness has dons, 7 So we object to the intentional baiting of this S witness and the harassment of him by Mr. Carr, and we would S ask the Court and Mr. Carr For a statement of how long this 10 cross examination is going to go. It's now about three 11 times the length of ths direct. There was a time when Mr. 12 Carr told the Court that he thought he could probably finish 13 by the 20th of February. Of course, wa missed that entire 14 weak, so obviously that's out the window. 15 THE COURT: Unfortunately so. 16 MR. HEINEMAN: But sines w e 're six days and w e 're 17 not even passed ths 1953 examination, or study, 1 think we IB would need and would request some representation from Mr. 19 Carr as to how long this thing is going to go. HO THE COURT: You referred to-what he said in Nitro. El I don't know what ha said in Nitro. ES MR. HEINEMAN: Well, Mr. Carr -- S3 THE COURT: I remember what happened here, But 54 what hs said was not repeated. IF you*re going to say that s 1 it's the same, 1 need to know exactly what is said. a MR. HEINEMANi My understanding ia he called the 3 doctor a liar. Carnow called Dr. Suskind a liar, said that 4 Sosklnd lied to the Worker's Compensation Commission. I 5 don't recall anything more reprehensible than that being 6 said about Dr. Suskind. Mr. Carr has done exactly the same 7 thing in the courtroom, even though it's something that he B suggested to the Court would excuse the emotional outburst 3 that the witness made in connection with Or. Carnow. 10 Therefore -- 11 THE COURT: I 'm not asking you to reargue, I 15 didn't know what had been said. 13 MR. HEINEMAM: All right. That's essentially our 14 position. 15 THE COURT: Since you had said it was equivalent, IB I needed to know what it was. 17 MR. CARR: Your Honor, that isn't what I had in 18 mind that I considered to be reprehensible on the part of 13 Dr. Carnow. There is no question but what -- and it wae Stu SO Caldwell that said and pointed out in the Nitro hearing that 51 Dr. Suskind lied before the Compensation Commission. There 22 is no question about that. Ha has acknowledged, in Bffact, 53 that same thing here. 54 The reprehensible statement on the part of Dr. 1 Carnow was not that. It urns a statement that Dr. Carnow a believed that Or. Suskind was responsible For the loss of 3 hundreds and thousands oF lives because oF his statements 4 and publications about the lack of toxicity oF dioxin. That 5 mas what I considered reprehensible. I still consider it 6 reprehensible, and I believe that the embittered Faslings 7 that Dr. Suskind has with regard to Dr. Carnow would be S justified because, of that statement. 9 Dr. Suskind is a liar. There's no question about 10 that. He has been Found in this courtroom to have lied on a 11 number of occasions. In the same breath he says one thing ia and then immediately thereafter says a diametrically 13 opposite thing, with the two statements he simply says 14 they're not inconsistent. Yss is equivalent to no. -v 15 The length of time that has been taken, your 16 Honor, because of the -- has been because of this witness' 17 pen flaunting of the Court's orders with respect to 16 responsiveness of questions, and with respect to this 19 witness practically by the minute requiring reestablishment 20 F paints already established. I believe I've had to 21 establish at least tsn times that the checkmarks on 2a Plaintiff's Exhibit 1730 srs the result oF interpretations 23 of Dr. Suskind's statement. He constantly goes back and 24 says no, that's your interpretation, and then I have to 1 reestablish time and timB again that it is hie 2 interpretation. 3 With respect to the length of time that's required 4 with going over Exhibit 1701, Plaintiff's Exibit 1701 is the S 1353 examination and report, which this witness has 5 interpretted for us and then changes his interpretation. I 7 had in mg schedule of cross examination not more than a half 9 a minute to be devoted on this last go-around, the .9 connection of these symptoms in 1353 and in 1373. I 10 believed that the witness would sag yes they had these 11 symptoms in 1353, and yes, they had thssa symptoms in 1379, 12 and, therefore, the symptoms had not all gone away as was 13 stated in the AMA 13B1 report, and in the 1394 summary. He 14 surprised me when he said no, they weren't symptoms there in 15 1373. I asked what -- well, the Court knows what 1 asked. 15 Than I had to go in and reestablish that they were 17 symptoms in each case. After reestablishing that they ware IQ symtoms in each case, he then goes on to say well, they're 19 not really symptoms, they're imaginary symptoms they had in E0 1373. Then I 'm required to go in an prove that they're not 21 imaginary, all of which takes place because this witness 22 evades the question, evades the logical response to the 23 question, and then when forced to give a logical response to 24 the question, the truthful response, fivs minutes later, a 1 sometimes even two minutes later, ha changes and saga he a didn't say it. The only way you can cross examine a witness 3 of this bilk is to continue and to parsavers and to 4 reestablish with each time the point that had been S established before. 6 Insofar as the limit is concerned, if the Court 7 were to establish a limit of tima with this kind of witness, e than the Court would guarantee that the truth would not coma 9 out, because this witness is extraordinarily adept at making 10 broad, general statements, and then passing on without n anything to back it up, except his stature as a scientist, IE and than when one gats into examining the foundation of the 13 broad, general statement, one finds that it's decayed and 14 termite eaten. There's only one way to examine that kind of 15 witness and that is to go in with the specifics, and t D show 16 that he has no specifics to back up the broad, general, 17 sweeping statement that he mads. 16 With respect to Dr. Carnow and Dr. Silbergeld, the 19 Court will recall, thB Court gave unlimited time when they 50 came on with their toxicological expertise, and Counsel SI spent weeks in cross examining these expert witnesses on the EE toxicological effects of TCDD, without limit, I might say, S3 without any limitation whatsoever. 4 r . Suskind is the chief witness of Monsanto. He 1 is the one responsible for the misapprehension in the world 8 as to the terrible affects of TCDD, and this is the only 3 form in which it can be established that he has lied to the 4 world and lied to this Jury on direct examination. The only 5 way to demonstrate that with a man like Dr. Suskind is the 6 way that I'm doing it. 7 THE COURT: Any reply? 8 MR. HEINEMAN; Yes. Your Honor, the witness has S clearly not flaunted the Court's instructions. The witness 10 is trying his very best to abide by this Court's 11 instructions, and has emotional outbursts that the Court has la objected to and has instructed him to discontinue. It is 13 the questioning, the method of questioning of Mr. Carr, the 14 intentional confusion of complaints versus symptoms by Mr. 15 Carr which have elicited the kinds of answers that ha's 16 gotten From this witness, and in some instances the 17 emotional outbursts that he's received in response. 18 So it is not to be laid in our view at this 19 witness's doorstep. It is something that Mr. Carr is SO carrying-on intentionally in an effort to get this witness SI in a' contrary posture with the Court, which this witness aa really seeks to avoid. The witness has told this Court that ea he is trying his best to answer these questions as best he 24 can, as a scientist, and as we have pointed out to the Court AW 1 previously, the context within which hs was permitted to s testify in the Charleston, blest Uirginia case is very 3 different from the context here. This is very frustrating 4 for him. It's vary difficult. He's doing the best he can. 5 THE COURTt Well, a couple of things. First of 6 all, I've stated before, and I will state again, there is no 7 question that this witness is flaunting this Court's 8 instructions, He has said h e 's trying to comply, he, in 9 fact, has hot. I think his behavior on the witness stand 10 has shown that, and I think the examples that I gave Friday 11 when we talked about this illustrated perfectly. IS I would like nothing better than to limit what all 13 of you people are doing as far as time is concerned. The 14 problem is the way this witness refuses to answer questions, 15 there is no way that I can make a reasonable calculation ae 16 to how much longer the rest of the cross examination can 17 take. If he, in fact, were, answering questions the way 18 these questions should be answered, I think I would have a 13 basis to make some sort of general calculation as to how ao long the rest of the cross examination would take. I would ei be in a position to have a reasonable basis upon which to determine a limit as you've requested that I do. 3 Unfortunately the bBhavior of this itnass in this courtroom 24 makes any estimate, any reasonable estimate of how long a X given topic would take to cover in cross examination s virtually impossible. 3 So with the behavior of this witness in the 4 courtroom, I don't think that it is possible to establish a 5 reasonable limitation as to a time limitation, which I 5 understand is what you're asing For' of how long something 7 should take. I wish that weren't so, because -- well, it B shouldn't be so. But having sat through all oF the cross a examination, of course, and having seen what has happened, I xo don't think that there is a parson in this room on the basis li of the way this testimony has gone or not gone who can make is a reasonable estimate as to how long the rest oF it should 13 take, assuming that all of the important matters that were 14 covered on direct were to bs covered in cross examination. 15 So if his behavior changes, then I would be happy 16 to reconsider it. But at this point in time, with this 17 witness' behavior, I don't think that it is passible to be IB done. 13 Do you have any idea how long you'll take? 20 HR. CARR: No, Judge. I have a number of points 21 to go over with this witness. This point that w e 're going BE over was a point that I anticipated in covering in a 23 morning. It's now taken, because of this witness -- wsll, 24 I've already said -- no, I have no idea, because I have a 1C 1 number of, at least ten, fifteen points yet to cover with a this witness, and the subject that we're on ia Just one 3 point. Now, admittedly this is divided up into segments because there's e number of men to be examined, and the 5 other points won't be that involved or technical. 6 No, 1 can't give a judgment. I wish I could. I 7 had no idea this man would be this way* B THE COURT; You know, if his behavior changes and a he actually starts answering questions, then at that point 10 in time, whatever that point is in the cross examination, 11 I'll reconsider your motion. But at this point in time is there's no way in the world to reasonably calculate how long 13 cross examination of this witness should take, and I'm not 1H going to walk into that morass.. IS As I repeated before, talk to him again, get him 16 to conform his behavior to the rules, and if he does so, 17 then I will be happy to reconsider this. However, at the IB present time I don't think that it's possible to reasonably 19 figure how long it would possibly take. 20 MR. CARRi Your Honor, on this point, Counsel 51 suggested that I've baited the witness by telling him I 22 don't believe him, and I'd like to have a short -- I 'd like 23 to make a short response to that. The Court, will recall I 2H asked the witness a number of times, my question said what 1 documents are there in existence to support this view. He 2 said his recollection is in existence. I said no, I'm 3 talkino about uour documents, what documents are there, and 4 then he for a half a dozen different times, ha sage my 5 recollection. He knew and knows that I'm referring to 6 documents, and yet he insists on talking about his 7 recollection. It required me to tell him that I could not B tsst his recollection by cross examination or by comparing 9 it to a document. I simply would not take it. There was an 10 outburst at the end in which ha acused me of twisting the 11 facts or misinterpreting tha Facts, which was uncalled for 12 and required responses. No, 2 don't want any outbursts From 13 this man, contrary I want to get through with this cross 14 examination of him at the earliest possible time. I have 15 absolutely no intention of baiting him. 1 thought I treated 16 him with consideration throughout, much mors consideration 17 than he's entitled to in my Judgment. But anyway, I wanted r 18 that response, X have not baited him, and would not bait 13 him, and -- 20 MR. HEINEMAN: I think the record will demonstrate 51 that. 22 THE COURT : Okay. That's it. 23 24 XT 1 (The following proceedings were had in tho s presence of the jury:? 3 4 THE COURT: Qood morning. Mr. Carr. 5 6 DR. RAYMOND SUSKIND, 7 8 having previously bean sworn upon his oath, S testified further as follows: 10 11 FURTHER CROSS EXAMINATION IS BY MR. CARRj 13 Dr. Suskind, Friday wa were discussing tha past 14 medical, pre-1979 medical-d F Mr. Charles Farley. I'd like 15 to hand you all of the, up to and including 1S7S medical 15 records that Monsanto has given us relating to Charles 17 Farley. ia A Thank you. 15 Q And in the course of the questioning Friday you SO suggested that Mr. FarlBy's complaints as were relatBd to 1 you in '79 were imaginary. Do you recall that, sir? 2 A No, sir. 3 Q Sorry? 4 A No, sir. kij 1 You don't recall that uis want through tha '79 a records of Mr. Charles Farley, that you said ha had this 3 depression state, and in your Judgment the other complaints 4 that ha mada relative to pain and the nervous system and so 5 forth wore imaginary? 6 A No, sir. 7 You don't recall that at all, Dr. Suskind? B A I do recall what I said, air. 9 Q And you don't recall describing his complaints as 10 imaginary? 11 A N o . IS Q Or hia symptoms as imaginary? 13 A No. 14 Q Dr. Suskind, you recall wa were testing the i 15 statement of the AMA in which it was said in their summary IB that the symptoms have always cleared with time. Do you 17 recall that, sir? 18 A Yes, Ibelieve I do. 19 Q , And do you recall with respect to Mr. Farley, he SO had in 1379 dizziness, memory changes, fatigue, sleepiness, 51 depression, pains in muscles and joints? Do you recall 2S that, sir, that we went through that and your report in '73 S3 said that he currently had those particular problems, and he . 34 dated the muscle pain and ths joint pain From 1349? IQ 1 A I mould have to look at his chart to recall it, 2 sir. 3 It's Exhibit 1733. Do you have it there, sir? 4 A Wo, I do not, sir. 5 Q Would you give him Plaintiff'sExhibit 1733. S Probably in this stack here since iue mere using it. It la 7 here. a A Thank you. 9 Doctor, if you turn to page 17 of Exhibit 1733 you 10 will see that Mr. Parlay has checked joint and muscle pain 11 that he*s having currently, and that ha dates it from 1949. 12 Do you see that, sir? 13 A Yes. 14 And do you recall I asked you whetheror not these 19 problems he was having in 1979 were real problems or whether 16 or not they were imaginary? Do you recall that, sir, 17 relative to thBss pains? IB A Yes, 1 do recall that, sir. 19 Q And do you recall that you said that in your 20 Judgment they were imaginary? 21 A No, sir. 22 Q Doctor, you don't recallthat you said he had 23 depression in 1979, and therefore, it was your Judgment that, 24 these complaints that he had relative to pain were not real J 4. / X and were imaginary? 2 A No, sir. 3 Are you saying, Doctor, that you didn't testify 4 that way the greater part of Friday afternoon? 5 A I 'm saying that I testified in another way, sir. B a Did you not tell us and the Jury that these muscle 7 pains that he described in this exhibit wars in gour a judgment imaginary? 9 A No, sir. 10 Do you recall that we went into whether or not he 11 was neurotic? 12 A Yes, I do, sir. 13 And we want for sometime as to whether or not 14 neurotic people have imaginary complaints, believe that they 15 have the problem, but they're really imaginary. You don't 16 recall that, do you, sir? 17 A Yes, 1 dp recall that, sir. 19 Doctor, to put it to you again, do you believe 19 that the muscle pains that hr. Farley was having in 1979 20 were real muscle pains or were imaginary muscle pains? 21 A I can't answer that question, sir. 22 Wall, I want the judgment that you had in 1979, 23 sir, of whether or not these complaints that he had at that 24 time were real, sir. io 1 a a 4 s` 6 7 B 3 10 11 IS 13 14 15 16 17 ia 19 80 81 HS 83 84 A He believed they mere real, sir, yea. a All right. Now was he, in fact, in your judgment, based upon the records that you had up to that tima, air, and including that record, were they -- was he really having these pains? A We didn't believe that he was having them to the extent that he aaid he was, 1 think -- Doctor, let me ask you on that point, air. A What I 'm trying to say -- Q Let me interrupt you on that point. Was ha having the pain -- NR. HEINEMAN: Objection to the interruption, your Honor. May the witness finish his answer? THE COURT; Mr. Carr, you may proceed. .Overruled. Q CBy Mr. Carr) Dr. Suskind, what I'm interested in, was he having the pains, whether they were to /the extent that he says is not what I'm asking you, sir. Focus in on this, Dr. Suskind, was he having the pains in your judgment in 1979? A I don't believe that he was having them. But he believed he was, sir. Q All right, Doctor. A He believed he was. Q He wasn't having the pains in your judgment; 1 correct, air? a A Right. 3 Q But he believed they were. And these pains that 4 hB said he was having ware not there, were they, sir, In 5 your judgment? E A They ware probably not there, sir. 7 Q Well, did you make a judgment that they weren't 6 there, sir? You're now saying probably weren't -- S A They weren't there. 10 Q They weren't there? 11 A They weren't. 18 Q That means then that he imagined these pains; 13 correct? 11 A No, sir. 15 Q Doctor, if they were not there, they don't exist IB correct, sir? They'rB not real; is that correct, sir? 17 A They may not be real, sir. IB Wall, Doctor, is your answer that they are not 13 real? IF they're not there, they're not there, are they, SO sir? SI A They're not real, sir, yes. 82 Q All right, they're not real. IF they're not real, 23 than, sir, they are imagined, aren't they, sir? 24 A No, sir, that's not the alternative. J cu 1 What Is the other alternative? e A The alternative, air, is ha believed ha had the 3 pain, 4 Q I understand that. 5 A As a neurotic, air -- 6 I understand that, sir. 7 A As a neurotic who was depressed, it was something 0 that he felt he had -- 9 But hs didn't really -- 10 A -- even though he didn't. That's not imaginary. 11 Not at all. 15 Q Doctor -- 13 A There is another alternative, sir. 14 If he believes he's having pain, but h a 's not 19 really having pains, thass are unreal pains, are they not, 16 sir? 17 A They're unreal, yes. 18 He is imagining pains that are not really there* 19 correct, sir? 30 A No, not -- SI Q IF they're -- what ia the opposite to real, 2 Doctor? Is it unreal, imaginary, fictional, makB-up? What 23 is the opposite of real? 24 A There are a number, insofar as pain iB concerned, ci 1 Insofar as pain is concerned, ha may believe that he has 2 pain and may convince himself that he has pain, even though 3 the pain is not there, even though the pain is not real. 4 But he may feel that he has pain. 5 Q Doctor, I certainly agree with you on that point. 6 A Okay. 7 Q That's not my point. I 'm sure by now you know B that's not my'point.. You said these pains are not real -- 9 MB. HEINEMAN: Objection, your Honor. May Counsel 10 approach the bench? 11 THE COURT: Yes, you may. IB 13 CThe fallowing proceedings were had at the bench 14 out of the presence and hearing of the Jury:) 15 IB THE COURT: Before you make your objection I want 17 to state something. This is a perfect example of why I 18 don't think anyone in this room is capable of making 19 estimates of time as to how much longer this will take. SO The last part of Friday afternoon ha stated that the pain SI was, in fact, imaginary, the fatigue was imaginary, that the SB dizziness was imagined, and then stated that ail of his S3 problems wars, in fact, imagined. He's now stating ha 24 didn't say it. cc 1 That's Just an example of what I was saying back a in chambers, that your request for a limit, the way things 3 have gone here, I agree a hundred percent that thare should 4 be a limit, I wouldn't have any basis on which to calculate 5 one. 6 What objection do you have? 7 MR. HEINEMAN; My objection, your Honor, is to Mr, B Carr's statement. He just made a statement to this witness 3 that ha knows that what h e 's saying is not in fact what h a 's 10 saying. Mr. Carr is saying that he knows the opposite is 11 true of what the witness has just said. Mr. Carr does not IS have the right to make a statement like that. He has the 13 right to ask the witness questions. I object to the 14 statement. It's a Jury speech. It's intended to make an 15 argument to the Jury about what the witness is doing on the IB stand. It's not a question. 1 object to it. I move that 17 it be stricken. I ask the Jury be instructed to disregard IB it. 13 MR. CARR: Your Honor, I wonder if it might save 20 us sometime if you would tall the witness not Just to assume 21 that he said these things, but tell him, in fact, that he did 22 say that these problems wars imaginary, and that this is an 23 unnecessary cross examination that we're going through 24 because he said Friday afternoon that these problems that 1 Mr* Far lay had mere imaginary, so uia need not go through a this again. 2 don't think it's enough just to tall him to 3 assume. I think the Court should tall him that he, in fact, *4 said it, that they were imaginary. 5 MR. HEINEMAM: Well, your Honor, that isn't in 6 response to my objection. Mr. Carr is going off on another 7 point. 6 THE COURT: Yes. Do you have any response -- 9 MR. CARR: Mo,, this is on the same point, your 10 Honor. I'm trying to tell this witness that what he is 11 saying is exactly what I've asked him is not true, that IB these ars not real, and that, therefore, they are imaginary. 13 That was the point of my interruption of the witness' 14 statement. 15 MR. HEINEMAN: That isn't the point. That isn't 16 the point that he made the statement cm, your Honor. I 17 still object to it, and I would ask tha Court's ruling, and IB then I would like to address the point that I1r. Carr just 19 raised. eo THE COURT: Why don't you address the point that si he raised. E MR. HEINEMAN: Okay. The point that Mr. Carr just S3 raised, I object to your instructing this witness with 24 respect to what he has or has not testified to. Mr. Carr ci 1 has certainly -- I guess ha doesn't have a transcript. e THE COURT: Not yet. 3 tlR. HEINEMAN: I object to that. I don't think it 4 is utithin tha Court's providence to be instructing a witness 5 as to what hia testimony has bean. IF the witness doss not 6 remember it, then he doesn't remember it, or if he remembers 7 it differently, then hs remembers it differently. But I 8 don't think it's within tha Court's providence to instruct 9 him as to what his testimony has been. 10 MR. CARR: Your Honor, I think it*3 going to be U essential that the Court does this from time to time Dr we IS will never finish with this witness. If two minutes after I 13 establish a point, or a day after I establish a point, or 14 five minutes after I establish a point I have to go back and 15 reestablish it. This man is not stupid. Ha knows exactly 16 what he's doing. Ha can't say this is old age. Tha man is 17 as sharp as a tac. He may get tired, but thara's no IB indication to ms that he's ever gotten tired. He's 19 certainly not tired now. H e 's perfectly capable of SO remembering what he said. He is not senile in the least. SI He is deliberately doing this in order to require me to ss reestablish these points, and so that tha jury will miss the 23 main point that I 'm heading for. It's planned -- it*s 24 planned on his part. 1 THE COURT: I 've got to think about telling him 2 that he, in fact, said -- to tall him to assume that he in 3 fact said it. I 've got to think about that. 4 MR. CARR* All right. 5 THE COURT: I think that the preferable thing For 6 you is to ask him to assume that, because when this came up 7 again I reviewed my notes, there's no question that it was 8 said. So you may proceed on the assumption of that, and 3 that's going to make your objection irrelevant. So I'm 10 ordering that uia proceed on this basis and your objection is 11 denied. 18 MR. CARR: When I ask him to assume it, you're 13 going to have to tell him that he said, it, that it la in 14 evidence that he said it. You're going to have to make the 15 decision as to whether it is or is not in evidence. 18 THE COURT: If he doesn't accept the assumption. 17 MR. CARR: Right. 16 13 (The following proceedings were had in the SO presence and hearing of the-jury:} SI ee Q (By Mr. Carr) Doctor, in order to save us 3 sometime, I would like you to assume that Friday you 24 testified that the achss and pains and the fatigue and the CO I 1 dizziness, those symptoms that Mr. Farley displayed -- or s said that he had in 1378, I'd like you to assume please that 3 you testified Friday that thsy wars imaginary. Would you do 4 that? 5 A I mill assume that. 5 Sir? 7 A I mill assume that. 0 Q Noui, that being the case, would you look at the S records, and I'd like you also to assume, sir, that Friday 10 you testified that the evidence that you had to support your 11 opinion that these symptoms on his part were imaginary was 12 his statement that he was depressed in '73. Will you also 13 assume that, air? 14 MR. HEINEMAN: Objection, your Honor. May Counsel 15 approach the bench? 15 THE COURT: Yes, you may. 17 18 CThs following proceedings were had at the bench 18 out of the hearing of the JuryrD 50 ai MR. HEINEMAN: Your Honor, that's an incorrect 22 summary. The man testified not only that the record 23 established that he was depressed, but he also testified 24 that thB man -- that the record established that thB man had 1 a job, that he was working steady for the state, and that 5 the man had been seen in physical examination, he was well. 3 I think the doctor said he was doing fine, all of those 4 things mere taken into consideration. 5 M R . CARR; I'll accept that, your Honor. 6 M R . HEINEMAN: All of those things. 7 B CThe following proceedings were had in the 9 presence and hearing of the jury;) 10 11 CBy Mr. Carr} Doctor, I'd like you also to assume 12 that in addition to the depression statement that he made to 13 you that you also predicated your opinion upon the fact that 14 he was working at his Job, and looked fine in *73 and in 15 'S3, and that you also -- and then I asked you whether or IB not you knaui of any medical records to support any finding 17 that these complaints were imaginary. Now will you assume IB those things, sir, that this went on Friday? 19 A Assume what medical records, sir? 20 Q Just what I told you, assume the things that I 21 said, that I recapped what went on Friday afternoon. Would 22 you assume that, sir? 23 A Okay, 1*11 assume that. 24 Now, I have given you the medical records that CO 1 have been given to us* I mould like for you to look at a those medical records, sir, and eeeif there is anything in 3 the medical records that are there to support an opinion 4 that the problem nr. Farley was having in 1973 were 5 imaginary? 6 A I will. But these are -- these are not the 7 medical records 1 was referring to, sir. a Q Doctor, these are all themedical records that we 9 have been given of Mr. Farley up to 1979 when you examined 10 him. Are there some other medical records that existed up 11 to 1979 that you used, sir, that we haven't been given? IS A I can say that in some instances, and I can't say 13 it was true here, that we did refer to the plant medical 14 records. 15 Doctor, I've asked far all of the medical records 16 that Monsanto has relative to Mr. Farley, and what you have . 17 are all the medical records that wars delivered to me that 19 existed up to 1979 and including at least the first eight to IS nine months of 1979. 50 MR. HEINEMAN: Your Honor, excuse me, am I to 51 assume that the plant records are not there? ea MR. CARR; Counsel, I have no idea whether these S3 ars plant records or what thssa are. I 've asked you for all. E4 the medical records that Monsanto had relating to Charles 1 Farley that wars in existence since 1353 up to the present \ a time, and this is what you've given me that apply up to 3 1973. 4 MR. HEZNEMANj This includes the materials that 5 you got from Dr. Carnow in Nitro ia that right? 6 MR, CARR: 1 have no idea what you're talking 7 about, Counsel. 6 THE COURT; Gentlemen, could the two of you 3 approach the bench, please. 10 11 (The following proceedings ware had at the bench ie out of ths hearing of the jury:3 13 14 THE COURT: I 'd rather have this discussion up IS hers. IS MR. HEINEMAN: Okay. Your Honor, whan he says he 17 has no idea what I 'm talking about, I mean that can't be a ia genuine statement. He knows exactly what we're talking 13 about. When we discussed ths records that ware provided to 20 Dr. Carnow in the Nitro case, and that we constructively 21 produced in this case, h e 's already admitted that to the 22 Court in chambers, S3 MR. CARR: Your Honor, I have never -- the only 24 thing I've gotten from Dr. Carnow relating to Mr. Farley wee JU 1 this physical examination in '79, the examination that this 2 man conducted in 1979 I 've asked hare in Court for Counsel 3 to furnish me all the medical records they have in existence 4 since 1953 up to the present time* They have given me Or, 5 Carnow's report, and his examination of the man, which in 6 poet 1973, they have given me other material which la post 7 1979, they have given me the Moses and Selikoff Study which B is pre h i a examination in 1979, and they have given me his 3 1979 exam. Now that's all the records that I have. 10 MR. HEINEMAN; Your statement -- 11 THE COURT; Let's see what's in there. While IS you're in there what's going on with -- 13 MR. CARR: They just'turned it over this morning, 14 I haven11 had a chance to look at it. 15 THE COURT; As long as its been found. 16 MR. KEINEMAN: I want to be sure I understand that 17 you have been given no plant medical records, either IB constructively or -- IS MR. CARR; I have no idea what you've given Dr. 20 Carnow. I didn't ask Dr. Carnow for this material. This HI was not material associated with my plaintiffs in this case. HB He may have gobs of material relating to all the Nitro 23 plaintifFs. But in order to avoid that I asked you for all 24 the medical that you have since 1979. You have naver told 1 ms that this is in addition to what Dr. Carnow has. \ a HR. HEINEMAN: Since 19737 3 MR. CARR: Since 1953, I'm sorry. I have no plant 4 records at all. 5 MR. HEINEMAN: You hava no plant records -- 5 MR. CARR: Unless these are the plant records, t 7 have a whole stack of them thare, I assume they*re the plant Q records. I don't know whether they are or not. They all S have your numbers on them. 10 THE COURT: Let's see what he says ha's got. 11 D a 'll go from thare. le 13 CThe following proceedings were had in the 14 .presence and hearing of the jury:) 15 IS Q CBy Mr. Carr) Doctor, hava you had a chance to 17 examine the records, air? 18 A Nat completely, sir. But X can say that these are 13 not -- these are not the medical records that we would have SO had access tD, sir. SI Q Those are not the medical records that you had 2 access to? 23 A No, I'm talking about the medical department 24 visits to the medical department at Monsanto. While I 1 haven't gone through those thoroughly, 1 don't see the kinds "X s of records of the nurse or the examining physician at 3 Monsanto. These are Ulest Olrglnia University records. 4 They are hospital records of hospitalizations for Mount 5 Sinai examination of the group which includes Mr. Farley, 6 and we did not have access to these, sir. X am not 7 referring to these medical records* B q Doctor, didn't you have access to these medical 9 records? 10 A No, sir. Well, we didn't certainly have access to 11 the Mount Sinai records bscauBB they weren't available at IS the time. 13 Q They were all mads in April, the examinations took 14 place in April of '79, sir. 15 A Yes, but we didn't refer to them, because we were IE doing our own apidemsologic study and had no interest in 17 what that group found. Uls were interested in what we found. IB Wall, Doctor, let's look at these medical records 19 that we have been furnished. Would you, sir? Thera are 20 some tabs on the medical records that-you have there. Do SI you see the one where there's Tab 7, 8 and 9, sir? 55 A Yes, I do. S3 24 1 CFlaintiFF's Exhibit 1755 uas marked For s identification by the court reporter.) 3 4 Q (By nr. Carr) Doctor, PlaintIFF'a Exhibit 1765 is 5 part oF the medical records that I 've given you, is it not, 6 sir? 7 A Yes, sir. a 9 CPleintifF's Exhibit 1753 was marked For 10 identiFication by the court reporter.) 11 IS Q (By Mr. Carr) Plaintiff's Exhibit 1763 is also a 13 part oFthose records, are they not, sir? That mould be the 14 tab numbered 9. 15 IB CPlaintiFF's Exhibit 1764 was marked For 17 IdBntiFication by the court reporter.) IB 19 Q * CEy dr. Carr) You can see that they're the same, SO are they not, Doctor? Here. 1764 is. also a part oF the SI records that have bean given you, that mould be tab number 82 B, Doctor. S3 MR. CARR: Your Honor, For the record, 1763 is 4 this exhibit. It has a number -- 1 THE COURT: Okay. e MR. CARR: 1763 is the rather dark exhibit. 1764 3 is this final exhibit. 4 THE COURT: Fine. Thank you. 5 MR. CARR: Your Honor, I'd liks to offer these 6 into evidence. 7 HR. HEINEMAN: Your Honor, may Counsel approach B the bench? a THE COURT: Sure. 10 11 CThe following proceedings ware had at the bench IS out of the hearing of the jury:} 13 14 MR. HEINEMAN: Your Honor, first of all, I would 15 ask that we have the antirs group of records which have been 16 offered to the witness to be marked so that wa can,have a 17 record of what it is he's bean given by Mr. Carr to look at. 18 MR. CARR: Sura, that's no problem. 19 THE COURT: Fine. 50 MR. HEINEMAN: And, secondly, uie would object to 51 ths admission of 17BE, 1763 and 1764 in that as 1 understand 55 it there's been no foundation laid with respect to the 53 admission of these documents. As I understand what Mr. Carr, 54 just told the Court, he never got from Or, Carnow any 1 Counsel, outside medical records that you have in your -- \ s Monsanto had in its files relative to Charles Farley. They 3 are the type of records that expert witnesses, medical 4 witnesses rely an in arriving at a diagnosis, and forming 5 judgments, and this is not to prove whether or not this man a did, in fact, have these problems, but for the purpose of 7 examining those records as to whether these man's complaints 8 are real or imaginary. The whole business of using these 3 records is caused only because this man says the record, the 10 medical records that he has seen, or this medical record 11 that he has right now la actually what ha's talking about. 18 Hie own examinaion tells him that these complaints are 13 imaginary. This is for tha purpose of impeaching that 14 statement. IS THE COURT; So, in other words, you're saying -- IB MR. HEINEMAN: Your Honor, once they're in, 17 they're in. The point is there's bean no foundation laid. IB Ha has continually said that medical records can be used to 19 cross examine the witness, but you can't put them into 20 evidence without laying some sort of foundation for their 81 admission. Mr. Carr has objected to this all the way along 22 in this trial. 23 MR, CARR: I have never objected to any foundation, 24 on any medical records. You have brought in thB plaintiffs' JO 1 medical records and used those to cross axamine our doctors a without any foundation aver because we admit that they are 3 authentic by having -- by the fact that you got them From 4 the doctors. These are authentic records which the Court 5 can take judicial notice of the fact that they're authentic, B and that you gave them to us. 7 THE COURT: For the limited purpose I will allow B them in. a MR. CARR: Yes. 10 u CThe following proceedings were had in the IB presence and hearing of the jury;} 13 14 CPlaintlFf's Exhibit 1765 was marked far 15 identification by the court reporter!) IB 17 MR. CARR: Your Honor, I 'd offer Plaintiff's IB Exhibit 17B5, group exhibit, at this time representing that 19 it is the medical records that Monsanto has given to us 0 relating to Charles Farley For his medical records up to and SI including '79, 1979, 5 THE COURT: Your objection to 1765? 23 MR. HEXNEMAN: The same position we took before, 4 your Honor, with respect to the portions -- aa 1 THE COURT: Right. It's admitted over objection. 2 CBy Mr. Carr) Doctor, Exhibit 1782 has in the 3 middle of it as a diagnosis Peyronies Diseasei is that not H correct, sir? 5 A That's correct, sir. 6 0 That's dated as of 1376, is it not, sir? 7 A Yes, it is, sir. 8 0 It's a hospital record and it's signed by a 9 physician, is it not, sir? 10 A It's a summary statement, sir, yes* 11 It's signed by a doctor, isn't it, sir? 12 A Yss. 13 D This is the type of record tha doctors and other 11 experts customarily rely upon, is it not, sir? IS A No, sir. 16 Q You don't customarily rely upon what other doctors 17 have said about -18 A Yss, us do, sir. 19 Q This is one of those records that a doctor had SO said something about a patient; isn't that correct, sir? 21 A Only one of them, sir, yee. 52 Q Yes. And this is the kind of record that doctors 23 customarily and ordinarily use and rely upon when they're 1 treating thsir patients and arriving at opinions about their 1 patienta? s A No, sir. 3 a You don't rely upon what other doctora have said? 4 A Yea, wa do. 5 Q This is what some other doctor has said, is it 6 not, D r . Suskind? 7 A This is simply a diagnosis, yes. a Q It's the diagnosis of another doctor, isn't it, a sir? 10 A r Yb b . u Q Don't you rely upon that in forming your own? You e may take it as untrue, you may take it as imagined, but it's 13 the kind of record that you and other doctors customarily 14 rely upon, that is hospital records, is it not, sir? 15 A Hospital records, yes, sir. 16 Q This is a hospital record, isn't it, sir? 17 A It's a summary of a hospital record, sir. ia Q Is it part of a hospital record, Doctor? 19 A Yes, it is, sir. 50 Q Now, Doctor, this diagnosis that he mads there on 51 Mr. Farley in '76 was Peyronies Disease, was it not, sir? 55 A Yes, it is, sir. 23 Q Would you say that the Peyronies Disease, that if 4 he had it in '76, that it was imagined, sir? 1 A No, sir. Q All right,doctor, the nextexhibit, 1763, is a 3 record dated 1965, ie it not, air, and by a Dr. Donald 4 Gilbert? 5 A Yes, sir. 6 Q Doctor, this record shows, does itnot, that he 7 had -- B MR. HEINEMAN: Excuse me, gour Honor, hay Counsel 9 approach the bench? 10 THE COURT: Sure. 11 is (The following proceedings were had at the bench 13 out of the presence and hearing of th Jury:5 14 15 MR. HEINEMAN: Your Honor, I would object to the 16 use D f 1762. I know that it was admitted for the limited 17 uaa of impeachment as to the witness* prior testimony. The IB witness testified or was asked on cross examination by hr. 19 Carr with respect to certain complaints or symptoms of eo pains, aches, dizziness -- I don't remember what -- fatigue. El Fatigue, dizziness, muscle ache. HS I don't have any recollection whatsoever of this 23 witness being asked about a symptom or complaint of 24 Peyronies Disease. This witness denied that this man had a 42 1 symptom or complaint of Peyronies Disease. 1 don't think \ 2 It's proper Impeachment and I object to It. I ask that it 3 be stricken. Z ask the Jury be Instructed to disregard It. 4 MR. CARR: Your Honor. Peyronies Disease is a 5 painful thing. Thera'a no question but uihat it causes pain. 6 I think this witness established that it is in the past, 7 simply for that point and that point alone. e THE COURT: I didn't hear thB last part. 9 MR. CARR: Simply For that point and that point 10 alone. 11 MR. HEINEMAN: The '73 report says h e 's got 12 Peyronies Disease, pain on erection, head of penis turns up. 13 MR. CARR: There's a point then that is admitted 14 by you, is it not, sir? So why thB objection of 17B2? 15 MR. HEINEMAN: You've got this to impeach him. IS You're trying to us this to claim this is something he 17 didn't say. It's patently false. I mean ha doesn't say in IB the record the guy has Peyronies Disease. 19 THE COURT: I don't think that's the point of his 20 use. His use of it was limited, his use was pain related to 21 that. I don't think your objection is well taken. It's 22 overruled. 23 24 43 1 (The following proceedings were had In the \ e presence and hearing of the jury:) 3 4 CBy dr. Carr) Doctor, Peyronies Disease is 5 painful, is it not, sir? 6 ft It can he, sir. 7 Q Well, is it painful in your judgment? Was this 8 the kind of pain that this man was imagining in this case, S pain from Peyronies Disease? 10 ft If ha had pain, it was probably not imaginary, 11 sir. IS G Doctor, if he had pain, none of it is imaginary if 13 ha had pain. 14 ft IF ha had pain from the Peyronies Disease, which 15 is whet you're asking ms, sir, it wouldn't be imaginary. It 15 wouldn't be imaginary. It would be real. 17 Q Pain from a muscle ache, pein from a Joint is not IB imaginary if it's there, is It, sir,? 19 ft It could be imaginary. SO G Doctor, my question is if it is there, it is not SI imaginary, is it, sir, Just like if he has Peyronies ss Disease, and he has a painful case of Peyronies Disease, it S3 is therB and not imaginary, isn't it, sir? 54 ft In the case of Peyronies Disease, yes, sir. H4r 1 D B u t i n t h e c a s e o f a man h a v i n g p a i n '-in h i s 'V 2 m uscles and j o in t s , th a t kind o f pain i s im aginary? 3 ft I t ' s more l i k e l y t o b e i m a g i n a r y , s i r . 4 D D o c t o r , why i s a p a i n f u l m u s c l a mare l i k e l y t o be S im aginary or p ain in a m uscle or in a j o i n t more l i k e l y to 6 be imaginary than pain in the pen is? 7 ft P e y r o n i e s D i s e a s e i s c h a r a c t e r i z e d by i n f l a m m a t i o n 8 and s c a r r in g . 9 Yes. 10 ft I n f l a m m a t i o n and s c a r r i n g . I t h a s a d e f i n i t e 11 p a t h o l o g y . ie C Y e s . 13 ft ftnd i n t h e c a s e o f t h e p a r s o n s who c o m p l a i n e d \ 14 a b o u t m u s c l e p a i n , we took, b i o p s i e s , s i r , and t h e r e was no 15 p a t h o l o g y -- 16 HE. CftER: Y o u r H o n o r, t h e w i t n e s s h a s g o n e way 17 b e y o n d my q u e s t i o n . 10 D Ey Mr. C a r r } My q u e s t i o n , D r . S u s k i n d , was 19 r e f e r r i n g t o p a i n , n o t t h e o b j e c t i v e - ' p r o o f t h a t t h e man d i d ao o r d i d n o t h a v e p a i n . My q u e s t i o n r e f e r s t o t h e r e a l i t y o f E l th e p a i n . I s t h e p a in t h a t db has when he h a s p a i n f u l 22 m u s c l e s o r p a i n f u l j o i n t s , i s t h a t p a i n r e a l t o t h e p a r s o n , 23 s i r ? 24 ME, HEINEMAN: O b j e c t i o n , y o u r H o n o r . m 1 Q CBy fir. Carr} Is it real pain? 2 MR. HEINEFIANt Objection, your Honor, the question 3 was as to the difference between them. I think that's what 4 the doctor was answering. 5 THE COURT: Objection is overruled. 6 THE WITNESS: What is this question? 7 NR. CARR: Could you read the question? 8 S CQusstion read.) 10 11 THE WITNESS: Yes, it could be real to the person. IS CBy Mr. Carr}. Well, Doctor, if he has it, it is 13 real, is it not, sir? By definition, if he has pain, that 14 pain is real, isn't it, sir? 15 A No, sir. 16 Q Doctor, a rose is arasa, isn't it, sir? Pain is 17 pain, isn't it, sir? IB A He couldcomplain ofpain, sir. 13 Q Doctor, I didn't say complain of pain, did I, sir? 20 I didn't say if he complains of pain that means he has pain. HI You didn't understand me to say that, did you, sir? 22 A No, sir. 23 I know you didn't. Mow, Doctor, what I said, what 24 if he has pain, not if he complains oF pain, but if he has ------------------ ------------- ------------------------4S--- 1 p a i n , t h a t p a i n i s t h e r e , i t ' s r e a l , i s n ' t i t , s i r ? IF he 2 has pain in h is muscles. 3 A Ha. 4 0 D octor, i f he has pain in h is m uscles, does he 5 have pain in h is muscles? 6 A rty a n s w e r w a s n a . 7 0 D o c to r , do you u n derstan d t h a t what y o u ' r e s a y i n g , e I propose to you, s i r , i f he has pain in h is muscla he has 9 pain, doesn' t he, s ir , in his muscles? 10 A He may b e l i e v e he h a s p a i n . 11 Q I d i d n ' t a s k yo u i f he b B l i e v e d i t . I s a i d i f h e 12 h a s t h e p a i n . I d i d n ' t s a y i f h e b e l i e v e s h e ha d t h e p a i n 13 or w asn' t r e a l . I s a id i f he has the p ain , he has the p a in , 14 h a s n ' t h e , s i r ? 15 A P a i n i s a s u b j e c t i v e symptom, s i r . 15 Q But i t e x i s t s whether i t be s u b je c t iv e or 17 o b j e c t i v e . D o e s n ' t p a i n e x i s t , s i r ? IQ A H o t i f i t ' s s u b j e c t i v e , . n o, s i r . 15 You mean t o s a y a p e r s o n h a s p a i n , a n y p a i n t h a t 20 i s s u b j e c t i v e d o e s n ' t e x i s t ? 21 Ho. Some p a i n s t h a t a r e s u b j e c t i v e may n o t b e \ 25 r e a l , s i r . T h a t ' s w h a t I ' m t r y i n g t o s a y . 23 D D o c t o r , i f i t ' s n o t r e a l , i t ' s i m a g i n e d . My 24 q u e s t i o n , s i r , i f y o u h a v e a p a i n f u l b a c k and y o u c a n ' t 1 prova it to anybody, you have no signs of arthritis, you've e got no sign of a ruptured disc, you've got no sign of 3 inflammation, you've got a painful back, that pain exists in 4 your back, doesn't it, sir? 5 A It might. B Q No. If you have it, it does exist, doesn't it, 7 sir? 8 A No, not necessarily, 3 0 By definition, Doctor, if I have pain, if I have, 10 in fact, gat pain, I'm having pain, aren't I, sir? 11 A IF it's real, sir, yes. If it's real, the person 12 has pain. 13 Q All right. Real pain can exist without any 14 objective findings, can't it, sir? 15 A It might. 16 It can. It exists all the time, doesn't it? 17 A Yes. IB You have real pain in the head, and no objective 13 findings? 20 A Mo. Correct, sir. 21 D Your throat can hurt, no objective findings; 22 right, sir? 23 A No, sir, not really. 24 Q You can't have painful throats without objective na 1 Findings? 2 A I don't believe so. 3 Q Let's pass that. You can have painful muscles in 4 the arms without objective findings, can't you, sir? 5 A Yes. 6 Q Doctor, all kinds of pain, most pain as a matter 7 of fact, exists without objective findings, don't they, sir? a It is by definition a subjective complaint, isn't it, sir? 9 A subjective symptoms, isn't it, sir? 10 A Yes, sir. 11 That means it can't be proven objectively, 12 correct, sir, because it's subjective; right? 13 A Yes, sir. 14 Q Now it's Just as real, is it not, whether it's 15 subjective or objective, isn't it, sir? It's Just as real, 16 isn't it, sir? 17 A No, sir. 18 Q Doctor, you mean to say the pain that one feels is 19 not real simply because it's subjective? 20 A N o . 1 Q It is real, isn 22 A N o . 23 It isn't real? 24 A No. 1 Q Pain on feels is not real? \ 2 ft It may be believed, but may not be there. 3 0 Doctor, if I came up here and with a sharp point 4 stuck you with that point, that would cause you pain, 5 uiDuldn 't it, sir? 6 ft It would. 7 That would be real, wouldn't it, sir? 8 ft Yes, sir. 3 Q ftnd you would be -- and that would be subjective, 10 wouldn't it, sir? IF you told us you had pain, that would 11 be subjective, wouldn't it, sir? 12 A Yes, sir, 13 Yeah. And nobody could prove that you were having 14 pain, could they, sir? Mo one could disprove that you were 15 having pain, could they, sir? 16 A ThBre are tests for that kind of pain, sir. 17 Q Well, none of those tests mere psrformad>upon IB these men, were they, sir? 19 A Mo, sir. 20 Q All right. So, Doctor, and those tests are not 21 ordinarily performed upon people, are they, sir? 22 A It depends an the situation. 23 D So at this point in time, if I stuck you with 24 something sharp and did not leave a hole in your arm and you 1 Monsanto plant records. What ha got wars other records 2 MR. CARR: I've asked For you -- you for these 3 records, Counsel, I didn't ask Carnoui. 4 MR. HEINEMAN: You agreed in chambers, Mr. Carr, 5 that we didn't have to produce -- 6 MR. CARR: Not at that time, Counsel. Ufa ware not 7 talking about those exhibits at that time. I wanted to gat e from you in one bundle ell of the medical records that you 9 had existing since 1953 and that's what the purpose of this 10 -- I went from these 36 men from you -- ii MR. HE1NEMAN: You're talking about this most 12 recent request? 13 MR. CARR: No, it was about a month ago. It was 14 when this witness, two or three weeks ago, at least when 15 this witness first took the stand. 16 MR. HEINEMAN: All right. And you were informed 17 at that time, I think by Mr. Nassif, that there were certain 19 documents that had already been made available through 19 Nitro. Now, as I understand it, Judge, Mr. Farley was a HO plaintiff in the Nitro case. 21 THE COURT: Wait a second. If I remember 22 correctly, the Nitro record response was later. I think 23 that's where it was agreed to. I don't think you referred 24 to Nitro in response to that original one. It was about JQ 1 three weeks or a month ago. 2 H R . HEINEMAN: In any event first of all, in 3. connection with these records. Hr. Farley, I believe was a 4 plaintiff in the Nitro case. I believe that Dr. Conibsar 5 did an analysis of thBse kinds of records of the Monsanto 6 plant records on the Nitro plaintiffs. So to say that Hr. 7 Carr didn't gat those documents from Dr. Carnow, which is e the agreed source of those documents, 1 think is crazy. s They have them. She's analyzed them. He can have them from 10 him. u HR, CARR: Vour Honor, I didn't gat the records. 12 I 'm not even talking about those records. That's not the 13 point of this question right now that's pending before the 14 Court. 15 HR. HEINEMAN: Okay. In any event, in connection 16 with the offer of these exhibits, there has been no 17 foundation laid for the admission of these exhibits. I 18 don't know whether these are outside medical records that IS were obtained from some hospital, if they came from Mount 20 Sinai and their examination, or whether any of them came 21 from Monsanto's internal records. Looking at this it 22 doesn't look like any of these are internal Monsanto 23 records. 24 MR. CARRc They're obviously on the Face of them, 50 1 to ld us you had pain, you mould r e a l l y be having th e p a in , a wouldn' t you, s ir ? 3 A Yes, sir. 4 Q And i t mould be a s u b j e c t i v e c o m p l a i n t , w o u ld n ' t 5 it, 3ir? 6 A Yes, sir, 7 And it would be real, wouldn't it, sir? 8 A It would be real, sir. 9 Q And the pain one has in his muscles, if he has 10 pain, it's also real, just like tha pain -- 11 A No, sir. No, sir. 15 Q It's not, sir? 13 A Mo, sir. 14 Q Doctor, why isn't muscle pain real? What makes 15 muscle pain or joint pain not real? 16 A It could be that the person believes they have 17 pain, but they do not really have pain. IB I understand that, Doctor. I understand that, 19 I'm not talking about their belief now. Am I, sir? Do you 50 understand I'm not talking about their belief? 21 A This is what I'm trying to get at. 55 Doctor, do you understand that I don't want to 23 talk about beliefs at this point. I'm first trying to 54 establish, sir, that pain can really exist. If you're Si- 1 having pain, yo u 're having pain, a re n ' t you, s ir ? E A No. 3 D octor, what do you b s l i e y s I s a id ? 4 ft I f y o u ' r B h a v i n g p a i n , y o u ' r B h a v i n g p a i n . 5 Q Yss. 6 ft I t h i n k t h a t n e e d s a q u a l i f i c a t i o n . 7 I f I ' m w a l k i n g , Iam w a l k i n g . B ft I t n e e d s a q u a l i f i c a t i o n , s i r , w i t h r e s p e c t t o S pain. 10 Q D o c t o r , t h e q u a l i f i c a t i o n y o u w a n t t o g i v e i s t h a t 11 i f h e o n l y b B l i a v e s h e ' s h a v i n g p a i n , h e ' s n o t h a v i n g p a i n . IE ft No, n o t n e c e s s a r i l y . 13 Q U l e l l , w h a t q u a l i f i c a t i o n d o y o u w a n t t o g i v e , D r , 14 S u s k i n d ? < 15 A I t h i n k t h a t o n e h a s t o t a k e i n t o c o n s i d e r a t i o n IB t h e b e h a v i o r o f t h e i n d i v i d u a l , a n d i n t h i s i n s t a n c e we f e l t 17 t h a t t h e b e h a v i o r o f t h i s i n d i v i d u a l uias s u c h -- . IB Q. ' I ' m n o t e v e n t a l k i n g a b o u t t h i s i n d i v i d u a l a t t h i s 13 t i m e , I ' m t r y i n g t o e s t a b l i s h a p r e d i c a t e , a b a s i s b a f o r e I E0 g o t o t h i s i n d i v i d u a l . D o n ' t y o u u n d e r s t a n d t h a t , s i r ? 51 ft I d o . 55 Q I s a i d t o y o u , s i r , i f o n e i s h a v i n g p a i n , o n e i s 53 h a v i n g p a i n , a nd y o u s a i d n o . Do y o u r e c o g n i z e t h e 54 a b s u r d i t y o f w h a t y o u s a i d , D r . S u s k i n d ? SB 1 A No. Q Doctor, if I am walking, I am walking, am I not, 3 sir7 4 A Yes. 5 Q If I am living, I am living, aren't I, sir? A Correct. 7 Q If I am thinking, I am thinking, aren't I, sir? a A IF you say you're thinking, yes. 9 No. .If I am thinking, I am thinking, aren't I, 10 sir? 11 A There's no objective evidence. 12 D Doctor, I didn't say anything about any objective 13 evidence , did I, sir? 14 A No, sir. i 15 Q Did you understand I 'm not talking about abjective 15 evidence , you knoui,I*m not, don't you, sir? 17 A Right. 10 Q I 'm Just saying that if a fact exists, it exists, 19 doesn *t it, sir? 0 A Yes. 21 Pain is a fact that exists in many circumstances, 22 doesn't it, sir? 23 A Yes. 4 Q If pain exists, it exists, doesn't it, sir? S3 1 A It might exist. Exist is reality, sir. 2 Q That's what I'm talking about, sir. I 'm talking 3 about real pain. Real pain does exist, doesn't it, sir? 4 A Real pain can exist; 5 Real pain does exist in this uiorld, doesn't it, .6 sir? 7 A Yes, real pain. 0 Q People really have pain, don't they, sir? 3 A Yes, they really have pain. 10 0 IF one is having real pain, he's having real pain, 11 isn't he, sir? 12 A Yes, sir. 13 Q Now, Doctor, the pain Mr. Farley was having in the 14 case oF the Peyronies Disease was rBal, was it not, sir? 15 A I believe so. IB Q And you could substantiate thB Fact that h e 's 17 having pain because you could see objective signs that h e 's IB having pain, couldn't you, sir? Objective signs oF a 19 condition that you know could well cause pain; isn't that 20 right, sir? 21 A Yes. 2 Q PeyroniesDisease? 3 A Yes, sir. 4 Q So, therefore, when he says he has pain in the --------:----------------------------------------------- 54--- t 1 instance of Peyronies Disease, you can believe him because a there are abjective things that you can build upon to 3 support a conclusion that he is haying paint correct, sir? 4 Is that correct, sir? 5 A That's correct. 6 Q Now one can have pain in his arms and shoulders 7 without any objective evidence, however, of that pain, can a he not, sir? 3 A Yes, sir. 10 Q Yes. Now, Nr. Farley certainly could have pain in 11 his arms and shoulders without any objective evidence of it, ie can he not, sir? 13 A He could, sir. 14 Yes, But he's still having that pain,isn't he, 15 sir, even though there*s noobjective evidBncB ofit, h a 's 16 having the pain, isn't he, air? 17 A In the case of Nr. FarlBy, I didn't believe so, 18 sir. 19 Q Doctor, I didn't ask you what you believed at this 50 point in time, did I, sir? I asked you if Nr, FarlBy is SI having pain in his arms and shoulders, he's really having 52 pain in his arms and shoulders, isn't he, sir? I didn't ask 23 you whether or not you believed it. I said if the fact is 24 that h e 's having pain in his arms and shoulders, he is --------:--------------------------------------------- -- 55--- 1 having pain in his arms and shoulders, if that's a Fact, e isn't he, sir? 3 ft No, sir. 4 Q Doctor, if the Fact exists, it is a Fact, isn't 5 it, sir? 6 ft If us assume that he really has pain, he has pain. 7 Yes, that's what I'm asking you, Doctor, if the B Fact exists. S A If ujq assume that he has pain, and it's real, then 10 he has pain. 11 Q In the case of the arms and shoulders, he can ie really have pain there without any objective evidence, can't 13 he, sir? 14 ft We said that, yes, sir. 15 All right, sir. So this report hare shows that he 16 was having -- that he said he had pain in his shoulder and 17 anterior chest * correct, sir? IB A Which exhibit are you referring to? 13 Q Exhibit 1753, the black one. The last sentence, SO do you see that, sir, you wanted a stomach X-ray, an EKB 1 because of pain in his shoulder and anterior chBst? 2 A Yes. 23 Q Now he was complaining of pain in his shoulders, 24 wasn't he, sir, according to this report? 5& 1 A Yea. 2 Q Doctor, if he was having pain in his shoulders in 3 1965, it was real pain that ha was having, wasn't it, sir? 4 A I don't know. S Q Wall, now, Doctor, did you hear my question? I 6 said if he was having pain in 1965, he was having pain, 7 wasn't hs, sir? 8 A IF it was real,yes. 9 Q If he washaving it, it was real, wasn't it, sir? 10 A N o . 11 Q If he was having pain, it was real pain he was 15 having? 13 A He was complaining of pain. 14 Q That isn't what I asked you. I asked you if ha IS was having real pain, he was having real pain, wasn't hs, 16 sir? 17 A I would have to say no, because this is a record IB Df complaints. 19 Q Doctor, I 'm not asking you* whether or not this 20 proves that he was really having pain. All I 'm doing, Mr. 21 Farley is certainly capable of having pain in his shoulders 22 in 1955, wasn't he, sir? 23 A Yes. 24 If he was having it, he was having it, wasn't ha, 57 1 sir? s A Not necessarily. He uias complaining of it. 3 Doctor, 1 didn't ask you about complaining of it. 4 Did you understand what you said, sir? S A Yes, sir. B Q If he was having pain, he uias having pain, wasn't 7 ha, sir? 0 A I said no, sir, B I know you said that, sir. 10 A Yb s , sir. 11 Q You understand that the question, the way I IS phrased it, and the way I stated it, did not include that he 13 believed it, did not include that he was complaining of it, 14 did not include that you believed it. It was a simple 15 statement, sir, or question if ths fact exists, the fact 16 exists. 17 A Are you referring to this record, air? 19 D Doctor, could you listen to my question, sir? 19 A This is an exhibit that you're giving to m e . eo Doctor, would you listen to my question. ei A I will, eir, 2 If a fact exists, it exists, doesn't it, sir? 3 A If it is a fact, it exists. 4 0 Thank you, Doctor. And if he had pain, he was 58 X having pain, wasn't he, sir? 2 A If he had pain. 3 Yes, that's what 1 said. 4 A If he had pain. 5 Is that right, sir? 6 A Yes. If he had real pain, it exists. 7 Q Thank you, Doctor. B THE COURT: hr. Carr, is this a good point to 3 break for lunch? 10 HR. CARR: Yea, it is. 11 THE COURT: Okay. Uia'll resume -- we'll break for IS lunch at this time, and w e 'll resume testimony at 1:15. I 13 would remind you as to any other breaks that we taka, you're 14 not to discuss this matter among yourselves, with anyone 15 outside of the Jury panBl, you're not as of yat to Form.any 16 conclusions or opinions about the matters on trial. Court 17 is in recess for lunch. IB 13 CLunch recess.} SO 21 Q CBy Mr. Carr} Doctor, you have 1764 in front of ES you now, the one entitled ''History and Physical S3 Examination." Name is Charles Farley in the left-hand E4 corner therB. 53 1 A I do. a Q It states, does it not, sir, that he has frequent 3 headachBS and his joints are generally stiff, pain in hia 4 shoulders, no other complaints? The middle of the page, 5 H .E .E.N.T., colon. 6 A Yes. It indicates that he has frequent headaches, 7 wears glasses and no other complaints. B Q riusculoskeletal, his joints are stiff, pain in his a shoulders. io A Yes. il And, Doctor -- 12 A Excuse me. Is there a date on this, sir? 13 Q If you look where the tab is, if you want a date 14 For it. All I can tell you is that it's two pages following 15 a document that's dated 1973 is the best I can tell you, 16 Doctor. Anything else you'd like to know? 17 A No. I have one other question. Ulho did this and IB uiherB was this dona, sir? 19 Doctor, all I know is these are medical records 20 that were given to me by attorneys for Monsanto. I 'm giving 21 you what I 'vs got, sir. 22 23 CPlaintiff's Exhibit 1766 was marked for 24 identification by the court reporter.! 60 1 2 Q CBg Mr. Carr) Doctor, 1 hand you what's been 3 marked Plaintiff* Exhibit 1766. 4 5 CPlaintiff's Exhibits 1767 and 1768 were marked B for identification by the court reporter.!) 7 8 HR. CARR: I'd like to pass these exhibits to the 3 jury as well, your Honor. 10 THE COURT: Any objections to these exhibits? 11 flR. HE INEMAN: Yes, your Honor. Well, first of IS all, they haven't been offered. 13 MR. CARR: The exhibit, I thought, was already in 14 evidence from which these came. Plaintiff's Exhibit 1765. 15 I 'll confirm that with the witness. 16 THE COURT: They were. 1765 has been admitted. 17 MR. HEINEMAN: Do you know which is which? IB MR. CARR: 1766 is the first one I gave you. It's 13 dated October 18th, It's from the Mount Sinai Medical SO Center. 1767 is the one with the 076 in the right-hand SI corner. 1766 is the one that's captioned Environmental ss Sciences Laboratory, Mount Sinai School of Medicine. 23 CBy Mr. Carr) Doctor, what I would like you to 24 do, first of all, is to look at the tabs that are on the 61 1 Exhibit 1765 that are tabbed 1, 2, and 6, and aee if these a exhibits that are marked 1766, 1767, and 1768 are not the 3 same as the exhibits that'appear in that exhibit. It would 4 be the tab marked 6, Doctor. 5 ft Yes, they appear tD be from this record, sir. 6 And that's From Plaintiff's Group Exhibit 17657 7 A I believe so, sir, yes. B Q Now, Doctor, there has been previously S considerable testimony relating to the study performed by a 10 r. Sslikoff and Moses from the Mount Sinai School of 11 Medicine. Of course, you are aware that thslr study took 12 place in the spring if 1979 and yours took place in the 13 summer of 1379. Do you recall that, sir? 14 A Yes, I believe I do, sir. 15 And the Exhibit 1766 is a, the first page of a two 16 page letter, signed by Doctors Selikoff and Moses, is it 17 not, sir? IB A Yes, it is, sir. 19 Doctor, Plaintiff's Exhibit 1756 states that the 20 physical examination revealed, in the second paragraph, 21 decreased acuity in the left ear, atrophy of the left biceps 22 and triceps with sensory changes in the arm; correct, sir? 23 A That's what it reads here, sir. 24 Q And, Doctor, in the next exhibit, 1767, is the 52 1 statement by the man relative to his particular problems in e ths musculoskeletal and neurological areas, is it not, sir? 3 ft Yes, it does cover those areas, sir, 4 And, Doctor, in the musculoskeletal line it says, 5 does it not, that he has joint pain which he First noticed 6 in *49, and that it's currently active and that it started 7 while working.with 2,4,5-T? Do you see that, sir? B A Yes, I see it. 9 Now that is ths same statement that he gave to 10 you, to your group in the summer of 1979, is it not, sir, 11 with regard to his Joint pain? Dn page 17 of Exhibit 1733. 12 A For Joint pain, yes, sir. 1 3 Q And he also related in the Dr. SelikoFF/Moses, 14 Mount Sinai Study, that he had back pain that started in 15 *49, that he still has it, he has neck pain that started in 16 1949, and that he still has it, and that he*s got bone or 17 muscle aches a lot, especially proximal arms. That would be IB ths part of ths arms closer to the shoulders. 19 ft It would be the Forearms, Ibelieve, sir. 20 Q The Forearm. I thought that would be distal. 21 ft Distal. 22 Q Proximal would be the part closest to the 23 shoulder, wouldn't it be? 24 A Could be. S3 1 Q Wall, isn't that what his meant, sir? 2 6 1 believe so, yes. 3 0 All right. In the neurological -- he also sage f 4 that these problems started in '49, and they're currently 5 activB; correct, sir? Is that corrsct, sir? 6 A There is a check off method, which, I believe, one 7 could interpret to mean that, sir. S Q Well, how else could you interpret it? 9 A Wall, I said one could interpret it to mean that. 10 Q I know that, Doctor. But that leaves a question 11 of doubt. 12 A No, it doesn't. 13 Q There is no doubt then that's the way this i3 to 14 be interpretted, Doctor. 15 A If I interpretted that properly, that's what it 16 means then, sir, yee. 17 Thank you, Doctor. Doctor, also in the 16 neurological area he describes that h e 's had fatigue, 19 weakness, nervousness since 1955, and it started while 20 working with 2,4,5-T; is that correct, sir? 21 A Yes, I could interpret it to mean that. 22 Q Can you interpret it in any other way, Doctor? 23 A No, sir. 24 Thank you. Doctor,insomnia, he says he had that 64 1 in *73, currently active, and he says no, that he wasn't 2 working with 2,4,5-T at the time that started; correct, sir? 3 A It only Indicates that it started in 1973, air. 4 Q It's also currently active, doesn't it indicate 5 that, sir? 6 A Yes, sir. 7 Q And that it did not start while working with B 2,4,5-T; isn't that correct, sir? 9 A That would he an interpretation, sir. 10 Q Isn't that the way you would interpret that -- 11 isn't that the way you do interpret this, Dr. Suskind? 12 A Well, if indeed he wasn't working at that time 13 with 2,4,5-T, and I have to assume that ha wasn't. 14 Q Doctor, I'm not asking you to assume that any of 15 this is the truth, I 'm simply asking you to interpret this 16 record as you see it. It may be a bold-faced lie. It may 17 be imaginary. It may be made up. I want to ask you, 18 Doctor, don't you interpret this record to show that it 19 started while he was not working with 2,4,5-T? 20 A I have to assume, sir, that he wasn't working with 21 it in 1973. 22 Q Doctor, do you understand the question that I 'm 23 asking you? 24 A Yes, I do, sir. 65 1 ITm not asking you to assume that hs wasn't a working with ,4,5-1 in '73 or *7, or *51. I'm simply 3 asking you to interpret this record, sir. You interpret 4 this record that he means to say, does he not, sir, that 5 this started, and at the time it started he was not working 6 with H ,4,5-T7 7 A It doesn't say that in this, sir. Are you talking 0 about insomnia? 3 Isn't there an 'N ' in the column of while working 10 with 2,4,5-T? 'Y ` equals yes. Do you see that in there, 11 sir? 10 A Yes, sir. Okay. 13 Doesn't that 'N ' stand For no? 14 A It doss in the occupationally related column. But 15 there's no 'N* in the while working with column, sir. 16 Q Doctor, that 'N ' is in ths while working with 17 column. ia A I thought that it referred to the occupationally 13 related. There's no 'N* in that column that you and I ere SO looking at. It says 'Y ' is yes, but there's nothing 1 underneath that. Than in the next column it's as occupationally related. Thera's an 'N ', which means no, and 3 'Y`, which means yes. 4 Doctor, you do know that the investigator askad 56 1 the questions of the person and Filled in the *Y* or the 2 'N ', do you not, sir? 3 A I would assume that he would do that, sir. 4 Q Doctor, you've seen these records before today, S have you not, sir? 6 ft bihat, sir? 7 You've seen these records -- 8 A I have not, sir. 9 Q You have not? 10 ft I have not seen these records bsFore you've handed 11 them to me. ia Q You've never looked at the flosBS/Selikoff records, 13 Dr. Suskind? ^ 14 ft 1 have read her paper, but I haven't seen the 15 records, sir. 16 Q Doctor, would you like to look at enough of that 17 record there to be satisfied that tha 'N ' stands for no, so 10 we can move an? 19 A I am satisfied in that other column *N' means no. 20 I would assume that in the .4,5-1 column that also means ai n o . ss Q And he is stating thereby that his insomnia, when 3 the insomnia started he wasn't working with 2,4,5-Ti isn't 24 that correct, sir? 67 1 9 Yes. a Now, Doctor, thenext exhibit, 1768,entitled a Environmental Sciences Laboratory, you sea the question 4 there is asked have you ever had any of the following 5 problems or symptoms? Do you see that, sir? 6 A I sea it, sir. 7 And ha states that ha hashad dizziness, that 0 started in the '50's, and that he still has it, does he not, 3 sir? 10 A Yes, I can interpret it to mean that. 11 Ha has irritability, occasional irritability, just IS like occasionally on dizziness, which started in the '50's, 13 and he still has it; correct, sir? 14 A Correct, sir. 15 Q He has trouble sleeping, which started in the 16 *60's, and he still has it; correct, sir? 17 A That's what the record reads, and it's a check off IB list, yes, sir. 19 Q Is the answer to my question that this record doss SO show that he's said that he has the trouble sleeping which 21 started in the '6 0 's r and he still has it? 25 A He says he has it, sir, yes, sir. 23 Q And an depression he says that he had it in the 54 past, that it started in the '50*3, and that he still has 66 1 it; correct, sir? 2 A That's what ths column reads, sir. 3 Q Numbness and tingling, it started in ths '60's, 4 and he still has it; correct, sir? 5 A That's uihat the check oFF record reads, sir, yes. 6 Q Trouble breathing, he had it in the '50's, but he 7 has not had it recently; correct, sir, according to this B check oFF of symptoms? 9 A Yes. 10 Q Chest pain he had in ths 'SO's, it started in the 11 *B0'e, and h B still has it; correct, sir? 12 A That's what this record reads, sir. 13 Q Pain in the calves or legs, startedin the *50*s 14 and he still has it; correct, sir? 15 ft That's what this record reads, IB Fatigue and tiredness started in the '50's and he 17 still has it; correct, sir? IB ft That's what this checkoFFrecord reads, sir. 19 Q And hB's gotindigestion that started in the 20 '50's, and he still has it; correct, 'sir? 1 A That's what the record reads, sir, 22 Abdominal pain started in the '50'sand he still 3 has it; is that correct, sir, according to this record? 24 A That's what the record reads, sir. 63 1 Q He has constipation, but he doesn't sag when it 2 started, but he still has it; correct, air? 3 A That's what the record reads, sir. H Muscle cramps, joint pain, back or neck pain, all 5 of which started in the '50's, and he still has it; correct, 6 'sir? 7 A That's what this record reads. a Trouble with s b x life that started in the *70's, 3 and he still has it. 10 A That's what the record reads, sir. 11 Q And skin problem that started in the '50's; is is that correct, sir? 13 A Yes. But he doesn't have it at the moment. 14 Doctor, is there anything in these records that 15 you have seen now, of all the medical records that we have IS up to mid 1373, that would support a conclusion that the 17 problems of Mr. Farley always cleared with time? ia A Sorry, I didn't hear that, sir. Always did what? 13 MR. CARR: Would you rsad the question to the 20 witness? 21 22 CQuestion read.) 53 24 THE WITNESS: Yes. 70 1 Q (By Hr. Carr) And what in the record supports the 2 conclusion to be reached in 1979, sir, if 1 didn't specify 3 it, that his problems, his myopathy, neuropathy, depression, 4 of the central nervous system, and these other problems, 5 always cleared with time? 6 fi First of all, I don't know haw this study was 7 conducted. I have no idea, fill I have here is a -- B Q Doctor, I'm not asking you whether or not -- 9 A All I have hare is a check off -- 10 Q Doctor, would you let me finish so we won't spend 11 an entire day rambling on what you don't have or do have. 12 A Yes, sir. 13 What 1 want to know, sir, and my question is based 14 upon these records, whether they're the best records on 15 earth, or the worst records on earth, they all contain lies, 16 or you don't know what to believe or what not to believe, is 17 there anything in this record that you have in front of you, IB sir, to support the conclusion that Farley's problems have 19 always cleared with time? 20 A Yes. 21 HR. HEINEMAN: Excuse me, Doctor. 22 Q CBy Mr. Carr) Andwhat is that, sir? 23 MR. HEINEMAN: Your Honor, could we approach the 24 bench? 71 1 THE COURT: Yes, you may. 5 3 CThe following proceedings wore had at the bench , 4 out oF the hearing of the Jury:) 5 6 HR. HEINEMAN: Your Honor, I would clearly object 7 to any reference to Plaintiff's Exhibit 1765 in its entirety 8 because the witness clearly hasn't had time to review that 8 entire thing. H e 's been directed to certain specific pages 10 of it. 11 THE COURT: Wait a second, Wait a second. He ie reviewed at least half oF it, possibly more of it, this 13 morning when it was given to him. He has been directed to 14 certain parts of it. It was first brought up early this 15 morning. I think he has had the opportunity to review it, IB and in front of the Court, I think also including while we 17 were up here he reviewed parts of it. So I think he's 18 reviewed at least a good portion of it in my presence while 19 w e 've been up here and while ths question was posed to him 50 concerning thB records. SI MR. HE INEMAN: UJhat da you base that on? se THE COURT: Seeing him d D it. Watching him d D it. S3 H e 's Just a short distance From me. I saw him do it. 24 MR. HEINEMAN: So you've seen him review this 33L 1 entire record? s THE COURT: I've seen him raviaui a good portion of 3 it, if not all of it. Do you have any further objection? 4 MR, HEINEMAN: My objection stands, your Honor, 5 THE COURT: ThB objection is overruled. 6 7 CThe following proceedings were had in the B presence and hearing of the jury:3 9 10 MR. CARR: Would you read the previous question 11 and answer. 12 13 CQuestion and answer read.) 14 15 Q CBy Mr. Carr) And what is there in the records, 15 Doctor, that supports the conclusion that these problems of 17 his havB always cleared with time? IB A My view of ths judgment, or my Judgment, my 19 Judgment -- 20 Doctor, you understand that I 'm not asking you 21 about your Judgment now. 22 A -- of thesB records -- 23 What I'm asking is to point out for me in these 24 records what supports your conclusion, what supports your 13 1 judgment. You've given us your Judgment, Dr. Suskind, I now 2 want to find out From you what is there in these records 3 that supports that Judgment, 4 A If you take these records at face value -- 5 Yes, that's what I'm asking you to do, Doctor. 6 A If you take them at face value. 7 Q Yes. B A Then at this point in time hr. Farley's pain and 3 other things are not cleared. 10 Thank you, Doctor. 11 A But, I'm not willing to do that. 12 Doctor,I'm asking you, sir, whether or notthere r 1 3 is anything in these records that supports a conclusion that 14 his problems have always cleared with time. Now you said 1 5 that there is something in these records that supports that 16 conclusion. I would lika to know whether or not -- what 1 7 there is in these records that supports that conclusion, IB sir. 13 NR. HEINENAN: Objection, your Honor, asked and HO answered. 21 THE COURT: Overruled. 22 THE WITNESS: It was my Judgment of these records, 23 if you take these records at face value -- 24 Q CBy Nr. Carr3 Dr. Suskind, you understand what 74 1 I 'm asking. Please, sir, so that we can move on. I want s you to point out for me what in these records supports the 3 conclusion that his problems have always cleared with time, 4 if it exists in these records. If there's nothing in these 5 records to support that conclusion, sir, you can say that 6 too. But if you believe there is something in these records 7 to support that conclusion, I want you to tBll me where it S is. I want you to identify it, sir. 9 A ThB o n l y way I ca n a n s w e r -- 10 M R . HEINEMAN: Sams objection, your Honor. 11 THE COURT: Same ruling. 15 THE WITNESS: -- if you takB these records at face 13 value, if you take these records at face value, thBn his 14 pains have not cleared. 15 CBy Mr. Carr5 Doctor, is what you're saying is IB that there is nothing in these records to support a 17 conclusion that his problems have always cleared with time? IB Is that what you're saying, sir? 19 A I have answered the question, sir, that's the SO best -- SI MR, CARR: Your Honor, would you direct the SB witness tc answer the question as I 'v b posBd it. i S3 THE COURT: Doctor, please answer the last E4 question that was asked of you. 75 1 THE WITNESS: As I indicated, if you .takB these at 2 face value -- 3 MR. CARR: Your Honor, I submit the witness is 4 repeating the answer before to the previous question. H e 's 5 not answered the question that I've asked of him. 6 THE COURT: Doctor, please answer the question 7 that was askBd of you, the last question, not the question a before it. Would you pleasB read back the last question 9 that was asked? 10 11 COuestion read.) ie 13 NR. HEINENAN: Excuse me, your Honor, may Counsel 14 approach the bench? 15 THE COURT: Yes, you may. 16 17 CThe fallowing proceedings were had at the bench 18 out of the hearing of the Jury:) 19 20 NR. HEINENAN: I object to the question, I object 21 to the Court's direction to thB witness to-answer the 22 question at Counsel's request, because it's nothing more 23 than a rephrasing of the question which he Just answered. 24 He has given the answer. He has now been asked and answered 76 1 thrBB times, and I object to it on that basis.. s THE COURT: It is a diFFersnt question. He has 3 not answered that last question. He has rsFused to because 4 he's repeated the question. It's an example oF the type oF 5 behavior that this witness has engaged in, and renders the 6 Court incapable oF making a time limit oF the cross 7 examination. It is a reFusal to answer what is obviously a 8 diFFersnt question. It is a logical Follow-up to the 3 question that was asked previously. Your objection is 10 overruled. 11 IS CThe Following proceedings were had in the 13 presence and hearing of the Jury:! 14 15 CBy fir. Carr! Now would you answer the question, 16 pleasB, sir. 17 A Would you read the question back please? IB 19 CQuestion read.) SO SI THE WITNESS: I'm Forced to say no, sir, therB is SB nothing in these records. S3 CBy Mr. Carr? All right. Sir, iF you're saying E4 no to that question, then, sir, point out For me what there 77 1 is in the record that supports the conclusion that Mr. a Farley's problems have always cleared uiith time. 3 A That's the same question, sir, I believe. Isn't 4 it? 5 You answered the question I gave you, sir. You 6 said no. OF course, what I asked you was is what you're 7 saying, Or. Suskind, is that there is nothing in these B records to support the conclusion that all thB problems have 9 cleared with time, and your answer to that was no. I asked 10 if you meant to say that there is nothing in the records to 11 support that conclusion that the problems have always 12 cleared with time. Then I understand what you'rB saying. 13 A Yes. IF you take these records at Face value, 14 t h B r B 's n o t h i n g i n t h B record. 15 Doctor -- your Honor -- 16 THE WITNESS: I 'm answering it yes, there's 17 nothing in this record. IB CBy Mr. Carr 3 To support the conclusion that his 13 problems have always cleared with time; is that correct, 20 sir? 21 A Yes. 22 Doctor, is therB anything in this record to 23 support an opinion that those problems that he had in 1379 24 and that hB's had since 1953 when you saw him in 1353, 7B 1 anything t D support that opinion that his problems are s imaginary? 3 A No. 4 I 'm sorry? 5 A There's nothing in this record, sir, as you have 5 given it to me. 7 Q To support the conclusion that his problems are e imaginary; is that correct, sir? 9 A Correct, sir. Correct. xo All right. Now, Doctor, with regard to Willard il Forbes, did his problems clear with time? 12 A I would have to look at Ulillard Forbes' records. 13 I don't havB these things in my memory, sir. 14 Would you give the witness Exhibit 1735, which is 15 your 1979 examination. 16 A Yes, I believe there is, in this rcord, in the 17 1979 record. 16 And what in the record supports the conclusion 19 that his problems have always cleared with tirriB, Doctor? 20 A Well, For one thing, in the Physician's history -- 21 What page is that, Doctor? 22 A On 23 in the skeletal examination there is no 23 indication that there was any complaint of pain. There was ' 24 no indication of any complaint of pain. 73 1 Doctor, on page 16 the man tells you that he has a muscle weakness, parathesia, doss he not, sir? 3 8 He says his arms go to sleep when he reads. 4 That's the parathesia, sir. 5 Q Doesn't he check the column that he currently has 6 parathesia? 7 8 Yes. But there's also an indication as to when it B happens. He Falls -- his arms go to sleep when he reads. 3 Doctor, is there also an Indication that he has 10 musclB weakness in his limbs? 11 A He indicates that since *74. But with respect to 12 pain, which is what you're asking me about -- 13 No, Doctor. That wasn't my question, Doctor. 14 A I thought it was, sir. I thought you were talking 15 about pain. 16 Q No. Don't you recall on Willard Forbes we did not 17 put pain in there, we put a check in there and called it 18 weakness? I think you wrote it in yourselF. Maybe I wrote 13 it in. Do you have Exhibit 1734, sir? He wasn't 20 complaining about pain. He was complaining about weakness 21 and parathesia. 22 A Yes. We have in 1973, you had me check off pain, 23 weakness. This is how it reads, sir -- 24 Dr. Suskind, don't you remember that I told you BO 1 u s 're going to put it there so ue won't make a separate 5 column For weakness, and we're going to writs the word 3 'weakness' in there so ue know what it means? 4 A I didn't know it was a substitute For pain, sir. 5 You don't recall me telling you that, sir? 6 A No, sir, I do not. 7 Q But I must havB neglected to tell you that, sir. B That checkmark in Exhibit 1734 means as it is written in 9 there, weakness, sir. My question to you, Doctor, is there 10 anything in this record, your records to support the 11 conclusion that his problems have always cleared with time? 15 ft I do believe it has, because this is diFFerent 13 From 'S3, sir. IF you compare what hB had in '53 tD what he 14 had new, what he had in *73, he had pain in '53, complained 15 about some pain. In '79 therB was no evidence oF it, sir. 16 Q So the pain cleared up, Doctor. UJhat other 17 problems did he complain about in 1553, sir? IB ft I don't believe he complained about weakness. 15 Doctor, hB toldyou, did he not, sir, that hB had 50 had a stroke in 1355? 51 ft Yb s , sir. 55 Doctor, there was a stroke at age 33 years oF age, 53 wasn't it, sir, thereabouts? I 'm sorry, it would have been ` 54 41 years oF age. Is that correct, sir? 81 1 MR. HEINEMANs Excuse me, which exhibit are you 2 referring to? 3 MR. CARR: The 1953 exhibit that the witness is 4 referring to. 5 MR. HEINEMAN: 1701? 6 MR. CARR: 1701. 7 MR. HEINEMAN: Thank you. 8 THE WITNESS: He indicated that he had a stroke, 8 according to thB record, sir, in 1352. The stroke is put in 10 quotation marks, and I don't believe ha was ever 11 hospitalized For it. That's why it was put in quotation 12 marks at that time. 13 CBy Mr. Carr3 Doctor -- 14 A He did complain at that time, he complained of 15 mild pain which he did not complain about in 1979, sir. 16 Doctor, he had an absent ankle jerk -- well, maybe 17 you don't know that, do you, sir? Would you mark these 10 whatever the next number is. 19 20 CPlaintiff's Exhibit 1769 was marked for 51 identification by the court reporter.) 52 23 Q CBy Mr. Carr) Doctor, I hand you what's been 24 markBd Plaintiff's Exhibit 1769 and ask you to -- represent B2 1 to you that these are the complete medical records given to ^. ' a us by Monsanto relative to billiard Forbes as they existed up 3 to mid 1973, and ask you to take a look -- First of all, 4 your Honor, I'd likB to offer these exhibits into evidence, 5 1769. E THE COURT: Any objection? 7 MR. HEINEMAN: Yes, your Honor, if Counsel may 0 approach the bench. 9 THE COURT: Sure. 10 11 (The following proceedings were had at the bench IS out of the hearing of the Jury:) 13 14 MR. HEINEMAN: Your Honor, basBd upon the numbers 15 of documents that I have had provided to me, the numbers 16 that have been provided to me as to what's been provided to 17 Mr. Carr, I don't believe that thBse numbers ars complete, 10 that this isn't a complete set of what has been provided to 19 M r . Carr. 20 MR. CARR: They are not a complete set. You've 21 provided me with medical up to datB. My question goes to 22 '79, Counsel. 23 MR. HEINEMAN: All right. 24 THE COURT: I think you said thB middle of 1979. 83 1 MR. HEINEMAN: Well, I thought that Mr./ Carr's 2 statsment uias this was a complete copy of all the records 3 that had been provided to him. 4 MR. CARR: No. 5 THE COURT: Up to mid 1379 uias thB qualification 6 of that. 7 MR. HEINEMAN: UIb II, I can't check on that because B I 'v b only got the complete set of numbers. 9 THE COURT: I understand. It was mid 1373. 10 MR. HEINEMAN: I 'm going to object to these 11 records on the basis that no foundation has been laid 12 through this witness or through any other witness to their 13 admission into evidence. TherB's been no testimony to 14 establish such a foundation. 15 MR. CARR: U)e say the 3ame thing we said before, 16 your Honor. 17 THE COURT: They're admitted over the objection. IB 19 CThe following proceedings .were had in the 20 presence and hearing of the jury:) 21 22 CBy Mr. Carr} Doctor, if you would, I'd like -- 23 you certainly may look through the entire pile if you want 24 and when you want, but I'd like to direct your attention to N. B4 1 the tabs that I have put on pages In that exhibit. The tab s numbered 1 shows, does it not, that the man had an absent 3 ankle Jerk on the left in examination in April of *79? Do 4 you see it there, Doctor, or could I help you? 5 A Yes, sir, 1 see it. 6 Ulell, could you answer my question so we can move 7 on? B MR. HEINENAN: Objection, your Honor, he Just said 9 he could take his time to look at the exhibit. 10 THE WITNESS: I 'm not sure I heard the question, 11 sir. What is the question? I have it here, yes. 12 Q CBy Nr. Carr) I directed your attention to the 13 yellow tab that has the number 1 on it, sir. 14 NR. HEINENAN: Nay I interpose the same objection, 15 your Honor. 16 THE COURT: Objection is overruled. 17 THE WITNESS: I saw it. I havB number 1, sir. IB CBy Nr. Carr) It shows the man on a neurological 19 examination had an absent ankle reflex, doss it not, sir? 20 A So the record indicates, sir. 21 0 That's the record of the doctor that examined him 22 at the timB; correct, sir? 23 A I don't know. But that's thB record, sir. I have' 24 no idea who did it. 95 1 Doctor, my question is that is a record of the 2 doctor that examined him at the time, is it not, sir? 3 A 1 assume so, but I have no record that a doctor 4 did it. It isn't signed, sir. 5 Doctor, you do know that thBy employed doctors in 5 thB Moses/Salikoff Study to perform these examinations, 7 don't you, sir? a A No, sir, I don't know how it was conducted, sir. s I have no idea. 10 Well, you haven't read thB report of 11 Moses/Selikoff that was published, Dr. Suskind? 12 A , I have, sir. 13 Q Do they not stats in that report that they had 14 doctors, neurologists, intsrnists, at cetera, a wide variety 15 of doctors examine these people? IB A I can't remember specifically whether t h B y said 17 that in that article, sir. I don't have it with me. 10 And you can't remember? 19 A No, sir, I cannot. 20 Would you assume, plBase, sir, that they did say 21 that? 22 MR. HEINEflAN: May I object to that, unless we can 23 look at it and s b q . 24 NR. CARR: If you want to take a look at it, V BE 1 Counsel, go ahead and take a look at It. But may I continue 2 my examination? 3 MR. HEINEMAN: May I see it? 4 THE COURT: Go ahead, Mr. Carr, 5 MR. CARR: Ydu h a v e your Exhibit 909, Ydu w a n t to E look a i t . SOB, Counsel, not 909. 7 CBy Mr. Carr) Would you like to look at it ae B well, sir, to refresh your memory that they had physicians, 9 examining physicians, sir? 10 A UJhat 1 read, air -- 11 Do you read that they used the word examining 12 physicians in there, Doctor? 13 A Yes. But -- 14 Thank you. 15 A But they have a section on neurology, and not all 16 the persons were examined by a neurologist. A subset was 17 examined by a neurologist. * IB I d o n ' t c a r e w h e t h e r i t w a s a s u b s e t , o r o n e o r 19 F i f t y . D i d t h e y n o t h a v e d o c t o r s t h a t madB t h e 20 e x a m i n a t i o n s , s i r , a l l k i n d s o f d o c t o r s mads th B 21 e x a m i n a t i o n s ? 22 A They did. 23 Yes. 24 A But whether or not a doctor did this, I don't 87 I 1 knoui. 5 Doctor, my question bias that this predicated upon, 3 as you knoui, these examinations mere conducted by doctors, 4 don't you, sir? You said I don't knoui that, I havsn't read 5 it. Now I've shown you where it does appear in your record. B A Yes. / 7 MR. HEINEMAN: Objection, sir. He didn't say he B hadn't read it. He said he didn't recognize it. 9 THE COURT: Objection sustained. He did say that. 10 CBy Mr. Carr5 The record shows that he had an 11 absent ankle jerk. IS A It did, sir. 13 Q Tab number 2 shows that he had a stroke in 1950; 14 isn't that correct, sir? IS A There's an indication that there is, thath e -- 16 Q Doctor, parathesia, weakness as you found in your 17 1950 1979 report, or at least he reported to you it IB existed in 1379 -- 13 A Right. SO -- does or can come with a stroke, can it not, SI sir? 22 A It can, indeed. 23 Q Yes. And, Doctor, your examination in 1979, your 24 neurological examination, what did it reveal with relation BB 1 to the ankle reflexes? If you look on page 54, sir. s A It says parathesia on the right side foot. That's a what it says. 4 And that, sir, is in thB history portion. I want 5 you to look at the physical examination portion, E A There uias nothing in the examination portion 7 except a drawing which is usually used to Indicate reflexes B when they're abnormal. 3 What reflexes did your examiner indicate are 10 normal or are abnormal? 11 A None were shown at the time, sir. IS Q What question, did he check whether or not they 13 had any abnormal findings? 14 A In this record there was none checked, sir. 15 So you don't know from this record whether he had 16 an absent ankle reflex upon your examination as he did in 17 April of '79 or not; is that right, sir? 18 A From this I couldn't tell, sir. 19 But we do havB somebody's record that he had an SO absent reflex; correct, sir? 51 A An earlier examination, sir. 55 And page 54 also shows he had a right sided stroke 53 by history. 54 A Yes, sir. X BS 1 Q And I can't make out what Foot that w\ould be. 2 A That's a, I bsliave it reads on the ball of the 3 Foot, on ths right side, there is a parathBSia. So he haa 4 tingling sensation in the bone oF the right Foot. 5 Q Doctor, it would indicate that he still haa 6 problems in 1979, has ha not, sir? 7 A Related to the stroke, sir, yes. 0 Q And the stroke, it could be related to dioxin 0 exposure, could it not, sir? 10 A It could not, sir. 11 Why not, Doctor? 12 A Because there's no evidence that I know oF that 13 shows stroke is related to dioxin. 14 Well, Doctor, you know that there's a wide variety 15 oF central nervous system disorders that can coma with 16 dioxin exposure. You know that, don't you, sir? 17 A No, I do not, sir. IB Doctor, haven't you related those yoursBlF, sir? 19 Eye, respiratory, headache, malaise.. Headache certainly is 20 in the brain, isn't it, sir? 21 A It may or mBy not be. It may be vascular. 22 Q Is there a headache in the brain, Doctor? 23 A It may not be in the brain, sir. It may be 24 pressure. 90 1 Q Uascular? 2 A Uascular pressure. From the outside, not inside. 3 Q So the vascular pressure from dioxin exposure can 4 causa headaches; is that uihat you're saying? 5 A No, sir. There was no vascular -- to my knowledge 5 there's no indication of a neurovascular effect from dioxin. 7 Well, if it's not neural, what is a headache? Q A It could be behavioral. 9 So dioxin could cause a behavior headache? 10 A It could be worry. It could be a wide variety of 11 things. In this case, in the acute exposure, we do have 12 headaches. In the acute exposure. That was acute exposure 13 to triohlorophenol, as well as what else was in it in 1949. 14 You say here it was health effects of TCDD, don't 15 you, sir? Yd u don't say anything about the -- 16 A Well, I say following -- 17 Excuse mB, Doctor. My question is you say here IB "Human Health Effects TCDD", don't you, sir? 19 A That's only part of the title, sir. 20 The title is "Table 1 Human Health Effscts-TCDD;" 21 isn't that correct, sir? 22 A That's part of the title, sir. Shall I read the 23 rest of it? 24 Doctor, isn't your title this, "Table 1 Human 91 1 2 3 4 5 E 7 8 9 10 11 12 13 14 15 IB 17 18 19 20 21 22 23 24'' Health EFFects-TCDD?" A Yes, and acute following TCPP run-away reaction. So it's the TCPP run-away reaction uihich is responsible For the irritation, the headache and the malaise. And not the TCDD7 A It might be, but thB TCP -- the TCDD is not -- I don't believe, I don't beliBVB that it's responsible For the respiratory, skin, and eye irritation. I balieva that the trichlorophenol is. ' Doctor, why have you told the world, why have you put this undBr the category "Table 1 Human Health Effects-* TCDD," if you don't think TCDD caused these problems? A IF you take it in an isolated way, the uiay you're doing, out of context, that's so. If you read the article, sir, if you read the article, you will see clearly that I say in the article that the acute effects which have bBsn attributed to TCDD is due to the trichlorophenol in the run away reaction. Q Doctor, how do you know that? A LOb II, it was shown at Seveso as well. Doctor -- A It was shown in othBr run-away reactions. Q Doctor, didn't they have TCDD at Seveso? A Yes, they did. 92 1 Q Didn't they have TCDD in these other run-away s reactions? 3 A Yes, but they had trichlarophenalall overthe 4 place. 5 Sure, they did, Doctor. They had TCDD all over 5 the place, didn't they, sir? 7 6 In some instances, yes. B Doctor, what makes you say it was caused by the 9 TCP and not by the TCDD? They had bath in both cases, did 10 thBy not, sir? 11 A Yes. IS And you didn't say -- and you have -- strike that. 13 You did put this problem as connected with human health 14 efFacts oF TCDD, didn't you, sir? 15 A With an explanation in my paper, sir, which you 16 haven't alluded to. 17 And, Doctor, are you suggesting to this Jury now IB that the vascular problems that these people had that caused 19 these headaches were not caused in any way by the TCDD? SO MR. HEINEMAN: Objection, your Honor. May Counsel 21 approach the bench? SS THE COURT: Yes. S3 B4 S3 1 CThe following proceedings were had a\t the bench 2 out of the hearing of thB jury:) 3 4 MR. HEINEMAN: Mr. Carr is at it again. 5 THE COURT: Keep your voice down. 6 MR. HEINEMAN: The witness didn't say that the 7 headaches were caused by vascular problems. He gave B vascular problems as a cause of headaches. He didn't say 3 that these people had vascular problems that caused 10 headaches. It may be, but this witness didn't just say 11 that. I object to the question as misstating his testimony. 12 MR. CARR; I think it's clearly what the man said. 13 Uascular headaches caused by TCP now, not caused by TCDD, 14 but caused by TCP. At least that's what I understood him to 15 say. 16 THE COURT: Objection is overruled. 17 IB CThB fallowing proceedings were had in the IB presence and hearing of the jury:) 20 21 CEy Mr. Carr) Doctor, these headaches that people 22 have been having with all thesB run-away reactions in all 23 these exposures, are they headaches that in your judgment 24 were vascular headaches or neural headaches, sir? First of 94 1 all, were they vascular headaches In your Judgment, Doctor? a A 1 really can't tell you, sir. 3 ArB you saying thBy could be vascular? 4 A They could be vascular headaches, yes. 5 Q Doctor, are you saying in all these instances at 6 these various places where people have had headaches 7 associated with these exposures that you can say that they B were not caused by the TCDD? 9 A If they were in run-away reactions, Mr. Carr, it's 10 possible, very likely that the acute reactions, which 11 included headaches, some of them severe, was probably due to 15 the irritant reaction of trichlorophenol. 13 Q Doctor, my question to you is are you saying that 14 in no way could these headaches be caused by the TCDD? 15 A No, I 'm not saying that, sir. 16 Q All right. Now, if they were caused by TCDD, 17 Doctor, they were vascular headaches^ were they, sir, or can IB you say they were not vascular headaches? 19 A I really can't tell you that because we don't know 50 that. 51 It could be that they're vascular headaches? 55 A Could be, sura. S3 Q If TCDD could cause a vascular headache, sir, it 54 could also c b u s b a vascular stroke, could it not, sir? i 95 1 ft Not necessarily, n#o, sir. \ 2 Q Doctor, 1 agree not necessarily. My question Is 3 If TCDD can cause a vascular headache, It may also be able 4 to cause a stroke; isn't that correct? 5 ft The answer is no. 6 What? 7 ft No, sir. B Q Doctor, you said notnecessarily amoment ago, did 9 you not, sir? 10 ft I say no, sir. 11 Did you say not necessarily a moment ago, Doctor? 12 ft I did, indeed. 13 Yes. And by that you meant that it could, but 14 wouldn't necessarily do so; isn't that correct, sir? 15 ft No, there's no evidence, sir, to show that. 16 Doctor, is there evidence to show that it causes a 17 vascular headache? IB A No, there*s no evidence. 19 Doctor, you said thatit*s.certainly possible that 20 the TCDD can cause a vascular headache, did you not, sir? 21 ft It'5 possible. 22 Yes. And it has a vascular effect, vascular 23 meaning blood vessels; correct, sir? 24 A An organic vascular effect with atherosclerosis is 96 1 different than a vascular headache type of effect. 5 Doctor, I'm talking about a vascular headache that 3 TODD has an effect upon thB blood veesels, therefore it's 4 called vascular; isn't that correct, sir? 5 A I really don't knout. B Doctor, let me put it a different uiay. Oascular 7 and blood vessels, vascular means blood vessels, doesn't it, B sir? 3 A It does, indeed. 10 And a headache, a vascular headache is caused by 11 something affecting the blood vessels; isn't that correct, ie sir? 13 A It's usually caused by something that dilates. 14 Dilates, not constricts, dilates the blood vessels. I don't 15 know whether TCDD doss that. I have no idea. But 16 hBadachas, of course, by the increased -- increased blood 17 flow through the vessels outside of the brain, outside of IB thB brain with pressure. 19 Puts pressure on the brain? BO A And a stroke is usually the result of 21 atherosclerosis, which is a plugging of the vassals of the 22 brain. 23 Doctor, this man was 40 years of age, or right at 24 40 years of age, was hs not, sir? \ 97 1 A It was in *51. a The hosQs/SBlikoff report says 1350. He was 42 at 3 tha time you saw him in 1953. That mould put him 39, 4 wouldn't it, air? 5 A In 1953. Hs said ha had it in *51. It dossn't 6 matter, either 39 or 40, air, yas. 7 Q Doctor, how would a 39 or 40 year old man have a Q stroke? What would cause it, sir? 3 A One can have early atherosclerosis, sir. 10 Is there any indication in any medical record that 11 you saw that this man had Barly atherosclerosis? IS A I have no idea. If you want me to check on his 13 history, I*d be happy to do that. 14 Doctor, was there any indication in the records 15 which you have, the records that you took that this man had 16 any kind of atherosclerotic problem? 17 A Well, he had diabetes, sir, and diabetes makes 18 people prone to having vascular problems. 19 Q Doctor, when did he get the diabetes? 20 A Well, I don't know when this is datBd, but in thB 21 history pagB there's a history of diabetes. 22 liy question, Doctor, is whBn did he gat the S3 diabetes? 24 A I don't know. I have no idea. I don't see any 9B 1 date here, but the interviewer put down diabetes under the a stroke, sir, on page 15. 3 Doctor, I thought this uias the worker writing this 4 down and not the investigator. 5 A No, sir. This was the interviewer. This was an 6 administrated interview, sir. 7 The Mosss/Sslikoff one was, and yours was ae well? 0 ft 1 don't know whether the Moses/Selikoff was, but S ours was. 10 Q And your man did not put down when he had the 11 diabetes; is that what your investigator did, sir? 15 A Right. 13 So we have no idea From what your investigator put 14 in when thB man had the diabetes? 15 ft I don't know whether he had it in 1950 or before. 16 Q Ex c u s b me, Doctor. Do you understand my question 17 to be that we have no'idea when the man had diabetes? IB A From this record, I don't. 19 Is there any record in the medical records that BO I 've given you, Doctor, to suggest that he had diabetes and 21 if.so, when did he havB it? BB ft t I don't believB you've given me his complete S31 medical record. 24 I 've given you all the medical records that "N. 99 1 Monsanto gave ms up to mid 1 9 7 9 Doctor* 5 A I have not gone through this, and this Is the 3 first time I've seen it, and you tag material for me to `7 4 read, and I 've done it. 5 Q Yea*. 6 A But I have no idea whether or not there is any 1 7 indication to -- yes, I 'm sorry, there is. Oh, well, a whatever that page is under medications. There's an oral 9 diabetic medication. 10 Yes. When does it indicate that he started taking 11 that? 1 A It says '75, sir. 13 Q Yas. Thank you. Now '7G, that would be SO some 14 odd years after his stroke, wouldn't it, sir? 15 A Yes. IB Q It's extremely unlikely that he had a diabetic 17 caused stroke, would it not, sir? IB A No, sir, not at all. 13 Is that what you're saying, Doctor? SO A Yes, that's what I 'm saying because people can El have -- EE Q Doctor, hB had a stroke in 1350 and not start S3 taking the medicine, a stroke that could be caused by 4 diabetes, and that he wouldn't be diagnosed and treated for 100 1 diabetes until 1976, 26 years laterj is that uthat you're 2 saying, Doctor? 3 A Sir, I 'm not saying the stroke uias caused by the 4 diabetes, sir. 5 Is that uihat you're saying, sir? 6 A No, I 'm not saying that. 7 Doctor, let's pass to the next man, if you would, a sir. hr. Johnathan Hurley. Is thBre anything, sir, in his 3 1979 report by you that would support a conclusion that his 10 problems have always cleared with time? 11 A If I can have Nr. Hurley's record. 12 1737. I'm sorry. Would you givB him Exhibit 13 1737. 14 A Yb s , 15 And what is there, Doctor, in your 1979 record to IB support a conclusion that his problems havB always cleared 17 with time? IB A The joint pains that he complained of are -- were 13 regarded as arthritis, and hB did have rather severe 20 arthritis at the time that we saw him in 1979 when he was BB 21 years old. 22 Q Doctor, he tells you that he had arthritis 23 starting after the explosion, didn't he, sir? 24 A That's what he claimed, yes. 101 1 So what h e 's telling you is his pain started after e the explosion; isn't he, sir? 3 A I don't know whether you can distinguish between 4 pain -- 5 Doctor, you did not diagnose him as having 6 arthritis in 1953, did you, sir? Plaintiff's Exhibit 1701. 7 A Sir, in 1S53 he didn't make a complaint of B arthritis as hB did in '79. 9 But, Doctor, in 1953 he complained of pain, did he 10 not? He developed pains six weeks fallowing the assignment, 11 he developed pains in the right hip and both feet, 15 irritability and fatigue and insomnia. 13 A That was in 1949, sir. 14 And that he was still having, sir, in 1953 15 insomnia, pain in hips and thighs and feet, involuntary 16 switching of muscles of arms and legs, swelling of the 17 eyelids, slight nervousness and fatigue. 10 A This is what he claims, sir. 19 Q You believed he was telling the truth then, didn't 50 you, sir? 51 A I do, indeed. EE Q You believed hB was having those problems, didn't 53 you, sir? 54 A Yes. 102 1 In 1979 he is still having those problems, isn't 2 he, sir? 3 ft He indicated that he was having those -- some of 4 them, anyway. 5 Q Well, Doctor, the pain problem is the one we're B talking about now. He still has it, d O B S he not, sir, and 7 he says that it started after the explosion? He claimed 8 that he did and he claimed it started right after the 9 explosion, did he not, sir? 10 ft That's what he claimed, sir. 11 Q So h e 's saying to you that h e 's having the same 12 pain in 1373 that started in 1349; isn't that correct, sir? 13 ft That's what heclaimed, sir. 14 Doctor, that's not an indication that his pain 15 problem went away, solved with time, is it, sir? IB ft His pain could bB due to another cause, sir. 17 Q Excuse me, Doctor, that is not an indication that is his problems always cleared with time, is it, sir? is A Yes, / 20 Doctor, if he has the same pain in 1373 that he 21 had in 1343, are you saying that that shows that his problem 22 has cleared with time? 23 A Yes, sir. 24 Q Was hs havingpain in'43, sir? 103 1 A Yes, ha was. 2 Q lilas ha having pain in '79, sir? 3 A Ha claimed that he uias. 4 tly question is was he having pain in your Judgment 5 in 1973? B A Yes. The pain might be different, though. 7 Doctor, is there any description that it was a different? g A No, but here was an 86 year -- 10 Excuse me, Doctor, is there any description that 11 it was different, to support your speculation that it might 12 be different? 13 A There is no description, except arthritis, sir. 14 Doctor, could you answer my question, please, sir. 15 NR. HEINENAN: Objection, your Honor, he Just did. 16 THE COURT: Overruled. 17 THE WITNESS: Would' you repeat the question,10 plsase. 19 20 CQuestion read.? 21 22 THE WITNESS: There is no description in the 23 chart, sir. 24 NR. CARR: Your Honor, would you direct the 104 1 witness to answer my question? 2 THE COURT: Doctor -- 3 THE WITNESS: Ub U , I have. 4 THE COURT: -- please respond to the question. 5 THE WITNESS: Would you read the question? B THE COURT: The question dealt with the entire 7 record. The question dealt with the entire record. Please a answer the question. 9 THE WITNESS: No, there's no indication in the 10 record. 11 THE COURT*. Nr. Carr, is this a good point For a 12 short break? 13 , NR. CARR: Yb s , your Honor. 14 THE COURT: Wb '11 takB a short t b c b s s at this 15 time. The admonishments I gave you earlier will apply 16 during this break also. Court is in recess. 17 18 CShart recess.5 19 eo NR. HEINENAN: Your Honor, may Counsel approach 21 the bench For a minute, pleasa. 22 THE COURT: Sure. 23 24 105 1 (The Pollowing proceedings were had at the bench s out of the hearing of the jury:) 3 4 MR. HEINEMAN: Your Honor had mentioned something 5 about today handling this voir dire situation on thB juror, 6 on Mrs. -- what's the lady's name? I've forgotten. 7 THE COURT: McCann. B MR. HEINEMAN: Mrs. McCann. 9 THE COURT: I hadn't planned on doing it today. 10 W e 've been sort of delayed. Unless therB's some objection, 11 w e 'll take it up Wednesday. 12 MR. HEINEMAN: In that connection, your Honor, Mr. 13 Craven has'asked me if it would be possible for Mr. Carr to 14 file his brief on Tuesday and we take up the other issue on 15 Wednesday, the question on the voir dire of the Jury with 16 respect to the newspaper article and that sort of thing. 17 MR. CARR: I won't be able to do that. IB THE COURT: As far as the timing, I 'm not going to 19 order him to file it tomorrow. I've asked him today as soon BO as he can. You're in no way prejudiced by the amount of El time. The position I took thB other day is still my S2 position. S3 MR. HEINEMAN: With respect to the voir dire of 4 the single Juror, what time of day do you want to do that? 106 1 Do you want to do it before Court starts, or uihen do you 2 want to do it? 3 THE COURT: Let's see who is around at what point 4 in time. ThB morning break probably. 5 MR. HEINEMAN: Okay. 6 7 CThe Following proceedings mere had in the B presence and hearing of the jury:) 9 10 CBy fir. Carr) Doctor, me ujera on the subject of 11 Johnathan Hurley, and I have been -- and is there anything, 12 sir, in the record as you have it to support then a 13 statement that his problems have always cleared with time; 14 and if so, what is it, sir? 15 A Sir, I'm not sure I have the isolated pieces of 16 information that you're referring to. 17 I'm referring to' your records, sir, of Johnathan IB Hurley that you made on examination of him in 1979. It's 19 marked Plaintiff's Exhibit 1737. 20 A Yes, sir. 21 Q And what is that, sir, on what page does it 22 appear? 23 A Well, I think if one looks at page 226 -- 24 No, that's the number, Doctor. That's the 107 1 identification number. 2 A I 'm sorry. If one looks at paga 17 -- right -- 17 3 and 10, there are a number of changes between '53 and '79, 4 which I think are evident. H e 's not tired anymore, he's 5 not nervous anymore, h e 's not depressed anymore, he doesn't 6 recognize, perhaps, the parathesia -- 7 I 'm sorry, your voice is dropping, Doctor. I 0 can't hear you. 5 A He doesn't have parathesia. This is on page IB. 10 He claims that he may be dizzy on occasion. A man B6 years 11 old is actually entitled to that. He indicates that he 12 still has some musclB and Joint pain. But I think with the 13 history of arthritis that hB has, one has to take into 14 consideraion thB fact that this arthritis is at the age of 15 B 6 . This man is not disabled, that the pain that he 16 attributes to the explosion, but having arthritis, I would 17 say that age 66 he was doing very, very well. IB Q Now, Doctor, I didn't ask you whether or not he 19 was doing very, very well. Ny question was is there 20 anything in the record to support a conclusion that his 21 problems have always cleared with time. Now you suggested 22 that he hasn't checked the nervousness problem, but he has 23 checked the sleeplessness problem, has h B not, sir? 24 A Sleeplessness? ___________________________________________ 100 i 1 Q Yes, s A Yes, he has. 3 Q He has checked the muscle pain problem, has he 4 not, sir? 5 A He has. 6 He ha9 checked the joint pain problem, hasn't he, 7 sir? e A Yes, he has. 9 Now he tells you after that check that it started 10 -- that a result of thB muscle pain and the Joint pain are 11 arthritis that started after the explosion, does he not, 12 sir? 13 A Yes, he does. 14 And he refers you then to the pain that started 15 after the explosion back in 1943, does he not, sir? I S A I believe he does, 17 Q And hs tells you -- and he told you in *49 that he IB had had no problems until the explosion, did he not, in 13 which h e 's developed pain, then in the right hip and bath 20 fBet; isn't that correct, sir? 21 A I 'm not sure I have the same place thet you do, 22 H r . Carr. 23 Q What exhibit are you looking at, Doctor? 24 A I'm looking at the 1737. 103 1 Q A ll rig h t. 1737 -- e A Isn 't that it? 3 a n page 1 7 , and he t e l l s you t h a t h i s a r t h r i t i s 4 s t a r t e d a f t e r th e e x p lo s io n , on page 0 he s a y s m uscle ach es 5 and p a in s , a r t h r i t i s s t a r t e d th en , t h a t i s a t th e tim e o f 6 th e e x p l o s i o n , d o es he n o t, s i r ? And i s n ' t he t e l l i n g you y an t h i s r e p o r t , s i r , t h a t he s t i l l has t h e p a in s t h a t a sta rte d a fte r the explosion; i s n 't th at what h e 's t e lli n g 3 you, s ir ? 10 A W e l l , on p a g e 8, s i r , h e o n l y i n d i c a t e s t h a t t h e 11 m u s c l e p a i n s s t a r t e d t h e n , t h a t i s a f t e r t h e e x p l o s i o n -- ia Q N o . He s a y s m u s c l e a c h e s an d p a i n s -- 13 A Y e s . 14 -- s ta r te d then. 15 A R ig h t. 16 0 Ke s a y s a r t h r i t i s s t a r t e d th e n , d o e s n ' t ha. s i r ? 17 A Y e s, t h a t 's r i g h t . vVS- , 10 r r a t h e r t h e p e r s o n u i n t i n g t h i s dawn i n t e r p r e t s 13 u h a t he s a y s a s s a y i n g t h e m u s c l e a c h e s and p a i n s , a r t h r i t i s 20 s t a r t e d t h e n ; c o r r e c t , s i r ? 21 A N o . I t h i n k t h a t w h o e v e r d i d t h i s w o u l d b e 22 q u o t i n g fir . H u r l e y , 23 G T h e y w r o t e down u h a t h e s a i d , an d t h a t ' s w h a t he 24 s a i d ? 110 1 A A rthritis, yes. 2 N o . Hs s a i d , q u o t e , h e w r o t e dawn m u s c l e a c h e s 3 and p a in s , dash, a r t h r i t i s s t a r t e d th en ; c o r r e c t , s i r ? 4 A I th ink hs was q u o tin g Hr. H urley, s i r , y e s . 5 And he t e l l s us i n E x h i b i t 1 7 0 1 , y o u r 1 9 5 3 r e p o r t , 6 th a t he developed pains fo llo w in g the e x p lo sio n , did he not, 7 sir? B A Yes, he d id . 9 Q Now h e ' s t e l l i n g u s i n t h i s 1 S 7 S r e p o r t t h a t he 10 s t i l l h a s t h e p a i n s t h a t s t a r t e d a t t h e t i m e o f t h e 11 e x p l o s i o n , i s h e n o t , s i r ? 12 A A c c o r d i n g t o t h i s , t h e way i t ' s s t a t e d h e r e , y e s . 13 Q Now, D o c t o r , t h a t i s a p r o b l e m t h a t he ha d t h e n 14 and t h a t problem did not c l e a r w ith tim e, d id i t , s i r ? 15 A Yes, s i r , i t could have c le a re d with time. IB Q D o c t o r , i t may h a v e , i t c o u l d h a v e , b u t i t d i d 17 n o t , d i d i t , s i r ? H e ' s t a i l i n g y o u i n ' 7 9 , i s n ' t h e , s i r , IB t h a t h e ' s g o t t h e same p r o b l e m t h a t h e ha d i n ' 4 9 ? 1 9 A Ha t h o u g h t s o , s i r , y e s . 20 Q T h a t ' s w h a t h e ' s t e l l i n g y o u , i s n ' t i t , s i r ? 21 A He t h o u g h t s o , y e s . 22 Do y o u b e l i e v e him, s i r ? Do y o u b e l i e v e t h a t h e 23 i s h avin g p ain and th a t he had t h a t p a in a i l t h a t t i m e , s i r ? 24 A I t h i n k we w o u ld h a v e t o make a j u d g m e n t a b o u t t h e 111 > 1 same -- |/ r e Q E x c u s e me, D o c t o r . Hy q u e ^ i o n i s d i d y o u b e l i e v e 3 th a t he was t e l l i n g you th e tr u t h about th e pain t h a t ha * h a d ? 5 A He was t e l l i n g u s t h e t r u t h , b u t uie h a v e Lg make a S judgment about i t , s i r . 7 W ell, did you d ecid e th a t he was ly in g about the 9 pain? 3 A No, s i r . 10 Q D i d y o u d e c i d e t h a t i t was an i m a g i n a r y p a i n ? 11 A No. IE Q Or d id you d e c i d e t h a t he d id have p a in ? 13 A No. But in '60 he c o u ld have had a r t h r i t i s and 14 p a i n , 15 D o c t o r , I ' m p e r f e c t l y a w a r e o f t h a t . You made IB t h a t p o i n t . B u t mu q u e s t i o n i s , s i r , he t o l d y o u i n 1 3 5 3 17 t h a t h i s p a i n p r o b l e m s t a r t e d w i t h t h e e x p l o s i o n , d i d he 13 not. s i r ? 13 A He s a i d t h a t , s i r . 20 And h e s a i d i n 1 9 5 3 t h a t he s t i l l h a s t h o s e 5 1 problems i n 1 9 5 3 , d i d n ' t h e ; s i r ? 55 A Id some degree, sir. 23 Q D o c t o r , he s a i d h i s p r e s e n t c o m p l a i n t s c o n s i s t o f - 54 i n s o m n i a p a i n m h i p s , t h i g h s and F e e t , i n v o l u n t a r y ne 1 tw itc h in g o f m uscles o f arms and le g s , d id n ' t he, s i r ? T h a t ' s n ot to some d e g r e e . H e 's t e l l i n g you h e ' s g o t th e s e 3 problems, i s n ' t he, s ir ? 4 A He also said, sir, the eruption and pains have 5 regressed considerably during the past year, the sentence 6 Just before that, sir. 7 W ell, Doctor, t h a t ' s what your person w ritin g i t B down, s i r , s a i d , t h e r e ' s been co n tin u o u s and s te a d y 3 r e g r e s s io n o f a l l s k in le s i o n s and nan-cutaneous symptoms. 10 A T h a t i s w h a t f i r . H u r l e y t o l d t h e d o c t o r , s i r . 11 Q He s t i l l h a s t h e p r o b l e m s i n ' 5 3 , d o e s n ' t - h e , s i r ? 12 A B u t much l e s s , s i r . 1 3 D D o c t o r , my q u e s t i o n i s d o e s n ' t h e s t i l l h a v e t h e 14 p r o b l e m s i n ' 5 3 . 1 5 A Ha h a s p a i n s and t h e c h l o r a c n e , b u t a t a much IB l e s s e r l e v e l , s i r . 1 7 Q D o c t o r , i s t h e a n s w e r t o my q u e s t i o n y e s , a s he IB s t a t e d on page 5 1, h i s p r e s e n t co m p la in ts, he s t i l l has 19 p ain s in h ip s , th ig h s and f e e t , in v o lu n ta r y t w itc h in g o f 0 m u s c l e s o f a r m s an d l e g s ? Was h e s t i l l h a v i n g t h o s e 21 p r o b l e m s i n ' 5 3 , D r , S u s k i n d ? 2 A He w a s s t i l l h a v i n g some o f t h o s e p r o b l e m s i n ' 5 3 , 3 s i r . 4 D T h G s s p r o b l e m s a r e t a l k i n g a b o u t some o f t h o s e 113 1 problems is the pains, i s i t not, s ir ? 2 8 Yes, as he d e scrib e d i t . 3 Q And, D octo r, th o s e p a in s he was s t i l l h avin g in 4 ' 79, w asn' t he, s i r , as he d e s c r ib e d i t ? 5 A As he d e s c rib e d i t , s i r . B Those problems as he described i t did not re so lv e / with tim e, they did not c le a r w ith tim e, did they, Dr. 8 Susklnd? 3 A Well, se v e ra l problems did, s ir . 10 Q I u n d e r s t a n d t h a t , D o c t o r . 11 A B u t a l a r g e number o f them d i d , s i r . 12 Q D o c t o r , p l e a s e l e t me f i n i s h my q u e s t i o n . The 1 3 s t a t e m e n t i n t h e AMA i s t h a t t h e s e p r o b l e m s h a v e a l w a y s l1! c l e a r e d w i t h t i m e . I s n ' t t h a t w ha t y o u a i l s a i d a t t h a 15 time, s i r ? 16 A T h a t ' s w h a t t h e AHA r e p o r t r e a d a t t h e t i m e , i n 17 1381, s i r . 18 Q A l l r i g h t , D octor. These problems o f fir. 13 H u rle y ' s, they did not a l l c le a r w ith tim e, did th ey, s i r ? 20 A In t h e c a s e o f Mr. H u r l e y t h e y d i d , s i r . 21 Q D i d h e n o t c o n t i n u e t o h a v e a c h e s a nd p a i n s i n 22 '79? 23 A Y e s, but not a s a r e s u l t -- 24 D T h at w ere th e same a c h e s and p a in s t h a t he s a i d he 114 1 had i n *49 and ' 5 3 ? 2 ft C o r r e c t . 3 Q You b e l i e v e d him to be t e l l i n g th e t r u t h , d i d n ' t 4 you, s ir ? 5 A I do, indeed. 6 D D o c to r, then he i s having th ose problem s, i s he 7 not, s ir ? a A I f you a re r e f e r r i n g to pain alon e, he in d ic a te s , 3 ye s, t h a t ha was h a v in g problem s a t age BS, yBS, 10 Q I s t h e a n s w e r t o my q u e s t i o n y e s , ha was s t i l l 11 h a v i n g t h e same p r o b l e m s t h a t h e ha d i n ' 49 an d *5 3? IE A Y e s , s i r , h e s a i d t h e y w e r e t h e same p r o b l e m s . 13 Q That problem did not r e s o l v e , did i t , s i r ? 14 A He s a i d i t d i d n ' t r e s o l v e . 15 Q W ell, d id you b e l i e v e him? IE A Y e s , we d i d . 17 Q A l l r i g h t . Th e n y o u b e l i e v e d t h a t t h e y d i d n o t IB r e s o l v e ; i s n ' t t h a t r i g h t , s i r ? 19 A Mot n e c e s s a r i l y . 20 Q W e l l , D o c t o r , e i t h e r y o u b e l i e v e d him o r y o u d i d E l n o t b e l i e 4fe h i m . EE A We b e l i e v e d h i m . B u t uie h a v e t o i n t e r p r e t w h a t we 23 s a i d in v ie w o f h i s age and our e x a m in a t io n . 4 Q D c c t c r , i f y o u b e l i e v e d him, t h a t means i n y o u r 115 1 judgment he tuas still having the pain that he complained e about in *49 and '53: isn't that right, sir? a A He was still having the problem, a problem of 4 pain. 5 Q And that problem had not cleared with time, had B it, sir? 7 A No. B Q All right. Doctor, he also had a nerve sensation 3 problem m *49 and '53, did he not, sir? 10 A Yes. 11 Q Doctor, he had abnormal nerve problems in '79, did 12 he not, sir? 13 A He had some sensory problems in *79, sir, 14 D 5d t h a t p r o b l e m d i d not -- h e h a d t h B p r o b l e m in 15 *49, he had the problem in 'S3, he had the problem in *79, IB did he not, sir? 17 A That particular problem he had in *79 as well, IB sir. 19 And that did not clear with time, did it, sir? 20 A No, it did not. 21 a All right. Doctor, I'd now like to direct your 22 attention to Lonnie Hurley. That would be Exhibit 1730. 23 While we didn't have any additional medical on Johnathan 24 Hurley From Monsanto, we do have additional medical on 115 1 Lonnie Hurley From Monsanto. a HR, HEINEMAN: Objection, your Honor. That's Just 3 not accurate. I can demonstrate it to the Court. 4 THE COURT: Gentlemen, let's approach the bench. 5 6 CThe following proceedings were had at the bench 7 out of the presence and hearing of the Jury:! Q S HR. HEINEMAN: I 've got down here -- 10 THE COURT: Wait 'till he comes up. 11 HR. HEINEMAN: I 've got 70 pages. 12 MR. CARR: That is all post '79, Counsel. 13 MR. HEINEMAN; But you didn't say that in your 14 statement in front oF the Jury. 15 MR. CARR: Let me correct it. 15 MR. HEINEMAN: No, no. 17 THE COURT: Wait a second. Ule uent through this ia same thing again up here beFore on the record, iF you revise 19 it, as Far as the 1979 cut-oFF date, 20 MR. HEINEMAN: I don't know iF that's accurate. 21 THE COURT: That's right. You didn't on the other 22 one either. 23 MR. HEINEMAN: I know he has plant medical records' 24 which have bean given to him in hard copy and have been 117 i given to him -- 2 THE COURT: That's not the point. 3 MR. HEINEMAN: Oh, yes, it is, your Honor. 4 THE COURT: That's not the question, 5 MR. HEINEMAN: The one type of document h e 's not 6 giving this witness is plant medical records. 7 MR, CARR: I don't have them, Counsel. Q MR. HEINEMAN: He does have plant medical records. 3 They've been given to him. 10 THE COURT: This is the third time I'm going into 11 this. Revise your statement. Let's go. le 13 CThe following proceedings were had in the14 presence and hearing of the Jury:) 15 16 GJ CBy Mr. Carr) Doctor, to correct any impression 17 that I may have made, on Johnathan Hurley, the records that 18 we have, we have no records on him, no medical records on 13 him from Monsanto up to mid 1373. All right. And now I 'm 20 giving you Lonnie Hurley's medical records. Could you mark HI this as an exhibit. 22 23 CPlaintiffs' Exhibit 1770 was marked for 24 identification by the court reporter.) 110 1 0 CBy M r Carr) Doctor, I 'll hand you what's bean e marked Plaintiff's Exhibit 1770, and represent to you that 3 thosB are the medical records up to mid 1979 that we have 4 received from Monsanto relaing to Lonnie Hurley, Could I 5 have Four tabs? 6 7 CPlaintiffs* Exhibits 1771, 1772, 1773 and 1774 a were marked for identification by the court 9 reporter.) 10 11 CBy Mr. Carr) Doctor, I hand you uihat's been 12 marked as Plaintiffs' Exhibit 1771, which should be the tab 13 numbered 1 that you have there; 1772, which should be the 14 tab numbered 2 that you have there; 1773, which is thB tab 15 numbered 3 that you have there; and 1774, which should be IB the one that's on the second page of that exhibit, which 17 should be the tab numbered 4 that you have there. v 10 Your Honor, I 'd likB to offer this exhibit into 19 evidence, it should he 1770, I believe. SO THE COURT: All right. Any objections? ei MR. HEINEMAN: May I see it? Your Honor, may ws 22 have a running objection with respect to the allegation 23 about these being all the records, number one; number two, 4 on the foundation issue as w b II, lack of foundation. 113 1 THE COURT: 1*11 incorporate what was argued a before. It's admitted over objection. 3 HR, CARR: Your Honor, I 'd like to pass these 4 exhibits, 1771, 2, 3, and 4 to the Jury. 5 THE COURT: Fine, you may do so. 6 CBy Mr. Carr? Or. Suskind, 1771 shows that Nr, 7 Hurley had acute cellulitis and lymphangitis and phlebitis 8 in 1370. 3 A That's as the diagnosis reads in this exhibit, 10 sir. 11 G It also in the history and the physical exam part 12 points out that he had been exposed to 2,4,5-T, does it not, 13 sir? 14 A That's what it says, yes. 15 0 And, Doctor, Exhibit 1772 -- this was a 1S7B 16 record, 1976 record, that is Plaintiffs' Exhibit 1772, 17 shows a cellulitis problem of the left foot at that time, 18 does it not, sir? 13 A That's what it shows, sir.. 20 G No history of injury to the foot, redness of the 21 middle three toes, and admittedly possible cellulitis with 22 the left foot, and this diagnosis was that he did have 23 cellulitis of the left Foot; isn't that correct, sir? 24 A That's what it reads, sir. 120 1 Q Doctor, Exhibit 1773, dated 1955, shows, does it 2 not, that he has chloracne type abscess of the left foot and 3 lymphangitis then and -- 4 A That was that doctor's diagnosis, sir. 5 Q And that was the diagnosis in 1955? 6 A That was that doctor's diagnosis, sir. 7 Q My question was that was the diagnosis in 1355, B wasn't it, sir? 9 A That was the diagnosis which is recorded in this 10 record by the doctor. 11 Q Is that an answer to my question, yes, that was a 12 diagnosis in 1955? 13 A Yes. That was the diagnosis given here, sir, yes, 14 sir. 15 According to the diagnosis he had the same problem 15 in 197B, did he not, sir, in '75 and in '7B? r- 17 A It would seem to be similar, yes, sir. 19 D That is not a problem that cleared with timB, did 19 it, sir? 20 A It could. 21 Q Doctor, he had it as late as 197B, 23 years after 22 1955. It was not a problem that cleared with time, did it, 23 sir? 24 A If you are asking did he have it repeatedly, yes, 121 1 air, he had it repeatedly. a No. My question is, sir, this problem was not a 3 problem that always cleared with time, was it, sir? 4 A This ie a problem that could clear with time. I S wasn't referring to lymphangitis. 6 HR. CARR: Your Honor, would you direct the 7 witness to try to refrain from argument with me and to 8 answer my question. 9 HR. HEINEHAN: Objection, your Honor. Hay Counsel 10 approach the bBnch? 11 THE COURT: Yes, you may. ie 13 CThe following proceedings were had at the bench 14 out of the hearing of the jury:J 15 IE HR. HEINEHAN: The premise that fir. Carr is 17 working on here is that those problems mentioned in the AHA 18 article are the ones that cleared with time. 19 HR. CARR: It's not Just those problems. 50 HR. HEINEHAN: That's what the article says, El HR. CARR: But thB plain implication -- 2 HR. HEINEHAN: Oh, go an. 3 HR. CARR: Hay I finish then? 54 HR. HEINEHAN: Well, you interrupted me. 122 X MR. CARR: Well, then finish. s M R . HEINEMAN: The article talks about certain 3 kinds of problems clearing with time. The article doesn't 4 talk about venereal disease. The article doesn't talk about 5 a whole slew of other problems that these people may have 6 had over a period of time. It talks about certain problems 7 clearing with time. The article doesn't say anything about B this problem, and I object to it. It's misleading to the 9 Jury. It's mislsading to the witness, and I'm sure 10 intentionally so, and it has nothing to da with it. If the 11 premise of this line of examination is based on the AMA 12 article, then we ought to stick to the things that the AMA 13 article refers to in that portion that h e 's referring to. 14 MR. CARR: Your Honor, I didn't know that I was 15 obligated to stick to any scenario, any scheme that Counsel IS wants me to. My premise of my cross examination is that 17 this doctor and Monsanto has represented to the world, IB beginning back in 19 -- well, whenever it was, whenever the IS first exhibit came out, in 1973, that the problems that 20 these men had in Nitro went away with time and only very few 21 had prohlems associated with thB spill, they all got well 22 and that's a premise that the AMA is operating. The rest of 23 my cross examination is that when you get damaged by dioxin,24 it does not clear up with time, the problems da not go sway, 123 1 they stay For their lifetime. s THE COURT: Objection is overruled. 3 4 CThe Following proceedings were had in the 5 presence and hearing of the JuryO 6 7 THE COURT: Doctor, please answer the question B that was asked d F you. I don't think your last answer was 9 responsive to the question. 10 THE WITNESS*. All right. This problem does clear 11 with time, sir. 12 MR. CARR: Your Honor, I submit -- 13 THE COURT: Doctor, that was not responsive. 14 Please read the last question back to the witness. 15 THE WITNESS: Thank you. 16 17 CQuestion read.) IB i 19 THE WITNESS: Yes, this is.a problem that does 20 clear with time, sir. 1 CBy Mr. Carr) Doctor, my question is did this 2 problem -- was this a problem that cleared with time in the 23 case of Lonnie Hurley? 24 A From the records I have here, sir, he had it 124 1 repeatedly. a Q Could you answer my question, Or. Suskind. 3 A From these records ha had it -- it didn't clear up 4 until -- well, he had an episode as lata as 1975, yes, sir. 5 An episode as late as 197B, Dr. Suskind. 6 A Or 1970, sir, yes. 7 D So it was not a problem that cleared with time. a It continually recurred over those years, did it not? a A Which is characteristic of lymphangitis, sir, 10 Q 1 agree it's a characteristic. It's a problem in u the case of Dr. Hurley that did not clear with tima; isn't 12 that correct, sir? 13 A In this instance he had it repeatedly, sir, yea. 14 The answer to my question is yes, it did not clear 15 with time? IE A In this instance, in this instance, From 1973 to 17 197B ha had repeated episodes. ia He had it From 1355, Doctor, not '73. From 1955. 19 That's the date oF the First record you have, of Exhibit 20 1773. 21 A He had an episode in 1973. I mean 1955, sir. 22 D And it is a problem that in this instance with Mr. 23 Hurley's problem did not clear with time, did it, sir? 24 A From these records, yes, he had it repeatedly. 125 1 Q Now, Doctor, 1774 is also from the Mount Sinai 2 Medical records. It shows, does it not, sir, that he still 3 has the things listed there on that first page, the fatigue, 4 the weakness in the legs, the nervousness and the insomnia, 5 and on the next page muscle fatigue? 6 A The insomnia ha didn't have at the time of that 7 examination, sir. And that nervousness he didn't havB at B the time of the examination. He had weakness of the legs at 9 the time of that examination. It doss unfortunately 10 indicate that hB had a disc operation in 1972, which could 11 explain the weakness of the legs. 12 G Doctor, he said he had the weakness of the legs 13 beginning in 1949, did he not, sir? 14 A Ha did, indeed. That's what he said. 15 D Did he have a disc operation in 1949? 16 A No. He had the disc operation in '72. This is 17 `79, sir. IB D He tells us here, sir, does he not, sir, that the 19 weakness started in `49 and it continued on through the 20 present time, doesn't it, sir? 21 A It only says that hB had it in '49, and it's 22 currently active. It doesn't say that it continued. 23 Q Doctor, they're asking For problems and when they 24 first noted the problem, aren't they, sir? 126 1 A Correct, sir. 2 Q And that is the clear meaning.that what problem 3 did you have, when did it start and d D you still have it; 4 isn't that right, sir? 5 A It asks whether you still have it as well, yea, 6 sir. 7 Doctor, your examination in 1979, you confirmed 8 that h e 's still having these problems, did you not, sir? 9 A 1 would have to lcok at my records, sir, which I 10 don't havs hBrs. 1 don't have them with me. 11 1738, could you give that to him. If you would IS look at pages 17 and 18, Doctor. Are you there, Doctor? 13 A I am, indeed, sir. 14 Do you see the complaints of sleeplessness and 15 muscle pain on page 17? Do you, sir? IB A Yes, I do, sir. 17 MR. HEINEMAN: Your Honor, excuse me. Objection. IB Could Counsel approach the bench? 19 THE COURT! Sure. SO 21 CThe following proceedings were had at the bench 2 out of the hearing of the jury;} 23 24 M R .HEINEMAN; Your Honor, I object to this, what 127 1 Dr. Carr is suggesting tD this witness. The document, you 2 see the -- 3 THE COURT: Which one? 4 HR. HE INEMAN: This is the one w e 're talking 5 about, 1738. The document has an asterisk next to 6 sleeplessness.4 It also has an asterisk next to muscle pain. 7 At the bottom since his back operation. 9 MR. CARR: TherB's no asterisk next to that. It S says since back operation, it's nothing to do with 10 sleeplessness Dr musclB pain. Since back operation left leg 11 feels numb, something, while working. It has nothing to do le with sleeplessness or muscle pain. 13 MR. HEINEMAN: What in the world would the 14 asterisk relate to? 15 MR. CARR: I don't know. It*s your exhibit, not 16 mine. 17 THE COURT: The objection is overruled. Let's 10 proceed. 19 20 CThe following proceedings were had in the 21 presence and hearing of the Jury:! 22 23 Q CBy Mr. Carr! Doctor, on thB next page you see 24 the complaint of muscle weakness in the limbs? 12B 1 A There's no indication there of when it started, a sir. 3 Q Doctor, could you just please answer the question? 4 A Yes. Yes. I see it, sir. 5 Q You have the problems that hB complained of in S 1953, Doctor, and I don't want to go back to that record all 7 the time. He is currently complaining about muscle weakness B in the limbs, is he not, sir? 9 A Yes, sir. 10 Q And h e 's also complaining about always tired and 11 Fatigued, is he not, sir? 12 A That's been checked, sir, yes, sir. 13 Q H e 's also complaining about nervousness, isn't he, 14 sir? 15 A Yes. 16 Q And on page 24 he tells us that h e 's had this 17 nervousness, that h e 's nervous and irritable For the past 30 IB years, doesn't he, sir? 19 A He told the physician that. 20 Q And that 30 years would take it back to 1943, 21 wouldn't it, sir? 22 A That's what he told the physician, sir. 23 Q Doctor, are these then -- are these problems oF 24 Hr. Hurley's problems that have always cleared with time? 123 1 8 I would say in this instance, yes. 2 Doctor, did he have the problems of fatigue that 3 started, and nervousness and irritability that started in 4 1949? 5 8 Yes, sir. 6 D Does he still have the problems of nervousness, 7 irritability and fatigue in 1973? 8 A Uncertain, sir. 9 Sir? 10 A I'm uncertain about that. 11 Did he not say that he did, sir? IS A He said that he did, sir. 13 Do you have any evidence to support a conclusion 14 that he did not have these problems in 1979? IF so, please 15 point it out to me, sir. 16 A Yes. Under the diagnosis on page 25, sir. 17 On page 25? I IB A Yes. The diagnosis given by the phyaician, this 13 man is in good general health and the only significant SO problems is limited to the skin, according to the comments, SI and the physician's judgment is that there is some increase SS in nervousness, but medication is not necessary. That is S3 the judgment of the physician. 24 Doctor, Just on that point alone, the physician 130 1 says that h e 's got increased nervousness, does he not, sir? a A He said ha had some increased nervousness, which 3 was the -4 Q Doctor, isn't that -- you're not going noui on what 5 he said, you'rB now going on what a physician Found, sir. 6 My questions have been related to what the person says is 7 wrong with him, not what one of your doctors or Monsanto's 0 doctors have said. I have limited my, hopefully, my a questions to what the man's symptoms are. 10 A Okay. n Mow, Doctor, he said that he had nervousness that 12 started in 1349, did he not, sir? 13 A Right. 14 Q And he said that in 1953, he said that in 1979, 15 did he not, sir? IB A On page 24 the doctor has, on physical 17 examination, chacked no, which means that he didn't find any IB neuropsychiatric problems, and some increase in nervousness 19 is a complaint, sir. 20 Doctor, what kind ofnervousness andirritability 21 can you show on a physical examination? 22 A The way the individual behaves. Like in Mr. 23 Farley, sir, he appeared depressed and the physician had in 24 the examination a statement that there was a flat ar 131 1 depressed affect. He looked depressed. In this instance s the doctor has nothing under whether this man looked nervous 3 or not. But h does say in his comments that thrB is some 4 increased nervousness. That's the complaint. But 5 medication was not required. That's the comment of the 6 physician. We have to taka that at face value, sir. 7 Q Doctor, ue don't -- we take what the physicians 0 says at face value, but ws don't take what the patient says 9 at face value; is that thB way you look at it, Dr. Suskind? 10 A Well, ana is a subject -- 11 0 Excuse me, Doctor. Is that the way you look at 12 it? 13 A No, that's not the way we look at it. 14 Q The man told you that he was nervous and irritablB 15 and had been For 30 years, since the exposure. IB A He told the interviewar that, sir. He didn't tall 17 the doctor that. IB Q No, Doctor, that's what was said to the person 19 that did the physical examination, if you'll look at that on 20 page 24. 21 A Right. 22 Q That is not your interviewer, that's the doctor. 23 A That's right, sir. 24 Q That's not the interviewer, is it, sir? 132 1 A He told the interviewer as wall. 2 Doctor, that is not the interviewer, is it, sir? 3 A That's the doctor, sir* 4 Which is not the interviewer ; correct, sir? 5 A It's not the person who administrated the 6 questionnaire, that *s true. 7 Q Is it true that the statements made on pge 24 were 8 made by the doctor and not made by the interviewer? 9 A No, they were made by the patient. 10 Q Doctor, the entry made an page 24 was made by the 11 doctor, was it not, sir? 12 A The entry was made by the doctor, yes, sir. 13 And he wrote down, did he not, under the column 14 neuropsychiatrie, nervous and irritable past 30 years, no 15 medication, didn't he say that, sir? 1 A He did, indeed. 17 And then right next to it there's a column For 18 physical examination,* isn't there, sir? 19 A Right. 20 Q Sir? 21 A Yes, 22 And the physical examination includes thB 23 neurological examination, does it not, sir? 24 A Right. And also observation as to the behavior. 133 1 0 Excuse me. Doctor, my question is the physical 2 examination includes the neurological, doesn't it, sir? 3 A Yes, it does. 4 Is there a test you can give on a physical exam, 5 sir, For nervousness? 6 A Yes, one can observe. 7 Q Doctor, you indicated in Farley's, in Farley's 8 case, sir, there was some indication in the physical 3 examination that thB man uias flat. 10 A Had a depressed affect, I believe. n 0 Doctor, if you will, the afFect means what, sir? 12 A It means that the individual is very, usually slow 13 speaking, and doesn't show any emotion whatsoever and looked 14 depressed. That's on page 25, sir. 15 Q That arrow, Doctor, with an arrow down means h 16 looked depressed? 17 A Mo, it's Dn page 25, sir. 18 Q I know, oh, on page -- 19 A It says decreased affect. Decreased affect on 20 page 5. ri page 24 there is an arrow which shows decreased 21 affect, and the neurological is negative, but the history 22 apparently taken by the doctor demonstrated that he did have 23 episodes of depression, 24 Yes. And was there any such report like that, 134 1 Doctor, For Lonnie Hurley? 2 A Mo. There uias a -- there was a history of 3 nervousness and irritability, but when the examination was 4 actually done the doctor simply checked no, which meant that 5 he didn't observe anything abnormal. 6 G Doctor, are you telling us, sir, that you can 7 diagnose that a man has not been nervous and Irritable For B 30 years by looking at the man or conducting a physical 9 examination oF the man? 10 A No, not For 30 years, sir, but you can tell 11 whether the man is nervous at the time oF the examination. IS Q Doctor, did you believe that the doctor said that 13 hB was nervous all the time? 14 A No. The history as taken by the doctor reads 15 nervous and irritable past 30 years. 15 G Doctor, I understand that. I can read. My 17 question is did you understand that the men said he was IB nervous all the time? 19 A N o . SO Doctor, yourowndoctor found that hB wasnervous, SI did he not, sir? 22 A No, sir. S3 Q Doctor, look atpage 2 5 . Hemade the comment, his 24 Findings as that there was some increased nervousness, did 135 1 he not, sir? s A I believe he was referring to the history, air. 3 Q Oh, Doctor, this is on the page where he has 4 abnormal findings, physical examination, diagnosis, 5 impression and comments. 6 A Okay. 7 Q These are the comments of the doctor, aren't they, S sir? 9 A Correct. 10 0 He comments medical problems pretty well limited 11 to skin, some increased nervousness, but medication not IS required; isn't that what he said, sir? 13 A That's uihat it says, sir. 14 Q Doctor, does that indicate to you that the man's 15 nervousness has gone away and that he doesn't have it? 16 A It indicates to me that the doctor didn't observe 17 it, though. 10 Q Doctor, could you answer my question, please, sir? 19 A Yes. Yes. 0 That indicates to you that thenervousness has 21 gone away? 2 A Yes, sir. 3 Q So you believe then that thisman was lying when 24 he said he was nervous and had been nervous for 30 years; is j 136 1 that correct, sir? 2 A No, I don't believe so. 3 0 Do you believe he urns telling the truth? 4 A I believe he thought he was telling the truth. 5 Q Do you believe that he was telling the truth, sir? E A I believe ha thought he was tailing the truth, 7 sir. 8 Q Doctor, if he thought he was telling the truth, he 9 was telling the truth as he knew it, wes he not, sir? 10 A He believed ha was tailing the truth, yes, sir. 11 Q And hB believed he was nervous, didn't hB? 12 A Yes, but the doctor did not observe it, sir. 13 MR. CARR: Your Honor, would you direct the 14 witness to quit volunteering statements. riy question wasn't 15 as to what the doctor observed. My question was what the 16 witness -- 17 THE WITNESS: Yes, sir. i* 18 THE COURT: Doctor, it was a clearly delineated 19 question. Please direct your response to the question asked 20 of you. 21 Q CBy fir. Carr} Doctor, the man said he was nervous 22 and said he had been nervous for 30 years. 23 A That is correct, for the past 30 years. He didn't' 24 say continuous, sir. 137 1 Q Doctor, can you interpret it in some manner other B than h e 's had it For the past 30 years? 3 A I 'm taking it at Face value, sir. 4 Q And at face value how do you take that other than 5 reading nervous and irritability For the past 30 years? 6 A One can be -- 7 Interpret that For me in some way other than he's S had it For the past 30 years. 9 A One mould interpret this as during a period of 30 10 years he mas nervous and irritable. 11 One time? 12 A But it doesn't mean to say it was contiuous. 13 Q All right. You think ha was nervous once, this 14 means he mas nervous once in the past 30 years, or could 15 mean that, Doctor? 16 A Oh, no. No. I don't believe that. 17 Q Doctor, iF you look on page IB hs also puts down IB current nervousness, past nervousness, and that it started 19 in 1949, doesn't he, sir? HO A That's what he says, sir, yes. HI 0 Do you bBlieve that fir. Hurley is incapablB of 2S determining whether or not h e 's been nervous For ths past 30 23 years, Dr. Suskind? 24 A No, I don't believe h e 's incapable. 13S 1 Do you believe that an ordinary person is capable e of knowing whether or not he had been nervous or not, 3 different From the way he was before the explosion? 4 A Yes, I believe so. 5 And, Doctor, he told you that he had developed B nervousness in 1953. He told you he developed the 7 nervousness, did he not, sir? Did he not, sir? B A Yes, I believe he did. 9 And you said then that it was one of his current 10 problems, did you not, sir? Page 12 of the 1953 report, Dr. 11 Suskind. 12 A Yes. 13 Did you put down there that you didn't believe 14 him, that he was just nervous once since 1949, Dr did you 15 consider at that time, take it to be the truth, when he said 16 that he had developed nervousness following the spill and 17 that he's still nervous? IB A I can answer that question by -- IS Q Doctor, please answer it forthrightly and 20 directly, if you would, sir. Did you believe, did he tell 21 you that he developed it after the spill and that he had it 22 in '53? 23 A Can you read the previous question? I 'd like to 24 answer that First, sir. 139 1 THE COUHTt Doctor, answer the question that utaa 2 asked of you last, please. 3 THE WITNESS: Now? 4 THE COURT: Yes. 5 THE WITNESS: Okay. Would you repeat that B question, please. 7 8 CQuestion read.) 3 10 THE WITNESS: Yes. I believed him, yes. U Q CBy Mr. Carr) And, Doctor, he had that same IE problem according to his judgment, Doctor -- strike that. 13 Was there any indication in the 1953 report that the 14 physician found that he was or was not nervous or did the 15 physician put down uihat the man said he complained of and IS developed? 17 A I believe that the physician said that he had a 10 continuous eruption. There's a summary of it on page 35. 19 Fatigue, nervousness, pain in the legs, and all the symptoms E0 are'regressing. El Q Doctor, do you believe that you've answered' my S question? What do you think I asked you? Did I ask you if S3 )the symptoms were regressing, Doctor? What did I ask you? E4 A You asked me whether or not he had the symptoms in 140 1 1953. i s No, Doctor. What I asked you was whether or not 3 the doctor had made a finding that the man was nervous in 4 1953. 5 A I bBlievB he stated that he had a nervous 6 complaint in 1953. 7 That's right, Doctor, tig question is did he make Q a finding that he was nervous in 19537 9 A I don't believe the doctor recorded it in that 10 way, sir. 11 Q Well, Doctor, my question is did he make a finding 12 in 1953 that the man was nervous? 13 (1R. HE INEMAN: Objection, asked and answered. 14 THE COURT: Objection is overruled. It's not. 15 THE WITNESS: There's nothing in the abnormal 15 clinical Findings which relate to nervousness, air. 17 Q CBy Mr. Carr) So ia that a no to my question, Dr. 10 Suskind, that he did not make a finding dF nervousness in 19 19537 20 A He didn't record one, sir. 21 Q Doctor, did he makB a finding of. nervousness in 22 1953? 23 A I can't tell you. All I can go by is this report, 24 sir. I don't know what the individual records show. 141 1 Q Did he record a Finding of nervousness in 19537 5 A An oral? 3 Q Did hB record a finding of nervousness in 19537 4 A He did not, sir. 5 And you accepted at that time in the absence oF 6 any Finding thB man's statement that he was nervous, didn't 7 you, sir? a A U)e did. 9 Q Now, Doctor, in 1949 -- 1979 rather, the man makes 10 the same statement, doss ha not, sir? 11 A Yes. 12 Q And you are now not willing to accept his 13 statement; is that correct, sir? 14 A N o , 15 That is not correct? Are you willing to accept IS his statement in '79 that he's nervous and has been that way 17 since 1949? Are you willing to accept that, Doctor? 10 A ThBre are t w D parts of that question, sir. I*d 19 like to answer them separately, 20 Q Doctor, are you willing tD accept the statement 21 that hB made the statement that he was nervous in 1949? 22 A Yes. 23 MR. HEINEMAN: Objection. Objection to the 54 i n t e r r u p t i o n or the answer. 142 1 THE COURT: 1 think the question was being e revised. 3 THE UIITNESS: 6a ahead, sir. 4 Q CBy Mr. Carr) Doctor, he made that statement, did 5 you accept that statement as true in 1373? 6 A No. 7 Q Now, Doctor, what in the record do you have that B supports your disregard of his statement that he's bean S nervous, that he is nervous since 1943, that you*11 10 disregard that in 1373, but you accept what he said in 1353 11 on the same point? le MR. HE INEMAN: Object, it's been asked and 13 answered. 14 THE COURT: Objection is overruled. It's not. 15 THE WITNESS: This was a different kind of 16 examination, sir, 17 CBy Mr. Carr) Doctor, did you understand my 10 question? 13 A Yes, I did, sir. 20 Will you answer my question, sir, plsase, 21 A Would you repeat the question. 25 23 CQuestion read.) 24 143 1 s 3 4 5 6 7 8 9 10 11 12 13 14 15 IB 17 IB 19 50 El ES 53 ' 54 THE WITNESS: The fact that in the record under the neuropsychiatrie findings there*s no indication, and the doctor had a good opportnity tD observe these people, bacause this was a thorough examination, there's no indication that he was nervous, sir. CBy nr. Carr) Doctor, but he had to offset that, dii he not, the doctors comments that there was soma inirsased nervousness? A I believe he was referring to the -- Doctor, does he not put in his comments some increased nervousness? a He does, indeed, NR. HEINEMAN : Objection. He interrupted the answer. THE COURT: Objection is overruled. THE WITNESS: Yes, he does, sir. Q CBy hr. Carr) That is his finding, isn't it, sir? A No, that is his -- he rafBrs to his history of nervousness and irritability. Q Doctor, he makes no reference to a history there, h B 's talking about medical problems, is he not, sir? A IF you werB referring to the findings, sir, then he would have had something on page 4 under findings. Q Doctor, he was not a psychiatrist. He did not 144 1 examine him For nervousness. There is no place in any of a these records For a finding of nervousness or no 3 nervousness, is there, sir? 4 A There is an opportunity for the doctor -- S Q Could you answer my question, sir? 6 A Ves, there is. 7 Q Where is thBre -- 8 A There's an opportunity for the doctor on 9 examination in doing a behavioral examination to indicate / 10 yes or no, and in this instance it uias no. 11 Q And this doctor indicated that in the section on 12 physical examination, neurapsychiatric, sir.' 13 A Yes, sir. 14 Thera was absolutely no psychiatric or 15 psychological exam given, was there, sir? IB A There was an opportunity to talk with the 17 individual -- IB Doctor, could you answer my question, please, sir. 19 A Not as a psychiatrist would do a psychiatric 20 examination, sir. 21 Q Doctor, his statements, his comments on this page 22 entitled abnormal Findings, and calling For comments, says 23 medical problems are pretty well limited to skin. That's 24 his judgment, isn't it, sir? 145 1 A Right. H Q Isn't he siuing there, in hisJudgment themedical I 3 problems are pretty sail limited to thB skin? /r 4 A He says thit, sir. 5 0 And he alsi says some inoraasednervousness, but B medication not requited,.doesn't he, sir? 7 He got tha from the patient. e Q Excuse me, Doctor, could you answer that question 9 A He says that, sir, yes, sir. i i ao He says that in his comment section, does he not, il sir? is A Yes. 13 Q Now, Doctor, I 'd like to next refer to the case of 14 David F. Milam, if you would, sir. Mould you give the 15 witness Exhibit 1739, please. Do you have 1739 in front of 15 you, Doctor? 17 A I do, sir, 16 Doctor, does Mr. Milam have problems in 1979 that 19 he associates with the exposure that took place in the 50 '50's? SI A There was a h i s t o r y o f p r o b l e m s w h i c h Mr. Milam 55 a s s o c i a t e d w i t h t h e , a c c o r d i n g t o t h B d o c t o r , a d i o x i n S3 e x p o s u r e . 54 Q Doctor, did he have problems like that in 1953? 147 1 in there pains bath legs since 1950 2,4,5-T incident? Doe9 a it say that, sir? 3 A That's the history he gave the doctor, yes, sir 4 Do b s it also say there's nervousness and 5 depression with violent overtones in the '5 0 's and 'BO's? S A Yss. But on page 10 he attributes it to niran. t 7 MR. CARR: jYour Honor, would you direct the B ii witness to answer my question. 9 THE COURT: Doctor -- 10 THE WITNESS: Yes, sir. 11 THE COURT: -- Just restrain yourself to ths limit 15 of the question, please, no further. 13 Q CBy Nr. Carr) Doctor, are these problems problems 14 that went away with time, or did he still have them 15 according to him in 1379? IB A The pains in the Ib q s , according tD him, have 17 persisted. 10 Is that a yes to my question, Dr. Suskind? 19 A For ths pains in the legs,.sir, yes. 20 And these problems did not clear with time then, 51 did they, sir? 22 A I believe that in Nr. Nilam's instance that 23 they -- 24 Q Doctor, would you answer my question? 148 1 A They did. They did. 2 Q They did clear with time? 3 A Yes. 4 Did you believs he was telling you the truth in 5 1979, Dr. Suskind? 6 A He said pains were not a problem at the present 7 time. 8 MR. CARR: K;Your Honor, would you direct the 9 witness to answer my question? 10 THE COURT: Doctor, please answer the question 11 that was asked you. IS THE WITNESS: Yes. 13 CBy Hr. Carr) Do you believe he was telling you 14 the truth in 1979, sir? 15 A Yes. 16 Q And he told you he had pains in both lege since 17 the 1950 2,4,5-T incident, did he not, sir? Did he not, IB sir? Doctor, if you look to pays 25, sir, 19 A Okay. SO 0 Ule've read it once or twice already. Doesn't he SI say, doesn't the doctor say from the history he's had pains sa in both legs since the 1950 2,4,5-T incident? S3 A Yes, he does, 24 Q Did you believe he was telling the truth then, 148 1 sir? a A 1 believed he was telling the truth, sir. 3 Q Then the problem did not go away with time, did 4 it, sir? 5 A By my judgment it did, since pain was not a 6 problem he said. 7 Doctor, you say because it is not a problem that B means it went away? _Is that uihat you're saying, Doctor? r S A Yes, I believe that the judgment on the part of 10 both the patient and the physician was that this was not a 11 problem, 12 Q Doctor, you are referring to page 23 when you say 13 not a problem, aren't you, sir? 14 A Right. 15 UJhat you'rereading there, back, painful after IB lying in bed, dash, not a problem at present? 17 A Right'. 18 Q Isn't that what you'rereading, sir? 13 A Right. 20 G Now did you believe I was asking you about whether 21 or not he had a- problem with his back being painful after 22 lying in bed, or did you believe that I was asking you about 23 the next entry, sir, aching pains in both legs worse with 24 exertion since early 1350's, parathesia on ventral surface 150 1 f thighs? Which do you believe 1 mas asking you about mhan a I mas asking you about the legs, Dr. Suskind? 3 A I bsliavBthat he mas referring to the pain in 4 general when.he talked about pain is no problem at the 5 present time. 6 Doctor, doss that not read in its entirety, back 7 painful after lying in bed, dash, not a problem at present? i B Isn't that mhat that says, sir? 9 A It also comes after aching pains in both legs. 10 Excuse ms, Doctor, mould you ansmer the question. 11 Your Honor, mould you direct the mitnsss to ansmer that 12 question. 13 A Yes, it doss. Yes, it does, 14 After the entry Df, quote, back painful after 15 lying in bed, not a problem at present, it states after 15 that, does it not, after that, doesn't it state, quote, 17 aching pains in both legs? Doesn't it say that, sir? IB A It does. 19 Q After that entry, morse with exertion since early eo 1950's, parathesia on ventral surface of thighs? Doesn't it 21 say that, sir? 22 A That's mhat it says, sir, 23 Q Does it say that the aching pain in both legs is 24 not a problem at present? 151 1 A I assume that's what -- 2 Q Excuse me, Doctor, does it say aching pain in both 3 lags not a problem at present, or does it say, quote, back 4 painful lying in bed, dash, not a problem at present, 5 period, end of quote? Doesn't it say that, Doctor? G A It comas right after that, sir, yes. 7 Q Doesn't it also say, sir, abnormal findings on a page 25, pains both legs since 1950 2,4.5-T incident? s Doesn't it also say on page 17 that he's had that problem 10 sines -- the musale pain since 2,4,5-T exposure? Doesn't hB u say all those things, sir? i le A From the history, from the summary of the history 13 that's what he says, sir. 14 Now, Doctor, his problems with his painful legs 15 did not go away, did they, sir? 16 A According to this history he indicated he still 17 had it. ie Is the answer to my question that his problems 19 with his painful lBgs did not go^away? Is that a yea, sir, 20 that the problems did not go away? 21 MR. HEINEMAN: Objection, asked and answered. 22 THE COURT: Overruled. 23 THE WITNESS: I believe I said he still had -- he 24 still complained that he had pain, i 152 1 Q CBy Hr. Carr} Doctor, that isn't what I 'm asking H you. My question is his problems with his pailnful legs did 3 not go away, did it, sir? 4 MR. HEINEMAN: Same objection. 5 THE WITNESS: According to the interpretation it 6 didn't, 7 THE COURT: Mr, Carr, is this a good point to Q break? 3 MR. CARR: Yes, your Honor, 10 THE COURT: Ladies and gentlemen, us will adjourn 11 at this1time. Aa I told you before, w e 're not having court 12 tomorrow. We will have -- we will start again Wednesday 13 morning at 3:30. I would remind you, as X do an any 14 overnight break, that you're not to read, listen to, or 15 watch anything about this case in particular or subject IB matter in general in any of the media, print or electronic. 17 Thank you for your attention and cooperation. Court is IB adjourned. IS 20 CCourt adjourned.) 21 22 53 24 153 1 STATE OF ILLINOIS ) e TWENTIETH JUDICIAL CIRCUIT ) 3 COUNTY OF ST. CLAIR ) 4 5 I, KATHLEEN UJATSON BRUNSMANN, ana of the Official B Court Reporters, do hereby certify that the foregoing 7 transcript is a true and correct copy of said transcript. 0 9 DATED: March 24, 1986. 10 11 12 13 KATHLEEN WATSON BRUNSMANN, RPR, CSR 14 Official Court Reporter 15 IB 17 10 19 20 21 22 23 24 /< 154 1 STATE OF ILLINO IS ) s TWENTIETH JUDICIAL CIRCUIT ) 3 COUNTY OF S T . CLAIR ) 4 5 I , RICHARD P. GOLDENHERSH, CIRCUIT JUDGE, do 6 hereby c e r t i f y t h a t the fo r e g o in g t r a n s c r i p t i s a t r u e and 7 co rrect copy of said tr a n s c r ip t. B 9 DATED: M a rch 2 4 , 19B6 10 11 12 RICHARD P . GOLDENHERSH, CIRCUIT JUDGE 13 14 15 16 17 IB 19 20 21 22 23 24