Document pp8wNQYe0nj79qrvV0RrZ5rQX

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA VADA POWER COMPANY, et al., Plaintiff - vs- ) CV-S-89-555-LDG (LRL) ) ''SANTO COMPANY, etc., et al . , ) ) Defendants. ) DEPOSITION OF GEORGE J. LEVINSKAS On the part of the Plaintiff 30(b)(6) July 14, 1993 Concannon & Jaeger ) General Court Reporters 705 Olive Street, Suite 604 St. Louis, Missouri 63101 (314) 421-1000 WATER PCB-00051978 COMPUTER AIDED TRANSCRIPTION IN THE UNITED STATES DISTRICT COURT DISTRICT OP NEVADA 3 NEVADA POWERCOMPANY, etc., ) ) 4) Plaintiff, ) 5 -VS- ) CV-S-89-555-LDG (LRL) 6 MONSANTOCOMPANY,etc., et al. , ) ) ) 7) ) 8 Defendants. ) 9 10 * * * 11 INDEX 12 WITNESS t Page: 13 GEORGE J. LEVINSKAS 14 Direct Examination by Mr. Bradley .................................. 4 15 EXHIBITS 16 30(b)(6) Deposition Exhibit #1,. .......... 4 17 Deposition Exhibit $ 517. ................................................................... 20 18 19 20 21 22 23 24 25 -2- CONCANNON 6 JAEGER WATER PCB-00051979 COMPUTER AIDED TRANSCRIPTION 1 IN THE UNITED STATES DISTRICT COURT DISTRICT OP NEVADA 2 NEVADA POWER COMPANY, etc.. ) 3) Plaintiff , ) 4) -VB- ) CV-S-89-555-LDG (LRL) 5) ) 6 MONSANTO COMPANY, etc., et al., ) > 7 Defendants. ) 8 30(b)(6) DEPOSITION OF WITNESS, to be used in an 9 action pending in the District Court of the United States, 10 for the District of Nevada, wherein NEVADA POWER COMPANY, 11 etc., is Plaintiff, and MONSANTO COMPANY, etc., et al. are 12 Defendants, pursuant to Notice, under the provisions of 13 Rule 26 of the Rules of Civil Procedure, taken on July 14, b 14 199^, at the law offices of Messrs. Husch & Eppenberger, 15 100 North Broadway, St. Louis, Missouri, before John T. 16 Concannon, a Notary Public within and for the State of 17 Missouri. 18 APPEARANCES 19 The Plaintiff was represented by Mr. Ralph A. Bradley, of the law firm of Bradley a Herrell, 700 Bank of 20 America Plaza, 300 South Fourth Street, Las Vegas, Nevada, 89101. 21 The Defendant, Monsanto Company, was represented by 22 Mr. Scott Bauer, of the law firm of Kirkland & Ellis, 1999 Broadway, Denver, Colorado, 80202. 23 The Defendant, Westinghouse Electric Corporation, 24 was represented by Mr. Robert P. Morgan, Westinghouse Electric Corporation, Gateway Center, Pittsburg, 25 Pennsylvania 15222. -3- CONCANNON & JAEGER WATER PCB-00051980 COMPUTER AIDED TRANSCRIPTION 1 Before commencement of the deposition, the reporter marked 2 Plaintiff's 30 (b)(6) Deposition Exhibit Number One, for 3 identification.) 4 GEORGE J. LEVINSKAS, 5 of lawful age, being first duly sworn to tell the truth, 6 the whole truth, and nothing but the truth, deposes and 7 says on behalf of the Plaintiff, as follows* 8 DIRECT EXAMINATION 9 QUESTIONS BY MR. BRADLEY* 10 Q. Dr. Levinskas, we've just completed your 11 personal deposition and you have been designated in part as 12 the Monsanto designee on a Federal Rule of Civil Procedure 13 30(b)(6) Notice. That is correct, is it not? 14 A. Yes. 15 Q. And I have had marked as Plaintiff's IBT 16 30(b)(6) Number One, the notice sent out by Nevada Power 17 seeking a 30(b)(6) deponent on those items listed on 18 Attachment A, and as I understand it, your attorney is 19 offering you not as a sole Monsanto designee to cover those 20 areas on Attachment A, but to cover some of those areas, 21 and I, at this point, I think it would be useful to have 22 your attorney designate for the record those areas that you 23 are being tendered as Monsanto's 30(b)(6) deponent. 24 MR. BAUER* This is Scott Bauer representing 25 Monsanto. I will do so. A slight caveat to what you just 4* CONCANNON fc JAEGER WATER PCB-00051981 COMPUTER AIDED TRANSCRIPTION 1 said. I think with respect to some of these topics, he 2 will be the only designee but with respect to most of the 3 topics, he's not. Specifically with respect to the last 4 topic, he's not a designee at all. 5 HR. BRADLEYi Okay* Go ahead and go through 6 it then. 7 MR. BAUERi I will go through them one-by-one. 8 There are eight topics listed on Attachment Aj there's no 9 numbers on them but I'm going from the start to the finish, 10 one through eight. The first topic, summarizing it, 11 Monsanto hiring Industrial BIO-TEST Laboratory in whatever 12 capacity to conduct research on Monsanto products. Dr* 13 Levinskas will be Monsanto's designated corporate 14 representative for that topic for the period starting in 15 July of 1971 and moving forward. With respect to topic 16 two, knowledge of any inaccuracy in reports of the conduct 17 of tests regarding PCB compounds produced by Monsanto, Dr. 18 Levinskas is being designated as a corporate 19 representative. He has knowledge about the investigation 20 he undertook with respect to that. At this time, I do not 21 know whether Monsanto had knowledge of inaccuracies, other 22 than the work Dr. Levinskas did, but if we identify other 23 knowledge of inaccuracies, we will have to designate 24 another corporate representative. Number three, knowledge 25 of conditions at IBT and reliability of studies conducted -5CONCANNON & JAEGER WATER PCB-00051982 COMPUTER AIDED TRANSCRIPTION 1 by IBT. Dr. Levinskas is, again, a corporate 2 representative, but because of the date of his employment 3 at Monsanto, again he can only cover the period from late 4 1971 forward. As I understand it. Dr. Levinskas is the 5 person most knowledgeable and therefore, is the only 6 corporate representative with respect to topic number four, 7 hiring of Industrial BIO-TEST employees after their 8 termination from Industrial BIO-TEST. With respect to 9 topic number five, Monsanto's discussions of proposed 10 experiments, experiments actually conducted. Dr. Levinskas 11 will, again, be a corporate representative for that topic 12 covering the period starting in 1974, which was when he was 13 involved in those efforts. 14 MR. BRADLEYi You had indicated to me that it 15 would be '74 to *75. Is my note incorrect? Will he cover 16 *74 on, or just '74 and *75 relative to topic five? 17 MR. BAUERi Well, I don't -- I'm not sure 18 that's not the same thing. I'm not sure there was any IBT 19 experiments, or proposed experiments, on PCBs after 1975, 20 so I think it's '74 forward. 21 MR. BRADLEYt All right. 22 MR. BAUERt In any case, you can ask him 23 questions from '74 forward and if we later find out there 24 are other things, we'll take care of that. Monsanto's 25 reviews of experiments conducted by IBT on Monsanto PCD -6CONCANNON & JAEGER WATER PCB-00051983 COMPUTER AIDED TRANSCRIPTION 1 products and their reports. Again, Dr. Levinskas is a 2 corporate representative designated on that topic for the 3 period from 1974 forward, especially including the work IBT 4 did in 1974 and 1975 and his review of that work. 5 Comparison of that work to work begun by other people and 6 Monsanto's hiring of other toxicologists to review all that 7 work together, and then also Dr. Levinskas* own review in 8 1981. So again, to my understanding, he will cover the 9 entire period from 1974 forward with respect to topic 10 number six. The same statement with respect to topic 11 number seven, communications between Monsanto and I6T, and 12 again, for the record, I'm summarizing, previously 13 summarizing all these topics which are in the Exhibit. He 14 is a corporate representative designated for the period 15 from 1974 forward. 16 MR. BRADLEY * And nothing on topic eight. 17 MR. BAUERs And nothing on topic eight. 18 MR. BRADLEYt Let's go off the record for a 19 moment. 20 (Whereupon, a short colloquy was held between Counsel, off 21 the record.) 22 Q. (By Mr. Bradley) Dr. Levinskas, as I 23 understand it, if I asked you all of the questions in your 24 30(b)(6) deposition that we're now conducting that I asked 25 you in your personal deposition, your answers would be the -7CONCANNON & JAEGER WATER PCB-00051984 COMPUTER AIDED TRANSCRIPTION 1 same; is that correct? 2 A. Yes, it is, 3 MR. BRADLEYt Let's go off the record for a 4 moment. 5 (Whereupon, a short colloquy was held between Counsel, off 6 the record.) 7 MR. BAUERt Por the record, with respect to 8 that last answer, we're not agreeing necessarily that all 9 the questions asked of Dr. Levinskas in his personal 10 deposition are coextensive with the topics for which he's 11 been designated as a corporate representative, but there is 12 a substantial overlap between the two and with respect to 13 the overlap, his answer is on the record, 14 Q. (By Mr. Bradley) And the purpose of 15 conducting the 30(b)(6) after the personal deposition is to 16 remove the requirement that the same questions be asked 17 again, so to the extent that ray prior questions don't 18 overlap, those questions will stand as questions posed to 19 this witness in this 30 (b)(6) deposition and the answers 20 given will stand as answers given in this 30(b)(6) 21 deposition. Is that correct, counselor? 22 MR* BAUERi You said to the extent they don't 23 overlap. To the extent they do overlap, I agree with that. 24 MR. BRADLEYt Yes. That's correct. 25 MR. BAUERi All right. -8CONCANNON ( JAEGER WATER PCB-00051985 COMPUTER AIDED TRANSCRIPTION 1 MR. MORGANt I take It all objections are on 2 the record as well, to the extent there were objections 3 made to questions in the personal deposition? 4 MR. BRADLEYi That's correct. 5 Q. (By Mr. Bradley) when Monsanto hired Dr. 6 Wright Cor the second tine in 1972, it knew that Dr. Wright 7 had been responsible Cor conducting tests on PCBs while he 8 was at IBT; is that correct? 9 A. There nay be individuals at Monsanto who were 10 aware of that. I, from my prospective, since I was 11 involved in his hiring, the only thought 1 gave was that he 12 had been at IBT; I was cognizant of the fact that Monsanto 13 was using IBT as a contract laboratory. I did not 14 particularly or specifically think of the specific products 15 he was involved with. 16 Q. And after Paul Wright became reemployed with 17 Monsanto in 1972, he continued to have contact with IBT 18 regarding their testing of Monsanto products; that's true, 19 isn't it? 20 A. I think I've indicated that we made an offer 21 to hire Paul to work with me on environmental assessments. 22 Because of the untimely death of Dr. Bunt, he was then put 23 into a relationship working back with IBT, but that was not 24 the premise or the intent when we hired him. 25 Q. How long had Dr. Wright worked at IBT before -9CONCANNON & JAEGER WATER PCB-00051986 COMPUTER AIDED TRANSCRIPTION 1 Monsanto rehired hint in 1972? 2 A. I do not know that. 3 Q. When Dr. Wright worked at IBT# he worked as a 4 toxicologist; is that correct? 5 A. Yes# I believe that was -- I don't know the 6 specific title# but he worked as a toxicologist. 7 Q, And when Dr. Wright was rehired by Monsanto in 8 1972# he was rehired as a toxicologist; isn't that true? 9 A. Yes. 10 Q. And it is also true thatafter Dr. Wright 11 became re-employed with Monsanto in 1972# that he took 12 trips to IBT to discuss their tests of Monsanto products; 13 that is true# isn't it? 14 A. That's correct. He assumedDr. Hunt's duties 15 and that was one of the things Dr. Hunt had been doing. 16 Q. And on these trips that Dr. Wright made to 17 IBT# Dr. Wright instructed secretaries at IBT to change the 18 wording in some of the reports that were generated by IBT 19 regarding Monsanto products; that's true# isn't it? 20 A. I have no knowledge of that. 21 Q. Monsanto also hired a gentleman named Manuel 22 Reyna, M-a-n-u-e-1# R-e-y-n-a# sometime during the 1970s; 23 isn't that true? 24 A. Yes. 25 Q. Manuel Reyna worked at IBT during part or all - 10 CONCANNON 4 JAEGER WATER PCB-00051987 COMPUTER AIDED TRANSCRIPTION - excuse me - during part of the 1970s; isn't that true? 2 A. Yes. 3 Q. And Manuel Reyna's work at XBT was also as a 4 toxicologist; isn't that true? 5 A. I do not know his title but he was working in 6 the toxicology area. 7 Q. And prior tobeinghired byMonsanto# Manuel 8 Reyna had been an IBT employee; isn't that true? 9 A. Yes. 10 Q. And prior to hiring Manuel Reyna# Monsanto 11 knew that Manuel Reyna# while at IBT# had been responsible 12 for some parts of the IBT testing of Monsanto products; 13 isn't that true? 14 A. I would give an answer to that similar to the 15 one earlier about Paul Wright. 1 don't know what Monsanto 16 knew. I was aware that Manny# as we called him# Reyna had 17 been at IBT and that he may well have worked on Monsanto 18 products. 19 Q. AfterMonsanto hired Dr. Wright in1972# how 20 frequently did Dr. Wright travel to IBT to discuss with 21 them the tests they were performing on Monsanto products? 22 A. I really could not give any estimate of how 23 often or how frequently he made the trips. 24 Q. Can you estimate it was more frequently than 25 once a month? - 11 CONCANNON & JAEGER WATER PCB-00051988 COMPUTER AIDED TRANSCRIPTION 1 A. I really -- The travel records# travel 2 vouchers # may exist to substantiate it but I really have no 3 basis for even speculating how often he went. 4 Q. I don't what you to speculate. Do you have 5 any basis of knowing whether it was more than once a year? 6 A. Oh# I'm sure it wsb more than once a year. 7 0. While Dc. Wright was employed at Monsanto 8 following his work at IBT# did he have any job 9 responsibilities regarding reports being prepared by IBT 10 regarding Monsanto products containing PCBs? 11 A. Dr. Wright would have been operating under the 12 situation that I described. He'd be asking for draft 13 reports when they came in. Depending on the urgency of the 14 study# availability of time# he or I would review them. He 15 may well have reviewed reports on PCBs if they arrived at 16 this time. I cannot specifically identify reports he 17 looked at or I looked at at that time. 18 Q. Did Dr. Wright# or anyone else at Monsanto, 19 request any changes in the wording of the reports being 20 generated by IBT regarding their testing of Monsanto 21 products containing PCBs? 22 A, I have indicated earlier# I think that it 23 would be my practice to perhaps request changes depending 24 on my review of the report. I would not be surprised if 25 others had done it. I have no specific knowledge of - 12 CONCANNON fc JAEGER WATER PCB-00051989 COMPUTER AIDED TRANSCRIPTION 1 instances when this was done* 2 Q. And if it was done and it was done by writing, 3 would you expect those letters or reports or writings to 4 have been maintained as part of Monsanto's business 5 records? 6 MR. BAUERt Object to the form of the 7 question. You may answer. 8 A. You use the term "business records." It was 9 my practice, and would be my practice, to document, or to 10 keep a file copy of such written correspondence, yes. 11 Q. (By Mr. Bradley) And you instructed the 12 toxicologists under your supervision to also keep copies of 13 that type of correspondence; isn't that true? 14 A. The secretaries were instructed to file copies 15 and they, to the best of my knowledge, they did. 16 Q, As part of your designation here, then, as a 17 30(b)(6) deponent, I want to know who and on what dates 18 people within Monsanto made requests to IBT to change 19 wording in the reports they were generating on the testing 20 they were conducting of Monsanto products containing PCBs. 21 MR. BAUER; In addition to what he's already 22 testified to? 23 MR. BRADLEY; In addition to what he's already 24 testified to. So at this point, we have a choice. We can 25 either stop the deposition while the witness goes over and - 13 CONCANNON 6 JAEGER WATER PCB-00051990 COMPUTER AIDED TRANSCRIPTION 1 reviews the records so that he can answer the question, or 2 we can handle it by having hiro return after he's had a 3 chance to review the records, or I'm open to any other 4 suggestions that you have. 5 MR. BAUER: Well, the problem with that is, 6 that assumes there are any others, other than the ones he 7 already testified about, which -- 8 MR. BRADLEYt Well, he's already indicated in 9 testimony that he would expect there to have been requests, 10 and he's said that he doesn't know whether, in fact, any 11 copies were kept of the requests. 12 MR. BAUERj Right, 13 MR. BRADLEY: But I'm certainly entitled to 14 know whether or not there is a way for him to answer my 15 question as Monsanto's 30(b)(6) designee. 16 MR. BAUER: Well, for the record, if documents 17 existed, other than the ones that have already been marked 18 in the depositions in the case, indicating changes in IET, 19 in the language of IBT reports for Monsanto PCB products, 20 other than the ones that have already been marked here, I 21 believe that they would have been provided to him already. 22 If I determine that there are such other reports, we will 23 have Dr. Levinskas appear again, or designate another 24 person with respect to those other changes. 25 MR. BRADLEY: All right. Thank you. - 14 CONCANNON 6 JAEGER WATER PCB-00051991 COMPUTER AIDED TRANSCRIPTION 1 MR* BAUER: Other changes during the time 2 period for which he has been deposed. We already have a 3 caveat that there would be another time period which would 4 have to be covered by a different witness, in any case. 5 MR. BRADLEY: The time period, as I understand 6 it, would be from '70/'71 forward for that particular item; 7 is that correct? Well, as a practical matter, our 8 Attachment A doesn't have a limitation by time. 9 MR. BAUER: Right. 10 MR. BRADLEY: And so you would tender Dr. 11 Levinskas if it covered an appropriate period of time, as 12 you've already indicated, relative to the eight subsections 13 in Attachment A? 14 MR* BAUER: Correct. 15 MR. BRADLEY: And you would have somebody else 16 appear if the time period was outside what you've 17 designated for Dr. Levinskas? 18 MR. BAUER: Correct. 19 MR. BRADLEY: Okay. 20 MR. BAUER: If we *-21 MR. BRADLEY: If you find anything. 22 MR. BAUER: If we become aware of other 23 documents fitting the category for the question which you 24 asked, I can tell you sitting here today, I'm not aware of 25 any. - 15 CONCANNON & JAEGER WATER PCB-00051992 COMPUTER AIDED TRANSCRIPTION X MR. BRADLEY: I also assume from your response 2 you will make inquiry to see whether or not those documents 3 do exist? 4 MR. BAUER: Yes. Well, my first inquiry will 5 be whether that search has already been done, and I believe 6 it has been, and I will confirm it has been done. If it 7 hasn't been done, we'll make such a search. 8 MR. BRADLEY: All right. 9 Q. {By Mr. Bradley) Dr. Levinskas, you've 10 already testified regarding the review you conducted in 11 '80/'81 of the IBT tests that bad been previously done 12 regarding PCB products? 13 A. Yes. 14 Q. Did anyone within Monsanto --* Let me back off 15 a moment. You also indicated in footnote six of the report 16 that you wrote that there were some databases missing and 17 that there may have been some inaccuracies in the prior 18 reports; is that a fair summary of what you indicated 19 previously? 20 A. I said there was - we could only get certain 21 databases. Now, whether they're missing or not, they were 22 not available. So I don't know their status, and that 23 where I saw some differences between the records I had and 24 what was in the reports, I tried to note those in the 25 review. - 16 CONCANNON & JAEGER WATER PCB-00051993 COMPUTER AIDED TRANSCRIPTION 1 Q. Okay. 2 A. That I prepared, yes. 3 Q And did anyone within Monsanto, asfar as you 4 know, conduct any investigation into why there were missing 5 databases or why there were some inaccuracies in either the 6 files of IBT or in the reports they wrote regarding the 7 tests they were conducting on PCBs? 8 MR. BAUER: Object to the form, 9 characterization of the files as missing, but you can 10 answer. 11 MR. BRADLEY: Hell, let me rephrase it. 12 0. (By Mr. Bradley) Did anyonewithinMonsanto 13 indicate to you that they had investigated the reasons for 14 any inaccuracy that you noted in your '80/'81 report? 15 A. I'm not aware that anybody attempted to make 16 an investigation of why the differences were in the reports 17 and the data. I'm not aware that anybody made that effort. 18 I made no such effort. 19 Q. And are you aware of anyone within Monsanto 20 conducting an investigation into why databases were missing 21 as identified in your *80/'81 report? 22 MR. BAUER: Same objection. Characterization 23 of the files as missing. 24 A. I would go back to answer -- As I've 25 indicated earlier, that at that time, IBT had ceased to - 17 CONCANNON 4 JAEGER WATER PCB-00051994 COMPUTER AIDED TRANSCRIPTION 1 exist as a functional operation. We made a request for 2 information. They sent us the information they could 3 locate. How thoroughly they looked* how effectively they 4 looked or such* I have no basis for speculating or 5 surmising why they sent us only that limited amounts of 6 information. 7 Q. (By Mr. Bradley) Did anyone within Monsanto 8 conduct an investigation into why the databases were 9 insufficient* as noted in your footnote six of your '80/'81 10 report? 11 A. I'm not aware that anybody did. I did not. 12 C. Did anyone within Monsanto attempt to locate 13 any databases that you considered Insufficient* as noted in 14 footnote six of your '80/'811 report? 15 A. What 1 describe in footnote six is the result 16 of our efforts to obtain the data. Paltry as they were* 17 those are the results of our effort. 18 MR. BRADLEYt Would you read my question back* 19 please? 20 (Whereupon* the reporter propounded the previous question.) 21 Q. (By Mr. Bradley) Did Monsanto contact anyone 22 within the United States Government to determine whether 23 any databases that you referred to in footnote six of your 24 '80/'81 report were within the possession of the United 25 States Government? - 18 CONCANNON & JAEGER WATER PCB-00051995 COMPUTER AIDED TRANSCRIPTION A. I'm not aware that such effort was made. I don't know who to contact for such a request. 3 0. Did you ask the attorney of the United States 4 Government who interviewed you in Chicago - 5 A. We did not -- 6 Q, - whether that person knew of any databases 7 that you considered insufficient as noted in footnote six 8 of your '80/81 report? 9 A. I did not. 10 Q. To which agency was the -- Let me rephrase 11 it. To which agency were the IBT reports sent? By "IBT 12 reports," I mean the ones you reviewed in '80/'81. 13 MR. BAUERs Well, I've got to object on 14 vagueness grounds to that question, in terms of when the 15 reports were being sent. I think it's unclear whether 16 you're asking what was sent in 1981 or whether the reports 17 he reviewed in *81, which are dated much earlier, were sent 13 earlier, but Dr. Levinskas, you can answer the question. 19 Q. (By Mr. Bradley) Are you looking for your 20 report? . 21 A. No. No* I thought there might be something 22 in here that would, in part, may be responsive to it. 23 Maybe not. 24 Q. For the record, would you identify what you're 25 reviewing? - 19 - CONCANNON & JAEGER WATER PCB-00051996 COMPUTER AIDED TRANSCRIPTION 1 A. I'm looking at the Plaintiffb Exhibit 517. 2 MR. BRADLEYt Okay. 3 A. I have not personally submitted any of the 4 reports that we're talking about to any regulatory agency. 5 I do know - I have heard and X assume that it was done - is 6 that these reporter before I came to Monsanto# had been 7 made available to FDA at its request. They had been sent 8 to EPA. Somewhere along the line# the impression I had# I 9 was told that they were given to several of the regulatory 10 agencies# which would include OSHA# Occupation and Safety 11 Health Administration# scientific agencies# such as the 12 National Institute of Occupational Safety and Health# 13 NIOSH, that they were discussed with members of Congress or 14 their staffs# but I was not a participant in those events 15 and I could not specifically say who they were sent to. 16 Q. Were the reports that you reviewed in '80/'81 17 written in 1971 or some other date? 18 A. They would have been written within a few 19 months of the dates on the reports. 20 Q. Well, -- 21 A. Which was '81. 22 Q. My question wasn'tclear then. Which reports 23 did you review in '80/'81? 24 A. I looked at thethreetwo-year ratfeeding 25 studies# which I think carry numbers something like 71-. - 20 - CONCANNON & JAEGER WATER PCB-00051997 COMPUTER AIDED TRANSCRIPTION 1 They were the *71 year, and the extension of those studies, 2 which includes the extra liver sections, which were 3 discussed in '75, That information and the, quote, "raw 4 data" from those studies is what I looked at to prepare my 5 1981 report, and that report was done within a matter of a 6 few months of the date on the cover sheet. 7 0. In footnote six of your *60/81 report, you 8 indicate that you reviewed necropsy reports. Did any of 9 those necropsy reports have the designation TBD next to 10 individual animals? 11 A. I think we've already made reference to that. 12 There may have been a few. I do not recall. If there were 13 substantial numbers, I would certainly have made a notation 14 or record, or might even have stopped there with my 15 assessments. 16 MR. BRADLEYt For purposes of this deposition. 17 Counsel, would you search the records to determine whether 10 the data that was reviewed by Dr. Levinskas to prepare his 19 *80/81 report is available and if it is available, if you 20 would provide it to us and then we can determine whether or 21 not we need to ask Dr. Levinskas some questions about it. 22 MR. BAUERj Well, I'll agree to make an 23 inquiry about whether that data still exists and if it 24 still exists, after confirming that it's responsive to the 25 discovery, I am not saying it's not, but I'm not saying I - 21 CONCANNON fc JAEGER WATER PCB-00051998 COMPUTER AIDED TRANSCRIPTION 1 know what all discovery requests are outstanding. If that 2 data exists and it hasn't been provided to you already, and 3 it is responsive, we would certainly provide it to you and 4 would discuss with you whether or not an additional 5 30(b)(6) deposition was appropriate after such a review. 6 MR* BRADLEYt The difficulty with your 7 response is that I don't think I need to fit it under a 8 request for production that pre-exists because I've asked a 9 question about information that he's indicated he'd have to 10 review certain documents in order to answer my question. 11 Then as a practical matter, either I have the deposition 12 stopped while he goes to review the documents, if they 13 still exist, or we reschedule him again later after he's 14 had a chance to review the documents if they exist, or you 15 simply provide them to us if they exist, and we determine 16 whether or not we need to continue his deposition. So I'm 17 going to first see whether we can accommodate one another, 18 and so I'm asking whether if, after you make an inquiry of 19 whether they exist, whether you will provide them to us? 20 MR. BAUER* I don't know. 21 MR. BRADLEY* Okay. Then I want the 22 deposition to cease while Dr. Levinskas goes to review 23 whatever records he needs to review to answer the question 24 that I posed to him, which is whether the necropsy reports 25 listed in Exhibit Six have the designation "TBD" anywhere. - 22 CONCANNON & JAEGER WATER PCB-00051999 COMPUTER AIDED TRANSCRIPTION Footnote six to his *80/81 report. MR. BAUER: And which of the 30(b)(6) topics is covered by the question which necropsy reports contain 4 the designation TBD? 5 MR. BRADLEY: Number two, when he talk6 about 6 his knowledge of inaccuracies in reports, and he indicated 7 that his knowledge of inaccuracies came through his review 8 of the documents provided to him, which resulted in the 9 preparation of his '80/'81 report and I'm entitled to 10 examine the inaccuracies, including anything that may have 11 a listing of TBD, which means too badly decomposed to be of 12 use. 13 MR. BAUER: That would be a fact, not an 14 inaccuracy. I am not agreeing that the designation TBD 15 constitutes an inaccuracy. You can terminate the 16 deposition if you desire. 17 MR. BRADLEY: It's over until I get an answer 18 to my question unless you're willing to simply provide me 19 with the documents if they exist. 20 MR. BAUER: I've already said -- You're going 21 to stay on this topic? If you want to ask any more 22 questions of Dr. Levinskas on any other topics, you're 23 welcome to. 24 MR. BRADLEY: I'll ask the questions after I 25 get an answer to that one. So I am considering this - 23 CONCANNON & JAEGER WATER PCB-00052000 COMPUTER AIDED TRANSCRIPTION 1 deposition to remain open until he* Dr. Levinskas* as 2 Monsanto's 30(b)(6) deponent on those topics* conducts a 3 sufficient review of the records within Monsanto to answer 4 my question. 5 MR. BAOERt Let's go off the record for a 6 second. 7 (Whereupon* a short colloquy was held between Counsel* off 8 the record.) 9 MR. BRADLEYi Back on the record. Counsel 10 and I have not been able to reach an agreement on 11 continuation of the deposition. I have posed a question to 12 this witness that I believe is covered by item two of 13 Attachment A. The witness has indicated he cannot answer 14 the question without a review of documents. I requested 15 that there be a review of the documents presently so that 16 the witness can answer the question* and I am requesting 17 that that occur now and that after the review takes place* 18 that we continue the deposition. 19 HR. MORGANi On behalf of Westinghouse* I'd 20 like to put on the record our objection to continuing this 21 deposition on the grounds that it subjects Westinghouse to 22 undue burden and expense to do so* and that it involves 23 travel of counsel from Pittsburgh* among other things* and 24 note as part of my objection the observation that I do not 25 detect anywhere on Attachment A to the Notice of Deposition - 24 CONCANNON 6 JAEGER WATER PCB-00052001 COMPUTER AIDED TRANSCRIPTION 1 an area of inquiry a& to the meaning of TBD, or to whether 2 or not TBD constitutes an inaccuracy in the report, test, 3 regarding PCB compounds and therefore, I see no obligation 4 on the part of Monsanto to produce a witness on the subject 5 of TBDs, or produce documents related thereto, to the 6 extent they have not already been requested, and so I would 7 request that the deposition be completed as scheduled and 8 not continued. i 9 HR. BAUER) On behalf of Monsanto, I would add 10 that the specific request made was to review any necropsy 11 reports for the designation of TBD to answer a question 12 about how many necropsy reports were viewed by Dr. 13 Levinskas in 1981 that had that designation* Be did not 14 recall the answer to that question. I agree that if 15 documents exist, documents still exist, that have that 16 information on it, that if the necropsy report still 17 exists, they would contain that information, but I do not 18 know at the present time whether those documents exist. I 19 have already offered to make an inquiry about whether those 20 documents exist and whether they are responsive to 21 requests, either with reBpect to this notice or with 22 respect to prior document requests, but it is my position 23 that the Attachment A to Plaintiff's 30(b)(6) Exhibit One, 24 from my readings of this today, it doeB not fairly request 25 that information and therefore, I am not willing to agree - 25 - CONCANNON 6 JAEGER WATER PCB-00052002 COMPUTER AIDED TRANSCRIPTION 1 that the deposition will be terminated, or will be 2 continued until that review is undertaken and for the 3 record, Dr. Levinskas has answered questions with respect 4 to 6ome but not all of the topics on which he had been 5 designated* It seems to me more reasonable to proceed with 6 the rest of the questions posed of Dr. Levinskas as the 7 30(b)(6) designee on behalf of all the rest of the topics 8 and reserve that dispute solely for potential resolution 9 later, and I offered that resolution to Mr* Bradley and he 10 did not accept it. Therefore, I believe it would be our 11 position that Dr* Levinskas, assuming that we do make an 12 inquiry and the documents do not exist, or we prevail in 13 our position that they're not responsive to Attachment A of 14 the 30(b)(6) Notice, that Plaintiff has failed to avail 15 itself fully of the opportunity that it has had to examine 16 him on the other topics, and we would not voluntarily 17 present Dr. Levinskas for the rest of the topics for which 18 Plaintiff could have asked the questions today* 19 MR* BRADLEYt All right* Whether my question 20 falls within the terms of the Attachment, let me represent 21 that in response to this 30(b)(6) deposition notice, 22 counsel for Monsanto indicated that Dr. Levinskas would be 23 testify regarding his '80/*61 report and Dr. LevinBkas 24 testified that he found some inaccuracies, which is 25 identified under item two of Attachment A, in prior reports - 26 CONCANNON & JAEGER WATER PCB-00052003 COMPUTER AIDED TRANSCRIPTION "V 1 of IBT regarding PCBs and in addition, he found databases 2 insufficient, and he identified in his report and footnote 3 six databases that were insufficient and he identified in 4 other parts of his reports certain inaccuracies and he 5 pointed them out in his deposition* He also indicated that 6 if there had been TBD designations in a sufficient number 7 that it would have, I think it's fair to say his testimony 8 was that if those designations had been sufficiently high, 9 it would have led him to reject the reports in there 10 entirety, which certainly is a support for concluding that 11 any TBD designations would have made the report inaccurate. 12 So it's my position that if Dr. Levinskas cannot identify 13 for me orally, today, the number of TBD designations that 14 were on the necropsy reports, then he has an obligation 15 under item two of Attachment A to seek that information 16 out, and I have not accepted counsel's offer to go forward 17 with the remainder of the deposition because I am entitled 18 to conduct a deposition as 1 see fit, and I have quizzed 19 the witness on an area that he already identified would 20 produce a report that was inaccurate and I'm entitled to an 21 answer to that at this point in time and I am entitled to 22 have the witness go seek out whatever reports or documents 23 exist that would enable him to answer my question. From 24 Nevada Power's point of view, this deposition remains open 25 until the witness makes the review and is able to respond - 27 CONCANNON & JAEGER WATER PCB-00052004 COMPUTER AIDED TRANSCRIPTION 1 to the question* 2 MR* MORGANj Off the record. 3 (Whereupon, a discussion was held between Counsel, off the 4 record.) 5 6 GEORGE J. LEVINSRAS 7 Subscribed and sworn to before me this 8 , A.D.. 19 3. day of 9 10 Notary Public 11 Notary Public within and for the State of Missouri. 12 MY COMMISSION EXPIRES THE DAY OF 13 14 A.D., 19 15 JOSEPHINE S. NIBLOCK NOTARY PUBLIC STATE OF MISSOURI 16 ST. LOUIS COUNTY MY CO1MISS10N EXP. JAN. 15.1903 17 18 19 20 21 22 23 24 25 - 28 - CONCANNON & JAEGER WATER PCB-00052005 COMPUTER AIDED TRANSCRIPTION 1 STATE OF MISSOURI ) ) SS 2 COUNTY OF ST. LOUIS ) 3 Ir John T. Concannon, a Notary Public within and for 4 the State of Missouri, duly commissioned, qualified and S authorized to administer oaths and to take and certify to 6 depositions, do hereby certify that pursuant to Notice in 7 the civil cause now pending and undetermined in the 8 District Court of the United states, within and for the 9 District of Nevada, entitled NEVADA POWER COMPANY, 10 Plaintiff, -vs* MONSANTO COMPANY, etc., et al., Defendants, 11 to be used in the trial of said cause in said Court, I was 12 attended at the lav offices of Messrs. Husch & Eppenberger, 13 100 North Broadway, in the City of St. Louis, State of 14 Missouri, by Ralph A. Bradley, attorney for the Plaintiff; 15 by Scott Bauer, attorney for the Defendant, Monsanto,; by 16 Robert P. Morgan, attorney for the Defendant, Westinghouse; 17 and by GEORGE J. LEVINSKAS, the witness, in said office on 18 July 14, 1993. 19 The said witness, GEORGE J. LEVINSKAS, being of 20 sound mind and being by me first carefully examined and 21 duly cautioned and sworn to testify the truth, the whole 22 truth and nothing but the truth in the case aforesaid, 23 thereupon testified as is shown in the foregoing 24 transcript, said testimony being by me reported in 25 shorthand and caused to be transcribed into typewriting, - 29 CONCANNON & JAEGER WATER PCB-00052006 COMPUTER AIDED TRANSCRIPTION 1 and that the foregoing pages correctly set out the 2 testimony of the aforementioned witness, GEORGE J. 3 LEVINSKAS, together with the questions propounded by 4 counsel and the remarks and objections of counsel thereto, 5 and is in all respects a full, true and complete transcr ipt 6 of the questions propounded to and the answers given by 7 said witness; and that said testimony, so transcribed, was 8 subscribed to by the witness on the day of 9 , A. D., 1993. 10 I FURTHER CERTIFY that I am not of counsel nor 11 attorney for any of the parties to said suit, nor related, 12 nor interested in any of the parties or their attorneys, 13 I FURTHER CERTIFY that Plaintiff Deposition Exhibits 14 marked for identification are the identical exhibits 15 referred to and identified by the witness in the foregoing 16 deposition. 17 WITNESS MY BAND and Notarial Seal, given this 23rd 18 day of September, A. D., 1993, at St. Louis, Missouri. 19 MY COMMISSION EXPIRES SEPTEMBER 12, 1994 20 21 22 JOHN T. CONCANNON, 23 Notary Public, within and for the State of Missouri 24 25 - 30 CONCANNON & JAEGER WATER PCB-00052007 COMPUTER AIDED TRANSCRIPTION 1 2 3 September 24* 1993 4 5 Dr. George J. Levinskas 6 526 Fairways Circle Creve Coeur* Missouri 63141 7 8 Ret Nevada Power -vMonsanto, et al. 9 Dear Dr* Levinskas* 10 This letter* incorporated as the last page of your 11 30(b)(6) deposition* taken on July 14* 1993* will serve as notice to you that your testimony is now ready for your 12 reading and signing of same. You will recall your attorney* Mr. Bauer* indicated a preference for you reading 13 your deposition* rather than waiving signature. 14 Mr* Bauer or his office will be in contact with you in the near future to read and sign you deposition. If you 15 have any questions* please contact him at his office* 16 Thank you for your cooperation in this regard. 17 Sincerely* 18 19 JOHN T. CONCANNON 20 Shorthand Reporter 21 22 23 JTC tmd 24 Concannon a Jaeger General Court Reporters 705 Olive Street Ste. 604 St* Louis* Missouri 63101 25 - 31 - CONCANNON & JAEGER WATER PCB-00052008