Document rbk9bd83aLK2rK3kBaDrgb1a

1 IN XHE IRCtJIT COURT TWENTIETH JUDICIAL CIRCUIT 0? ILLINOIS 2 ST. CLAIR COUNT? 3 4 FRANCES E. KEMNER, et al, ) ) 5 Plaintiffs, -) ) 6V ) CAUSE NO. 80-L-970 ) 7 MONSANTO COMPANY ) ) 8 Defendant .) 9 10 REPORT OF PROCEEDINGS 11 Before the HONORABLE RICHARD P. GOLDENHERSH 12 Testimony of Dr. Frank Poet 13 December 17, 19S5 14 15 16 APPEARANCES ? 17 MR. REX CARR, Attorney at Lav, and MR. JEROME SEIGFREID, Attorney .at Lav, 18 On behalf of the ?ladt,ntlfa; 19 MR. KENNETH HEINEMAN, Attorney at Lav, and MR. JOSEPH NASSIF, Attorney at Lav, 20 On behalf of the Defendant. 21 22 PATRICIA A. GANDY, CSR, RPR 23 Official Court Reporter 24 1- INDEX 2 WITNESSES: DR,, FRANK DOST 3 4 Redirect Examination by Hr. Belneman . 14 5 Recross Examination by Mr. C a r r ............ 90 6 7 EXHIBITS: 8 9 Defendant's No. 1326 10 Defendant's No. 1327 Marked 34 34 Offered Admitted 11 12 13 IN CHAMBERS CONFERENCES, Pages 2 and 52 14 15 16 17 18 19 20 21 22 23 24 2 1 BE IT REMEMBERED AND CERTIFIED, that heretofore, on 2 to-wit: December 17 1935, the matter as hereinbefore eet 3 forth came on for hearing before the Honorable Richard P. 4 Goldenhersh, Circuit Judge, and the following was had of 5 record, to-wit: 6 ****** 7 (The following proceedings were held In chambers.) 8 THE COURT: I have reviewed the documents, the pleadings 9 that were filed the other day and the reply and the arguments 10 that were made as well as the authorities cited* I am denying 11 the motion, except for those parts that are agreed upon,' and due 12 to the nature of this and the extent of It, In the exercise of 13 my discretion In denying It, I am going to submit a memorandum 14 which I hope I can give you tomorrow for the reasons, and make 15 those a matter of record. However, as a practical matter, I'm 16 taking care of these. I note that apparently there Is agreement 17 of counsel that certain matters can be testified to by 18 Dr* Kimbrough, certain business records of the CDC, some "factual 19 matters" In the question of her participation or non-partlclpation 20 as far as peer review of Plaintiff's Exhibit 1655. Based on the 21 past history on the track record of these things as to what 22 happens In the courtroom, I want to take a few minutes here, and 23 I mean literally a few, Investigating back here what In fact Is 24 going to happen If those matters go in front of the jury as far 3 1 as her testimony is concerned and the question of how long this 2 offer of proof would take, so I have some Idea of what to do with 3 this jury and when to bring them back, 4 I also want to find put what In fact these business 5 records are and what these factual matters are so that we 6 don't have to, five minutes into testimony, come back here and 7 fight for a half hour. I would rather do it beforehand rather 8 than in the middle of her testimony. And I also understand as 9 a practical matter she's been told by the people at CDC that she 10 can be here Wednesday and Thursday morning and that's It, Is 11 that correct? 12 MR. HEINEMAN: All I know about Is Wednesday. 13 THE COURT: Wednesday? Okay, Wednesday, period. So I 14 think the time to take care of these things would be today. And 15 normally I wouldn't do It during jury time, but I need to be 16 able to tell the jury when to come back Wednesday, If at all. 17 So since she's your witness, I suppose that the question ought 18 to be directed to you. What exactly are these business records 19 and what are these matters, and first of all, how long will your20 in view of my order, how long will your offer of proof take? 21 MR. HEINEMAN: I would say that the offer of proof would 22 take at least two hours. 23 THE COURT: Okay. It will take two hours? 24 MR. HEINEMAN: On my examination 4 1 MR. CARR: That's based upon the subject matter that 2 they've mentioned. I can't envision my cross examination taking 3 less than a day or tvo, because they are offering her. the proof 4 that they are offering will run the entire gamut of this lawsuit. 5 They're offering opinions on every issue that I know of that 6 others have already testified to In this case, health effects 7 on people, and X see no vay that I could allow an offer of proof 8 like this to go In without doing vhat I would do In ordinary cross 9 examination of a witness and all these issues. So it could be 10 that their offer will be meaningless, that the lady will not 11 say that which they represent, or I assume that she will say. 12 and It may be that I won't have to cross examine% at all. But 13 based on vhat Joe said last night. It was a very extensive shopping 14 list they had of topics that they were going to touch with this 15 lady. 16 THE COURT: Okay, next question. And of course there will 17 be redirect after that, depending upon what goes on In cross. 18 MR. HEIHEMAN: Yeah, i would expect so. 19 THE COURT: Okay, ne^t question. What are these business 20 records and how long will that take? 21 MR. HEIWEMAH: I haven't seen them all. and maybe Joe 22 will know better than 1 because he's reviewed them. 23 HR. KASSI?: I've seen them, but some of them we just 24 got which ve just got sent to us by her and we are producing vhat i 5 1 hadn't been produced, most of It had been produced already, we 2 had gotten through the EPA. But there were a few handwritten 3 notes that ve are producing today to Mr. Carr. It la not more 4 than a stack like this, but I can't think-- the only couple of 5 items that come directly to mind and what I'd like to do is get 6 back to you after the noon hour. He can be a little more expeditious 7 and more specific. Someone else is outlining that testimony while 8 I'm in Court, and it would be better if I got back to you right 9 after lunch and let you know the documents. Don't you think that 10 would be the best way to do. it? And we can check with the person 11 working In there. 12 THE COURT: And if you can bring those specific documents 13 and Mr. Carr can look at them and see how quickly this is going 14 to be. 15 MR. NASSIF: But it yould be more expeditious than me 16 trying to describe them to you. I might not even be right, 17 that's the crucial thing. 18 THE COURT: All right. Hhat factual matters are you 19 talking about, after we discuss what they are, how long will 20 those take? 21 MR. HEINEMANi Hell, ,,I'm .not sure, Judge, on the scope of 22 what the limitation is and what has been permitted In terms of, 23 see, I haven't read-- 24 THE COURT: Hell, the limitation is basically the only 6 1 parts chat were agreed upon, and because I'm denying, I'm 2 saying in effect lf,, that those other things that you want to 3 talk about or getting in by an expert by the back door, and,, 4 number two, In the exercise of my discretion, I am not allowing 5 you to call her as an expert. 6 In the Plaintiff's response to your motion, or objection 7 to the motion, there were certain matters In Paragraph 3 that 8 It was agreed there was no objection to her testifying to, and 9 under those circumstances. I'm trying to flush out what those 10 are so we have some idea of what we're doing, 11 MR. MASSIFt Gan we also ,provide you a little list of 12 the factual matters at the same time we give you the documents? 13 I think that that^ will be a.little more productive, too. I 14 didn't bring my papers with me. 15 THE COURTS Okay. And then while you're at It, If there 16 Is any amplification that needs to be made, any flushing out of 17 what this question of peer review status, on 1665, you can add 18 that in there also. Those were the three matters that were, 19 agreed upon according to the objection, and so that would be 20 the scope of your testimony under my ruling, and I need to know 21 what those are, and we have to resolve overall differences back 22 here first, both so that we don't waste our time in there, and 23 also so I know what to do with the jury. So we will meet right 24 after lunch and do that then 7 1 MR. NASSIFz That would be the fastest ay to do it. 2 We can work on It over lunch. 3 MR. CARR: Excuse me, Judge I'm sorry. 4 THE COURT: No, that'.s really all 1 had. 5 MR. CARR: The next witnee8 111 be this Kelly Odneal. 6 l fd like to make a motion In limine consistent with the objections 7 that we made to the past depositions, material that have been read 8 by defendants to date, ve do have an evidence deposition of 9 Mr. Odneal, and assuming that they are going to ask the same 10 questions or very nearly the same questions that they did. In 11 this deposition, I would like to move that they be prevented 12 from asking questions relating to whether or not the Sturgeon 13 High School or school was a winner of State tournaments or 14 play-offs or the number of games they won or lost in any given 15 year, or their athletic record In any given year as not being 16 material to any of the Issues In this case, would tend to 17 prejudice the jury and might tend to make the jury think that 18 the plaintiffs In this case who may have been on the team were 19 In excellent physical condition and that nothing was wrong . 20 with them simply because the team was a good team or the other 21 way around. I see no relevance, there would be no relevance if 22 It was the world's worst team. I don't think the plaintiffs 23 would be allowed to show the lose of record In the year In-order 24 to have any bearing on the health of one of the plaintiffs. 8 1 The other area that X would ask the Court U n i t would he the 2 questions that the Court has consistently prevented them from 3 asking, from reading Is did Tim Bovne ever claim to you of being 4 111 during the practice of any sport? Did Tim Bowne ever appear 5 to be 111? Did Tim Bowne ever clutch or grab his abdomen? 6 Questions of that sort which are asked throughout this deposition 7 X would object to, throughout the deposition, not Just with 8 Tim Bovne, but Doug Bowne and Tim Robinson and Greg Rush, Also 9 the questions about did their parents ever send any notes to 10 school, or did they hear from any physicians, the same questions 11 that we have previously objected to and the Court has previously 12 sustained objections* We would ask the Court limit the defendant 13 here with this witness to the same extent* 14 THE COURT: Has his evidence deposition been read yet? 15 HR* CARR: It has no^, 16 THE COURT: What's your reply to the motion In limine? 17 HR. HEIWEMAN: Well, ,,1 haven't heard the grounds for 18 the second aspect* The first one he stated It was Irrelevant, 19 the second one he^sald questions about complaints of Illness, 20 appearance of Illness, clutching or grabbing abdomen, parents 21 send notes to school end hear from physicians. Those were, the 22 Items that he listed. 23 HR* CARR: Same objection we made before in fifteen 24 depositions that have been gone through* 9 1 MR* HEINEMAN: E x c u s e m e i f I don't remember those 2 objections at the present tine since It has been quite a1while 3 since we have gone over those. What are the objections to those? 4 MR. CARR: Much of It was Immateriality, some of it was 5 ability to be a health expert to determine whether or not 6 somebody was or was not In 111 health. Much of It was it creates 7 an issue where there is no Issue, did the parent send a note. It 8 makes a suggestion that the parent should have sent a note. Did 9 he clutch hls stomach In pain? It suggests that perhaps he , 10 should have clutched hls stomach in pain, all that kind of 11 objection that we've made with the same kind of-~exactly the 12 same questions I might say. 13 MR. HEIMEMAti: Well, .your Honor, first of all, whether 14 or not the school team was a winner or the athletic record in 15 any particular year, we believe Is relevant In terms of the 16 contribution made by particular *plaintiffs to that effort, not 17 In and of Itself an Important matter, but the fact that;two of 18 these plaintiffs have participated actively in those athletic 19 endeavors and were very dedicated athletes, that's certainly 20 true of the baseball team. There were others that were Involved 21 in the basketball program and baseball, I am thinking of Mike 22 Burks and Tim Bowne, who were excellent athletes and whose 23 participation ini the program was .very instrumental In the success 24 of the team 10 1 The second aspect is .that-- and I an not sure of the extent 2 to which Mr* Carr Is saying, is requesting that this evidence be 3 limited-- 4 THE COURT: Well, I think you can figure out the extent 5 from the evidence deposition, because I think It is one of them 6 that we went through the last tine. We just didn't get to It 7 as far as reading. 8 MR. HEINEMAN: What t.hlB .witness is prepared to say has 9 to do with the fact that he was able to observe on a dally basis 10 each of the individual plaintiffs whom he will discuss, that he 11 observed them in the locker room stark naked, therefore could 12 see whether or not they had rashes, and observed them virtually 13 on a dally basis. 'He observed their demeanor, observed their-- 14 whether they were Irritable or not Irritable, whether they were 15 able physically to perform the very rigorous training and exercises 16 that he put them through, whether In fact they complained, some 17 of them have testified directly as to things they told him which 18 he is able to refute. Clearly that's relevant. 19 MR. CARR: It most certainly is, If you ask that question. 20 If you single out the person that-- and there's testimony In this 21 case that Tim Bowne said he complained to the coach so and so 22 and such and such a day, they had bad headache or bad stomach 23 ache. I think you have every right to ask the Court did:,'Tims 24 Bowne make such a statement, but that's not what I am objecting to. u 1 Ifm objecting to these general questions did he ever make a 2 complaint to yon of pain or did you ever see him having a,-;1 3 persistent or continuing cold? Did you observe his hands and 4 arms? Did you see blotches on his hands and arms? We've never 5 claimed that Tim Bovne had blotches on his hands and arms* 6 We never claimed that he had a-- oh I'm sorry Jerry reminds 7 me and I had forgotten that Tim did have a rash on his arms at 8 one time so that would be relevant and material, but It would 9 have to be things like that that would be relevant and material. 10 HR. HEINEMAN: Well, ,,clearly, Judge, It is relevant 11 considering the closeness of the relationship between Coach 12 Odneal and these athletes and the kids he had In hla physical 13 education classes day after day that he was able, first of all, 14 he was a person who had a confidential relationship with these 15 young people, he was a person who saw them virtually dally, a 16 person who was able to observe their behavior to whom they 17 complained when they had a complaint. 18 MR. CARR: Let me Interrupt. I am hot objecting to those 19 things that you described here. He can describe Tim Bowne as a 20 wonderful athlete, well-trained and like he is on Page 40, that 21 he did the sprinting with the rest of the athletes and did all 22 those things, that's not the point of my objection, Mr. Helneman. 23 MR. HEIHEMAN: Well, ,,what I am getting to is that lh 24 the course of his observations to that nature, If he Is able 12 1 to describe what an excellent athlete the young man Is, he is 2 also able to describe whether the young man ever complained to 3 him of having headaches, whether he ever complained to him of 4 having illnesses, whether the young man was absent from school, 5 the school records have certainly been relevant. 6 MR. CARR: We are not, quarreling with that, again, 7 you miss the point. 8 THE COURT: Okay, I think I've heard all this out of 9 the evidence depositions, Odneal has been one that, has been 10 gone through in chambers, ve just hadn't gotten to it in reading 11 in the courtroom. 12 MR. CARR: There's been other coaches that we have gone 13 through. 14 THE COURT: I thought his had been. 15 MR. CARR: But this particular one, I don't think we had. 16 MR. MASSIF: He wasn'.C on our list. Judge, as those 15. 17 THE COURT: My mistake. 1 am granting the motion in 18 limine to the same extent, and on the same basis and covering the 19 same things as my rulings have been in the-- golng through the 20 evidence depositions, I think they have been consistent, I 21 think they're fairly well delineated, ve have gone through about 22 12 or 15 depositions in preparation for that other day that ve 23 spent reading evidence depositions, and I don't think it is 24 really hard to divine what the limits are out of those and to* * 13 1 that extent I am granting the motion In limine and would expect 2 you to be governed accordingly. 3 HR. HEINEMAN: All right*. Nov* as X understand it what 4 Mr Carr is not objecting to is in the case of a particular 5 plaintiff when there's been evidence offered by the plaintiffs 6 with respect to this particular person* he had this* that and 7 the other thing* or he complained to Carnow of this* that or 8 the other thing* 9 MR* CARR: Ho* no* no, that he complained to the rash* if 10 he had a rash on his arm* I think it is permissible or proper 11 for you to ask did you ever see him with a rash on his arm 12 after having first shown that he had an opportunity to see it 13 during that particular point in time that he claimed he had a 14 rash on his arm* not at any time in general* but at that 15 particular time* He said the rash would come and go* and as 16 far as the other complaints are concerned* there had to be some 17 evidence that he complained to the coach about a particular problem 18 before you can ask him did-he ever complain. That makes a 19 suggestion* If you were here you remember that* that makes a 20 suggestion that he should have complained. 21 HR. HEINEMAN: Well* ,it seems obvious to me* Judge* 22 that rather than to the admissibility* It would certainly go to 23 the weight of the evidence* that if he was Indeed suffering from 24 these problems* that he would complain. ii 1 THE COURT: T'm going to.cut you off. All this has.-been 2 gone through a number of times on the arguments of these 3 depositions. I'll Incorporate both the arguments of defendants 4 and plaintiffs on It. It has been ruled on, I think I 'm right, 5 I think my rulings are consistent. I'm going to apply that policy 6 now, and X think It was accurately stated, so be governed accordingly 7 when you talk to your witness and Interrogate on the stand. We 8 will break now and start up at ten o'clock. 9 (The following proceedings were held In open Court.) 10 THE COURT: Good morning. 11 HR* CARR: Tour Honor;, we have no more questions of 12 Dr. Dost. 13 THE COURT: Mr. Heineman? 14 REDIRECT EXAMINATION 15 BY MR. HEINEMAN 16 Q Dr. Dost, with respect to this exhibit, this Plaintiff's 17 Exhibit 1646A here, sir, referring to the Poiger and Schlatter 18 exhibit which I think--do you still have that before you? 19 A No, sir, there are none of them left here. 20 Q Let me hand you again Plaintiff's Exhibit 1646, the 21 Poiger and Schlatter abstract. And again referring to 1646A, 22 what were the circumstances or the conditions, If any, under which 23 you would agree that the half life elimination from the body 24 was at least 4.95 years? 15 1 A It would have to be a situation In which there was no 2 TCDD reservoir-- two circumstances* one In which there is no 3 TCDD in the body prior to the administration of the labeled 4 material, and then no Intake of TCDD following that time. Then 5 It would provide-- the Information that was provided would provide 6 a reasonable estimate. 7 Q Now, why is that, sir? 8 A Well, because any material that comes In after the 9 administration of the labeled material will dilute it. In other 10 words, there will be a lover-- I hope I can make this understood. 11 What ye're dealing with here is TCDD In some physical amount, 12 105 nanograms. Then there Is a specific amount of radioactivity 13 In that TCDD, so there are actually.two things that can be 14 measured, the chemical Itself and the radioactivity that went 15 In with It. 16 Q Now, excuse me, the radioactivity, sir, is that 17 something that was added or naturally occurring? 18 That is something-- that TCDD molecule was used to label 19 Is synthesised for, specifically for the purpose. In other 20 words, and I believe that .I made some mention of this earlier 21 In other testimony, that organic chemists can synthesize TCDD 22 with radioactive hydrogen on the ring. 23 Q So radioactivity, would that have anything to do with 24 naturally occurring TCDD? 16 1 A. No sir It would not> no, air. The assumption Is, and 2 It Is very strongly supported, that when you use a labeled molecule 3 like this, It Isvery, very slightly different* The mass of 4 that hydrogen isthree Instead of one, as normal hydrogen would 5 be. Nonetheless, the molecule will behave In the body precisely 6 as an unlabeled molecule so that there Is from a biological 7 standpoint no difference between the labeled and the unlabeled 8 molecule. The difference is that the label enables one to 9 track the molecule. 10 Nov, there la a certain amount of radioactivity and a 11 certain amount of the chemical present. If additional TCDD Is 12 brought Into the body, and that apparently la a circumstance 13 with most of us, given that most of the fat biopsies have shown 14 that there is atleast some TCDD in our fat. If additional 15 TCDD comes in, then there would be a dilution effect and it 16 would tend, even though the material Is moving throughout the 17 body, It comes in and It Is being processed and It moves out at 18 some rate, It would tend to dilute the labeled material and it 19 would tend to stay In the body because it's being diluted more 20 and more and more. It Is like If you put--If you have a einkfull 21 of water and you put Ink Into it and you can see that It has a 22 blue color. If you pull the stopper, the water and the Ink all 23 go out at once. If you instead leave the stopper in and turn 24 one of the faucets on and the Ink and the water all go out through 17 1 the overflow, It tekeasa very long time to get rid of the blue 2 color, all right? The same thing occurs here if TCDD Is 3 entering the body after the label has been introduced. This la 4 vhy I vas concerned In my remarks yesterday about the specific 5 activity of the TCDD In the fat. They took fat biopsies, it would 6 be very important to know that the amount of radioactivity 7 relative to the amount of TCDD remained the same. That would 8 indicate that there was no additional TCDD coming Into this _- 9 individual. 10 On the other hand, if there vas a difference, then It 11 would be possible to construct a mathmatlcal model that would 12 account for this Influx and It would be a much more complex 13 process, but one could still obtain Information that would be 14 indicative of a half life. 15 Q What would be the effect on the calculation of a half 16 life of the dilution which you are describing? 17 A Well, It would make it seem longer* 18 Q , And why is that? 19 A Well, because the leveled material that's In the body Is 20 being continually diluted and It Is staying back, it la not 21 coming out, It is not coming out as rapidly* I would have to go 22 back to the analogy of the ink In the sink, where If there vas 23 no dilution with Incoming water, the ink and the water would leave 24 at the same rate If you pulled the plug, whereas If you left the 18 plug In and let It go out through th overflow* the sink continually 1 mixing with the Incoming water and the color becomes lighter and 2 lighter and lighter and lighter and lighter until eventually there 3 Is no Ink left. But at the same time you will have processed-- 4 there will have been a much larger amount of water going out* 5 6 but you have looked at the same amount of label* In this case* 7 Ink 8 Q All right. How* what do ve know* sir, In terms of 9 whether or not there is Incoming TCDD or an equilibrium* so to 10 speak* In the population as a whole? 11 A In the population a s a whole* It appears that there Is 12 an Incoming, that Is that there Is widespread low level exposure 13 to TCDDs, exposure In the sense that we are In contact with some 14 of the material and we take It up and dispose of It, so there Is 15 TCDD coming Into the body of a very large portion of the population* 16 certainly a large enough portion of the population to make It 17 necessary to learn that piece of Information In the subject* I 18 suspect that before this experiment Is through they will have 19 accomplished that. 20 Q How* what does the term "background level" have to do 21 with what you are describing? 22 A Background level Is the amount, is the level that we are 23 carrying with us on the average* If we used-- If ve use the term 24 both with respect to radioactivity, we all have a very, very small 19 1 amount of this kind of radioactivity because It occurs naturally 2 not as TCDD, but If you go out into tbe sea and take water or 3 into the Mississippi River and take water you will find a small 4 amount of hydrogen-3 tritium and we all have a little bit of 5 that In our bodies very, very small, but It la there nonetheless. 6 That's a background level, probably small enough that we don't 7 have to correct for It. 8 The TCDD that ve carry If It were to amount to five 9 parts per trillion In fat my recollection well If there Is 10 25 kilograms of fat In this amount of TCDD all went Into that 11 fat the concentration of this material would be four parts 12 per trillion. And that's really-- If It was a substance that 13 could be administered-- 14 Q By "this material", you are referring to this-- 15 A I am referring to the TCDD, the total TCDD unlabeled. 16 Q In this experiment? 17 A In this experiment, approximately a hundred nanogratas 18 if it went Into 25 kilograms of fat would be something on the 19 order of four parts per trillion in that fat. That Isn't a 20 large enough additional amount to make the body burden that's 21 already there or that may already be there negligible. You see 22 if it were an experiment with a compound that Is never found 23 In the body then none of this would need to be taken Into 24 account or If It was an experiment with a substance that la 20 1 found In low levels in the body but that we could glve,^let's 2 say, ten or fifty times more so that the amount already in the 3 body is just negligible. Again, the calculation would be very 4 very straightforward. 5 Q How, given what you have just explained with respect to 6 background level, what does that do to the accuracy of this 7 half life figure? 8 A If there was no additional material coming in, and if 9 the material'that was added mixed perfectly with all of the TCDD 10 that's in the body, then It would be an accurate representation 11 of what's happening to the TCDD. But It would depend on perfect 12 mixing, which Is really unlikely. It is hard to tell over X25 13 days, but TCDD as It comes in would more than likely preferentially 14 move toward the liver. How long it would take to clear the 15 liver and to go into equilibrium with all of the other TCDD in the 16 body,, in other words, become completely diluted in it, we would 17 be unable to tell the difference between TCDD that was already 18 there and TCDD that we have just brought In. I don't know how 19 long that would take, but until that has taken place and unless 20 there is no additional TCDD coming in, then those are the 21 conditions that it would take in order to be certain that this 22 is a reliable figure. 23 Q But if there is additional TCDD coming in, sir, and do 24 you have an opinion as to whether there would be? 21 1 A 1 think there would b,e because of the experience^ with 2 all of the samples that have been taken for determining TCDfi 3 levels in fat* most such samples have been found to contain 4 detectlble TCDD. 5 Q All right* How that being the case, what would that 6 fact do to the accuracy of this half life? 7 A Well it would make It-- it would make it too long. In 8 other words the apparent half life by this with this amount of 9 information is* would be longer than the true half life. 10 Q Longer than the-- 11 A True half time* 12 Q All right sir. Now, you talked about right at the end 13 of the day Hr. Carr was talking to you about dlatamateous earth 14 and bentonite, do you recall that? 15 A Yes 1 do. 16 Q Now what is the difference between dlatamateous earth 17 and bentonite? '18 A 1 made ah error when .1 characterised bentonite as 19 dlatamateous earth. They are both silicate compounds dlatamateous 20 earth la formed as the skeleton more or lass of one-celled 21 organisms that live in the sea and they settle to the bottom 22 and these deposits are eventually used and that's the material 23 that 1 kept in my laboratory as an adsorbent. Bentonite is 24 aluminum silicate and it la a substance that has a considerable 22 1 attraction for water and It swells when It Is hydrated when it 2 is brought Into contact with water. And that would make It as 3 It was described as a sealer and It would be a sealer It goes 4 Into the crevices and then swells. 5 Q To do what to the Interstitial spaces? 6 A Well it fills them. , It would fill them, occupy all 7 of the spaces. 8 Q All right, air. I'd .like to direct your attention again 9 to the Moses study which Mr. Carr asked you about. Defendant's 10 Exhibit 908. Let me hand to you, sir, Defendant's Exhibit 908. 11 And what Is the effect, In your opinion, of that study, the 12 Moses study at Nltro on the dose response principle? 13 A Well, I see no reason, no way that It does not conform 14 to a dose response relationship. It conforms, I think, very 15 clearly. 16 Q Mow, there vas a chart on Page 171 that Mr. Carr directed 17 your attention to, do you recall that, sir? 18 A Yes. 19 Q Wow, let's make sure that we are talking about the same 20 chart. Yes, that's the one. Now, the chart on Page 171, does 21 that chart reflect anything with respect to the dose response 22 principle? 23 A Well, It shows a very-- it shows a clear relationship 24 between, well, to begin with we have a description here of exposure 23 levels that are, I believe, based for this purpose on the recall l; i by the worker of the Job assignment that they had, keep In mind 2 that this study was done sotae years after the workers had been 3 working in this process. And there Is a clear relationship 4 between their recall of their job assignment and the expected 5 6 exposure to 2,4,5-T In that job assignment. There is a clear 7 relationship in terms of the chloracne incidence that was-- or, 8 excuse me-- a relationship between the people, the number of 9 people who had never had chloracne. In other words, where there 10 was no exposure, 97 percent of the people never had chloracne. 11 Minimal exposure, 64 percent. Moderate exposure, 49. Heavy 12 exposure, 24. In terms of chloracne, that makes very good 13 sense. There is a dose response with respect to current 14 chloracne, the people who were supposedly had heavy exposure 15 had 55, or,55 percent of them had chloracne. Those who had 16 moderate exposure, 24 percent, had chloracne. Minimal exposure, 17 16 percent, 3 percent in those who had no exposure at least in 18 terms of this definition of exposure. 19 Q Now, sir, why do you say "supposedly had exposure"? 20 A Well, because they are depending on information provided 21 by the workers as they described their job assignments when they 22 were working in the plant. 23 Q Now, I'd like to direct your attention if I may to Page 170 24 of the exhibit. Do you have It there, sir? 24 1 A Yes * 2 Q The first paragraph at the top of the page, what does 3 that paragraph describe, sir? 4 A Should I read it? 5 Q If you could Just tell us what it describes. 6 A Well, it says that they consider that chloracne is 7 generally considered to be a reliable indicator of heavy dioxin 8 exposure, so they decided as. they did this study, they decided 9 to use chloracne as a surrogate or rather as an Indicator for 10 exposure. In other words, they would use the status of these 11 individuals in terms of the presence or absence of chloracne 12 or the presence of chloracne In their history as a means of 13 saying either exposed or not exposed. And then they have a 14 parenthetical sentence here which says, "It is recognized that 15 those without chloracne but with appropriate work exposure 16 history might also have had TCDD exposure and were not therefore 17 unexposed controls." So they recognized that there is a little 18 bit of slippage In that definition that they use. 19 Q Now, do they-- docs that sentence conclude that they 20 were exposed, the last one you just read? 21 A No, it doesn't conclude that they were exposed. It 22 says that they might also have had TCDD exposure, they might have 23 had it 24 Q And those, are those ..people that have work exposure 25 1 history might have TCDD exposure? 2 A That*s their statement, yes. 3 Q Now, In light of that; paragraph, sir, does In your 4 opinion, does the Moses article disprove dr disregard or negate 5 In any way the dose response relationship? 6 A No, sir. 7 Q When Mr. Carr was discussing with you yesterday, sir, 8 this study and with reference to Dr* Carnow*s testimony, do you 9 recall that, sir? 10 A Yes. 11 0 Now, did you suggest,, did you ash something about needing 12 a general population for comparison? 13 A I recall something of that sort, yes. 14 Q All right. Would you explain to the jury what you 15 meant and why you made that suggestion? 16 A Well, If I were to see data such as Is reported here. It 17 would also be very useful to compare It with other people who 18 live in the same general area who do not have any exposure to 19 the work exposure In this plant. In other words, are these people, 20 are the people In the plant different from the people who live 21 five miles away, but live In the same general environment. In 22 other words, Is there something unique about the plant as veil as 23 la there possibly something unique about certain conditions in 24 the plant as distinguished from other conditions In the plant. 26 1 So it la really necessary la order to tell whether there la an 2 effect on the people In the plant In general It la necessary; 3 to compare them with If ve are talking about Nltro, It would 4 be very useful to compare them with people who live In the 5 Kanawha Valley but have no association with the plant or with 6 the chemical Industry, for that matter. 7 Q Nov, Dr. Dost, In such a connection, If you were to 8 observe certain effects among people moat heavily exposed and 9 there would not be statistical significant difference between 10 those and the people who were not heavily exposed, what would 11 that lead you to believe with respect to the dose response 12 relationship? 13 A Well, with that Information, I would have to conclude 14 that a threshold had not been reached with those conditions. 15 In other words, there was not sufficient exposure In either 16 group to be responsible for those, for those effects. 17 Q Now, If you find that among the people that are working 18 Inside the plant, what does that principle tell you with respect 19 to what you would find among a group outside the plant who had 20 never been Involved In the work environment at all? 21 A Well, this Information as It stands would not tell me 22 anything about that, but If I saw that the people outside the 23 plant had the same occurrence of these conditions, that Is that 24 these people were no different from the people on the outside, I 27 1 would have to conclude that there were no conditions in the 2 plant that were producing these effects. 3 Q And in that connection, sir, I'd like to direct your 4 attention to Page 178, and the second to the last paragraph on 5 the page, do you see that, sir? 6 A Tes 7 Q With respect to cardiovascular disease, what does that 8 information tell you? 9 A It says that, it speaks of the mortality study that was 10 conducted at the plant and it describes-- I*11 just read, "It was 11 stated as of 163 deaths in 884 workers at the plant from 1955 to 12 1977 a subgroup of 58 workers with 2,4,5-T exposure documented 13 by company records had a higher observed rate of coronary heart 14 disease mortality than expected from United States general 15 population," that's general population death rates. Nov, that 16 refers to statistics that arise from across the entire nation. 17 Although the difference was not statistically significant, 18 mortality from cardiovascular disease is known to be higher 19 than national rates in the Kanawha Valley of West Virginia 20 where the plant is located. And that's data that is referenced 21 from the study that they refer to is Zack, and I believe the 22 reference has been left out. The other, the Kanawha Valley 23 information is derived from the State of West Virginia Department 24 of Health study 28 1 Q And In connection with what ve have been talking about, 2 what doee that tell you with respect to the causation of heart 3 disease, cardiovascular disease? 4 A Well, there la something Intrinsic In that region that 5 results, and who knows what it might be., that there is something 6 characteristic of that region or the way the people live In the 7 region. I have no way of knowing what that characteristic might 8 be, that for some reason gives rise to a higher frequency of 9 cardiovascular disease In that general region. 10 Q Now, sir, If It Is nqt statistically significant within 11 the plant, and within the plant It Is about the same as It Is 12 In the Kanawha Valley, based upon the dose response relationship, 13 does that suggest to you that the people In the Kanawha Valley-- 14 HR. CARRi Objection,, your Honor, leading. 15 THE COURT: Objection sustained. Please rephrase It. 16 Q What does that suggest to you, sir, with respect to 17 whether or not the plant la causing the increase In cardiovascular 18 disease? 19 A Well, if the cardiovascular disease Incidence of the plant 20 workers la similar to that of people In the general area, one 21 would have to assume that the plant Is not a causative factor. 22 Q Why is that, sir? 23 A Well, because the *q-- if that comparison la In fact 24 the same, then whatever Is responsible for the Increased Incidence 29 1 in the region is affecting all of the people and if it is 2 affecting all of the people than it certainly isn't going' to 3 arise from the plant that most of the people are not associated 4 with or involved with. 5 Q Why is that? 6 A Well it is because of course X have no Idea what the 7 causes are but,the people in the plant and the people who are not 8 Involved with the plant have soma similar experience that is outside 9 the plant* 10 Q If you were to assume. elr that that similar experience 11 is exposure to what la in the plant would you expect the rates 12 of incidence to be the same inside and outsldef 13 A I'm not sure Z understand because the people outside 14 the plant that are not around the plant at all are not exposed 15 to material that the people inside the plant are* 16 Q Wow I'd like to han4 yon Plaintiff's Exhibit 1665. Hr. Carr17 do you recall Mr. Carr directed your attention to a couple of-- 18 A Tea sir. 19 Q excerpts from this?. Particularly Page 8-48. Bo you 20 recall that sirt 21 A Yes. 22 Q Nov do you recall Mr.Carr queatlonlng you about kidney 23 renal disorder! 24 A Yes 30 1 Q In connection with that? 2 A Tea* 3 Q Would you tell us what that portion that he read, that 4 you and he read together yesterday means and whether It has any 5 connection with the kidney renal disorder? 6 A As I recall, what we .read was, "After a six-month 7 recovery period, the porphyrin level In animals exposed to a 8 microgram per kilogram a week was still a hundred-fold higher 9 than values In the control group, A similar pattern was observed 10 for urinary excretion of uroporphyrin." What that means Is that 11 they were In this experiment measuring porphyrin levels In the 12 liver and they were measuring the excretion of porphyrin In the 13 urine and so whet they are saying la that porphyrin levels In 14 the liver are still high and that porphyrins, uroporphyrin, is 15 still being excreted at a high level through the kidney. 16 Q Does that have anything to do with kidney or renal 17 disorder, sir? 18 A No, air, it does not. The kidney Is functioning very 19 nicely If it will take care of that material. 20 Q Nov, what mammalian species are being referred tohere? 21 A This work was done in rats. ' 22 Q Now, sir, do you remember Mr. Carr questioning you about 23 the isomers, the tetra Isomers of dioxin? 24 A Tea 31 1 Q And particularly In connection vlth the Industrial 2 accidents, do you remember that, sir? 3 A Tea 4 Q And Seveso vas one tl&at he talked about. How, what is 5 the chemistry of the manufacture of 2,4,5-T? 6 A Well, It requires the formation of the 2 ,4-Trlchlorophenol, 7 which is made by hydrollxlng tetraehlorobensene, which means 8 taking off a chlorine and putting a hydroxyl group on. And then 9 the trlchlorophenol Is further processed to make the trlchloro-- the 10 2,4,5-Trlchlorophenoxyaceltlc acid 11 Q Now, maybe X misunderstood you, X thought you said 12 2,4*Trlchlorophenol. 13 A You make 2,4-Trichlorophenol-- 14 MR. CARR: 2,4,5. 15 A Thank you, sir 2,4,5-Trlctrlorophenol In this process by 16 taking a chlorine off a tetraehlorobensene and adding a hydroxyl. 17 Q Nov, with respect Co .Seveso, or Seveso, however you want 18 to pronounce it, vas chlorscne found? 19 A Yea, yes. 20 Q All right. Ara any tetra isomers of dioxin known to 21 cause chloracne other than 2,3,7,8? 22 A X don't believe so. K 23 Q Based upon the chemistry of 2,4,5-T manufacture, which-- la 24 there any particular isomer that would be expected of dioxin to be 32 1 formed? 2 A Oh, yes. 3 Q And what is that, sir,? 4 A It would be the 2,3,7,8 isomer* 5 Q Let me hand you Defendant's Exhibit 1148, which Mr. Carr 6 had asked you about yesterday. Mow, this document, air, if you 7 look at Page 1, first of all, I'm sure that the jury is likely 8 not to recall the number of this exhibit, what study is this, 9 11487 10 A This ie a report presented at a meeting in April of 1984 11 by Raymond Freeman and Jerry Sehroy, It is called "Environmental 12 Mobility of Dioxins". 13 Q And does it identify ,,the isomer of dioxin at Times 14 Beach, sir? 15 A Yes >. 16 Q And what is that, sir? 17 A It is the 2,3,7,8 isomer. 18 Q Now, I'd like to direct your attention to the questioning 19 that Mr, Carr did of you yesterday relating to the DDT versus 20 TCDD volatility question. Do you recall that? 21 A Tes. 22 Q And whether you used .a figure of one part per million 23 of dioxin in the 2,4,5*T, 24 A Tes, 33 1 Q Do you recall that sir? 2 A Yea I do. 3 Q Now, If In fact you were to uee a figure of 55 parts per 4 million of dioxin in 2,4,5-T, rather than one, would It make any 5 difference any appreciable difference In the comparison between 6 TCDD and DDT in terms of worldwide distribution? 7 A No, sir, X don't really think It would. 8 Q And why not sir? 9 A Well, the TCDD In 245-T is subject to photodegradatlon both 10 while It 1 accompanied by tl*e 2*45-T, and because 2,4,5-T 11 would be an effective proton donor ot hydrogen donor. But also 12 when It comes to rest on the surface of the soil plants and so 13 forth It continues to be subject to photodegradatlon end the 14 amounts that might remain Intact are going to reflect e vastly 15 lover quantity than the original contamination would suggest. 16 The one part per million that I used also was keeping in mind 17 the later history of 245-T In which the contamination levels 18 ran from a tenth of a part per million down to none detectlble 19 levels as well so whet X was trying to do was to pick a single 20 figure that would fell that would represent some median 21 concentration, 1 recognise that one pert per million Is much 22 less than 55 but there were very large amounts of material made 23 at the very low concentrations as well but It Is primarily 24 photodegradatlon of the TCDD that Is responsible plus the fact 3* 1 that TGDP, If volatility la really factor, la vastly less 2 volatile than DDT. 3 Q Now I 'd like to direct your attention next to the 4 questioning of you about lysol and Santophen whether there Is 5 dioxin in a lysol spray can* Do you remember that sir? 6 A Yes. ',, 7 Q And the discussion of Hr. Carr asking you about the lysol 8 being used in the nursery end that sort of thing. 9 A Yea. 10 Q And particularly the^spray can. Do you remember that? 11 A Yes. , 1 ' 12 (Defendant's Exhibit ,,1326 and 1327 were marked 13 for identlflcatlqn.) . 14 Q let me hand you what's been marked as Defendant's Exhibit 15 1326 sir. Would you identify that for me please? 16 A This Is s lysol brand disinfectant spray. It kills 17 household germs mold and mildew 360 uses* 18 Q All right* sir whatsis the active ingredient in that 19 material? 20 A It isortho-phenylphnnoX 1 percent. 21 Q Ortho-phenyXphenoI? ,, 22 A Yea. 23 Q I'd like you to assttate air that there is testimony in 24 the case that Santophen is actually orthobenso-para-chlorophenol 35 1 all right, air? 2 A Yea. 3 Q la there any Santophen or orthobenso-para-chlorophenol 4 In that package? 5 A Ho. This material on the label la not Santophen, la not 6 that product that you Identified, that chemical* 7 Q How, let me hand you .next what's been marked as Defendant's 8 Exhibit 1326* Would you Identify that for me, please, sir? 9 A Well, this Is a Lyaol brand disinfectant bathroom cleaner 10 for cleaning basins, tubs, tiles and so forth. 11 Q How, that's a spray of sorts, Is It not, sir? 12 A Yes, this is one of t;hese things that you foam on a 13 surface and leave it for a while, I think, yeah. 14 Q All right. How, what'e the active Ingredient In that 15 material? 16 A There are several quaternary compounds, quaternary 17 ammonium chlorides and a substance that Is a keletor, EDTA, which 18 Is a substance that will trap metal, atoms of metal. These are 19 quaternary ammoniums are a form of detergent* 20 Q Quaternary ammonium? ,, 21 A Yes. 22 Q I'd like you to assume, sir, that there's been testimony 23 in this ease that Lehn & Flak used another material in their 24 Lysol known as quats not made by Monsanto Company* Would you 36 1 assume that sir? 2 A Tes. 3 Q Ie there any relationship between that term and what you 4 have just referred to there as the active Ingredient? 5 A Well the quat la e slang tern for quaternary ammonium 6 compounds It le a very very general nickname. 7 Q Now based upon what ..you observed there sir would it 8 be accurate that to state that there Is dioxin In spray cans of 9 Ly.so.l being used all over the country in every household around 10 the country? 11 A Not In these products. 12 Q Nov pr. Boat you were-- 13 THE COURT: Before yo.tt get into another subject le 14 this a good point for a short break? 15 HR. HEIREMAN: Oh sqre ,,Judge. I didn't notice the 16 time. 17 THE COURT: Ladles and gentlemen we will take a short 18 recess at this time. I forgot to mention earlier, I vented to 19 apologise for ue starting so late this morning but It has 20 occurred many times before. There are matters that have to be 21 taken up outside the presence of the jury and we had one that took 22 up a little time. We will take a recase at thla time. Z would 23 remind you that you are not to discuss this matter among 24 yourselves or with anyone outside the jury panel or form any 37 1 conclusion or opinions about the matters on trial. The Court 2 is In a short recess* 3 (At this time Court,,waoin recess.) 4 BY MR. HEIMBHAN: 5 Q Dr. Dost ITd like to direct your attention to yesterday's 6 examination by Mr. Carr in connection with dioxin in the vapor 7 phase and the Schroy studies and that general subject matter 8 all right sir? First of all in connection with dioxin itself 9 2t378 TCDD, is that a solid material?: 10 A When it is In the pure form at room temperature it Is 11 in sort of a crystalline, form waxy crystals if I understand. 12 I have never seen It with my own eyes but that's how it is 13 described I believe. 14 Q Mow in the discussions Hr. Carr had vith you with respect 15 to it becoming a vapor going Into a vapor phase Z wonder if you 16 would explain to the jury what happens to molecules when they go 17 from a solid or a liquid phase into a vapor phase and whether the 18 molecule itself changes. 19 A The molecule doesn't ,,change the solid material is an 20 accumulation if you will of the molecules. And the reason 21 that It takes on this more or less crystalline form is because 22 the molecules tend to be aligned. They stack if you will when . 23 they are together. When they volatilise away and this Is true 24 of any substance when they-- we ere really talking about single 38 1 molecules that emerge Into the atmosphere If we Have nothing 2 else for them to attach to, so that they are single molecules 3 of In this case TCDD, just as there would be single molecules of 4 oxygen, which Is really two oxygen atoms bound together or nitrogen 5 In this room, two nitrogen atoms bound together. These are free, 6 separate molecules of the substance and they behave differently 7 only In the sense that they are free to move rather than being 8 tied up either In a solution or In the solid or liquid pure 9 material. 10 <J What are the factors ..that change the dioxin molecules 11 from a solid to a gaseous or vapor state? 12 & Well, there are a nutnber of factors, the tendency for.the 13 molecule to separate from the body of material that It's originally 14 part of, and as I have pointed out a number of times, all 15 substances have at least some tendency for molecules to 16 separate and go and diffuse away. Part of It depends on the 17 capacity of the medium Into which It Is being lost* Dioxin, 18 TCDD, Is very-- has very, very limited solubility in water, end 19 If you were to put solid TCDD Into water, only a very, very 20 small amount of it would go into solution. There aTe things that 21 we use around the household that don1! go Into solution very 22 easily, and you put too much into the water and only part of It v 23 would go Into solution, the rest of It wouldn't dissolve. The 24 same thing applies In the atmosphere. The atmosphere has the 39 1 capacity to hold only a certain amount of a volatile material, 2 and that amount varies depending on the substance* Too can just 3 get only so much water vapor into the atmosphere or so much, 4 gasoline vapor Into the atmosphere and beyond that It all 5 comes back down. In the case of water when we get more water 6 In the atmosphere than It can hold we get rain or fog. 7 Q Does the latter thing you've described have anything 8 to do with vapor pressure? 9 A That Is vapor pressure In essence. In other words 10 vapor pressure la the contribution that a gas can make to the 11 total atmospheric pressure. 12 Q Now does temperature have anything to do with this 13 phenomenon? 14 A Oh, yes. As the temperature increases, substances 15 have greater and greater ability to move Into the atmosphere. 16 Vapor pressure information la always specified In terms of the 17 temperature at which the measurement is made. 18 Q What Is the nature of the movement that goes on of these 19 molecules In terms of direction and speed and that sort of thing? 20 A Well they move at random. They move at random. They* 21 if nothing Is there to Interfere they can go In any direction 22 until they collide with something else. There is--a single molecule Is 23 not very Is not affected by gravity to a great extent. 24 Q Now, If you assume, air, I'd like you to assume the 40 1 following testimony fron Mr Schroy on the 12th of September . 2 Pages 6 and 7. "QUESTION: So the movement that you were talking 3 about in the vapor phase Is the material such as TCDD moving from 4 if you will, a dirt, small dirt particle, to a small dirt particle 5 through the air that's In between the two? ANSWER; Yes, because ' 6 you are going to have a partitioning to the next particle and 7 It will keep happening like that until eventually It works Its 8 way to the surface or works Its way down to where there Is an 9 even distribution through the whole soli column* Nature tries 10 to average everything and make everything the same. QUESTION: And 11 this is then the unsaturated, where air is between? ANSWER; That's 12 whet I depict here, because I label this "air". I could say 13 this was water, but Chen our model wouldn't fit. QUESTION: Nov, 14 that's the question I had. If there were water rather than air 15 between those dirt particles because you have gone out and 16 spread water or some other liquid that it saturated Into this, 17 there would then be the saturated type of core that you were 18 talking about? ANSWER: Like a rice patty. QUESTION: And your 19 model doesn't deal with the saturated core? ANSWER; No, ve 20 don't deal with movement In the fluid phase. If the fluid is 21 liquid. Not that ve can't, ve just haven't had the time to do it. 22 We are running experiments at Times Beach to try to get some 23 understanding of that.** 24 Now, if you assume that that's Mr. Schroy*s testimony, sir, 41 1 what i* he describing in terse of movement In relationship to 2 what you've jnst described to the jury? 3 A Well, he is really describing the sane thing, X think. 4 He la describing the random movement of individual solenles of 5 TCDD In which every direction they happen to aove, and until 6 they strike some other surface, 7 Q How, Is the vaporisation that Mr. Schroy Is describing 8 as X just read it to you, sir, is that like smoke going up a 9 hot chlmneyt 10 A Ho, sir, not at all., 11 Q What Is he describing In terms of movement of the TCDD 12 molecules? 13 A What he is describing Is, X used the word random, and X 14 would use it again, The random movement, the random direction 15 that a particle, e molecule of that sort would go In a space and 16 it can go in any direction, until It reaches another point where 17 it stops and eventually it will move again, Nov, the movement 18 of a given molecule is going to be random. It can go in any 19 direction. If there Is e higher concentration at one point, 20 then that movement would tend to be eventually away from that 21 point because until the limit exposed by the vapor pressure 22 is reached end that probably doesn't happen except in an experimental 23 situation, there will be a very slow movement of molecules away 24 from the area of high concentration, some will move back, of A2 1 course to the same substance Just as If water la probably 2 volatilizing away very slowly from the water In this cup* but 3 It Is also a lot of It Is returning Just because of that random 4 movement because water can be an Independent molecule as well 5 as a liquid that we see here. So the net movement the eventual 6 movement would be a very gradual movement away from the point 7 where the concentration la highest If the material Is burled 8 very very slowly it would by this random movement within the 9 soil very slowly would work Its way upward* But a given molecule 10 at any time when It aovee It will move In whichever direction 11 It moves In and there is no way of predicting It It la a l i a 12 question of probability. 13 Q How If we assume sir, that Hr* Schroy testified that 14 If TCDD Is In dirt and then clean dirt or clean ballast la placed 15 on top of It and that TCDD In order to volatilise would work 16 Its way through that dirt or ballast just like at Eglln would 17 you assume that sir? 18 A Tea. 19 Q That he testified to ,,that? 20 A Tes ^ 21 Q Nov was Eglln--wht material was being measured In the 22 Eglln experiments? 23 A TCDD 24 Q And in what material ,,was ,,it moving? 43 1 A Essentially a sandy very sandy soil la sand, say 2 Q All right* Nov sir, let ne hand you what's bean 3 previously marked and put in evidence as Plaintiff's Exhibit Ho. 4 1415* I wonder if you would .identify that for the jury please sir. 5 A It Is a paper titled,"Modeling the Transport of 2378 6 TCDD and Other Low Volatility Chemicals in Soils" Again It 7 la by Raymond Freeman and Jerry Schroy, and according to this was 8 presented at the I presume this is the American Institute of 9 Chemical Engineering national meeting in August of 1984* 10 Q How If I can directtyour attention to Page 11 of that 11 document sir where it says titled "Conclusions" do you see 12 that sir? 13 A Yes. 14 Q Nov If you look at Item number two there of the 15 Conclusions would you read that item aloud to th Jury please? 16 A It says "The rete of. TCDD movement is very slow. The 17 TOED in the Eglln Air Force Base biodegradation plots has moved 18 only about ten centimeters in twelve years." 19 Q Now sir is thst what you said? 20 A I think In essence that's whet I vss describing yes. 21 Q And If Mr. Schroy hag testified that the movement in 22 the Sturgeon ballast would be Ilka Eglln what would that lead 23 you to believe sir as to whether or not the-- any dioxin in 24 the soil below the ballast would emerge or would have emerged or 44 1 volatilized since 19797 2 A This would suggest that that would not have occurred 3 Q Hov long Is ten centimeters? 4 A Ten centimeters Is veil there is two and a half centimeters 5 per Inch so that's going to be about four Inches 6 Q Four inches? 7 A Yes 8 Q So it is moved four Inches in twelve years? 9 A Roughly that 9 yea 10 Q Nov, If you looh at Page,3f sir of that same exhibit 11 do you have It sir? 12 A Yes, sir, I do. ,,' t 13 Q What Is Hr Schroy, what are Mr Schroy and Dr. Freeman 14 discussing there, sir? 15 A They are discussing some experiments by someone named 16 llbertl* spelled with an I rather -than a Y. It was published, 17 It la a paper called "Solar and CV Photodecomposition of 2,37,8 18 TCDD, Tetrachlorodlbenao-p-dioxln in the Environment" published 19 In The Science of the Total Environment, and they were studying 20 the soil at Sevaso and they used vhat are called here deep tray 21 teats. I am not entirely certain vhat that described, but they 22 shoved TCDD losses from subsurface layers after exposure to the 23 sun Their explanation at that time, that is the explanation 24 of Libertl, et al, was that the loss was due to free-, radical 45 1 movement in the soil column. And Freeman and Schroy comment 2 that a more reasonable explanation Is due to the transport of 3 TC0D to the soil surface where It could be photochemlcally 4 destroyed or vaporized. 5 Q Row, what Is the relationship If any between photodegradation 6 and photochemical destruction? 7 A Well,, these are really synonymous terms. 8 Q Now, do you have Plaintiff's Exhibit 1143 before you 9 there, sir? 10 A Yes, X have, 1 have It. 11 Q And 1 wonder if you ^rould turn to Table 4 In that exhibit, 12 which is on Page 34. 13 A Yes, I have It here. r. 14 Q I'm sorry. It starts ,,on Page 33. 15 A Yes. 16 Q Hov, what is the-- what's the title of that table? What 17 are they showing there? 18 A The concentration profile of 2,3,7,8 TCDD measured In 19 three soil cores from Times Beach, Missouri. And what they did 20 'was to go down at, It appears a half Inch, and then perhaps inch 21 and a half, half inch and, yeah, I think inch and a half. It Is 22 In centimeters, anyway. The first core Is 1.27 centimeters. That's 23 a half. And the second is the same. And they went down:; a total 24 of 23 centimeters and took samples at different levels In each of 46 1 three spots. j 2 Q Sow, if ve take that first centimeter, sir, what is 3 being measured .specifically here, sir? 4 A 2,3,7,8. This is an .isomer specific measurement, 5 2,3,7,8 measured in the soil. 6 Q All right And if ypu look at the measurement of 2,3,7,8 7 In the first centimeter, in each of these cores, how much is 8 there? 9 A Of the three, the lowest is a little over 20 parts per 10 billion, and the highest, 34.6 parts per billion. 11 Q All right, sir. Now, and this measurement was taken 12 when? 13 A This measurement vaa .taken in 1983, yeah. 14 Q Now, do you recall Mf> Carr asking you about the conclusion 15 of Hr. Schoy In this document on Page 22, that over 90 percent 16 of the applied TCDD volatilised from the top one centimeter of soil 17 during the first summer? 18 A Yes. 19 Q Now, if the measurement in 1983 ware the same as it 20 had been during that first summer-- 21 A That was in 1973 when the material was applied. 22 Q Yes, sir. What would be, if 90 percent was gone In 23 the first summer, what would the original concentration in that 24 first eentlmeter of soil be? 47 1 A I don't know but it would be absolutely enormous. 2 It vould be veil up Into the parts per million. The material 3 it vae put on was between 100 and 300 parts per million this 4 was oil* this ves road oil applied to an unpaved street. 5 Q Well sir if you have 20 parts per billion and 6 that's ten percent of what's left* what would 100 percent be? 7 MR. CARR: 1 object your Honor. There is no showing 8 that this 20 parts per billion is ten percent of what's left. 9 THE COURT: Objection is .overruled. 10 A Excuse me could you .ask me the question again please? 11 Q All right. X might h&ve phrased that wrong* Let me 12 try that again. The 20.5 to 34.6 that were found In the top 13 centimeter that's parts per billion of 2,3,7,8 TCDD, correct? 14 A Tea. 15 Q All right. If 90 percent was gone in the first summer, 16 back in 1973 or 1974, what would the orginal concentration have 17 been? Could you Just multiply the 20.5 or divide it by-- 18 MR CARR: Object Leading. 19 THE COURT: Objection sustained. That Is leading. 20 You will have to rephrase that. 21 Q How vould you determine that, sir? 22 A Well, It would be very difficult. To begin with, that 23 estimate was made on the basis of a model, a mathmatleal model 24 constructed ten years after the material was applied. In other 48 1 words, this la not the result of a measurement made three months, 2 or whatever period It is, after the material was sprayed. The 3 model is derived from this Information In which they determined 4 a profile and then made some mathematical modeling projections 5 back to times zero, and then on the.basis of that model, In 6 other words, they undoubtedly drew a logarithmic curve that 7 started at a very, very high level and works its way down to the 8 values at the present time. Based on this whole, on this whole 9 profile. And given that the .material that was put on was 10 between 100 end 300 parts per millipn, and this is applied to a 11 surface, not mired in, I would suggest that the concentration of 12 that soil at the top would have had to be up in the, easily the 13 tens of parts per million. 1 don't know how, what the dilution 14 of the road oil In the soil might have been, but it had to be 15 substantial. 16 In other words, a good part of the surface was. constituted 17 of that oil, and so X would say just on the basis of that, that 18 the concentration had to be anywhere on the order of a thousand 19 times greater than this figure that is found ten years later In 20 that top layer. 21 Q Now, the 90 percent statement on Page 22, la that based 22 on' a measurement, sir? 23 A No, it is based on, it Is based on the model, on e mathmatlcal 24 model that was constructed. There were no direct measurements at 49 the time or-- there were no direct measurements during the ten-year 1 2 period after this material was applied. The first measurements of, that material were made In 1983, the materiel was applied In 3 1973, So what this Is Is a simulation model Undoubtedly did 4 5 It with a computer and arrived at a conclusion of how much was 6 there at the beginning and how much was there three months later 7 or whatever The initial slope of that curve la going to be 8 extremely steep the Initial disappearance is going to be very 9 fast and then It will .slow down. 10 Q How you used the term disappearance sir. What do 11 you mean by that? 12 Well we don't really know what happened to it* It 13 Isn't there and that's all that can really be said about it# 14 Dr* Schroy uses the term volatilisation but there Is no evidence 15 to say that it le or Is not* It Is gone* The material that 16 was applied Is no longer there or most of It* 17 Q Do you have an opinion as to what the most probabls 18 means of disappearance would be? 19 MR, CARR: Objection, your Honor. The witness has been 20 examined on this point. 21 THE COURT: It Is repetitious* Objection is sustained, 22 Q Now Dr. Dost If you. look at Rage 22 of this exhibit 23 1148 In Item No. 3 there dp you see that? 24 A Tea 50 1 Q Whet are the assumption based upon which this 90 2 percent figure is determined? 3 A Well, he made the measurement of this, concentration 4 profile and that is, I think, represented, yes, In Figure 4 which 5 Is a fairly typical frequency cuyve, ..I suppose you could call it. 6 He made an assumption about the initial concentration of TCDI> 7 at the time of application I don't remember what figure he 8 used, but he did not have direct information, he made an assumption 9 that I believe was based on the concentration that had been 10 measured in the material on a, both in tba-- one tank of that 11 residue that was measured by GDC where the concentration was 12 354 parts per million, and then a concentration of 114 parts 13 per million in an archive sample, that is a sample that had been 14 stored, end-15 Q Nov, what's the fourth word in Item 3 there? 16 A Are we on Page 22 17 Q Twenty-two, air. 18 A Simulation. 19 Q What does that mean? _ 20 A That means almost alifaya a mathmatlcal, a mathaatlcal 21 model that la constructed with whatever information la available, 22 and some assumptions that can be assumed reasonable, and that 23 Includes a variety of physical constants and so forth, and when 24 this Is ell put together, usually by computer, why, it gives you 51 Information about otber components, you know something that 1 happened today and you know enough characteristics of the system, 2 perhaps you can get your mod^l to tell you what probably was the 3 situation in this case ten years ago. 4 Q And the date of this paper, 1148, Is what, sir, on the 5 first page? 6 A The date Is 1984. This work was reported In a meeting 7 in April of 1984. 8 Q April, *847 9 10 A Yes. 11 Q And in that document* that's where the 90 percent 12 estimate appears? 13 A Yes. 14 Q In Plaintiff's Exhibit 1415, what's the date of that 15 paper? 16 A That paper Is August of 1984. 17 Q And In that paper, on Page 11, how does he describe-- 18 MR. CARR: Your Honor., this Is all leading, suggestive. 19 THE COURT: Objection sustained. Please rephrase it. 20 Q Does Mr. Schroy have a description of the movement of 21 TCDD? 22 A Yes, various conclusions. 23 Q And vhat Is that, sir? 24 A Is that the rate of movement is very slow, moves ten 52 1 centimeters in twelve years* And it says the transport of 2 TCDD In a soil column can he monitored by a temperature driven 3 dlffusion process. 4 Q How going back for a moment to 1148, Pago 22, Item 3A, 5 would you read that very brief paragraph to the jury aloud, please? 6 .A "TCDD will volatilise from soils most rapidly during 7 the summer months. TCDD will not volatilize from soils to any 8 appreciable extent during the winter." 9 THE COURT: Before you get Into questioning of that, ve 10 are at noon. Is this a good point to break? 11 HR. HEIHEHAHs Oh, all right, Judge. 12 THE COURT: We will break for lunch at this time. 13 Gentlemen, could I see you up at the bench for a minute, please? 14 (An off-the-record discussion was held 15 at the bench.) 16 THE COURT: Ladies and gentlemen, in order that you not 17 have to wait around so much, I'm going to ask that you come hack 18 from lunch today at 1:30 Instead of 1:15. We will adjourn at 19 this time for lunch. Be back at 1:30. The admonishments that I 20 have given you earlier will apply during lunch break also. The 21 Court is in recess. 22 (At this time Court recessed for the noon hour.) 23 (The following proceedings were held in chambers) 24 MR. CARR: On the fact situation that they have proposed. 53 1 everything Joe hse given se is relating to experts, opinions 2 actions of the CDC, and this expert category le not relevant 3 to the Issues in this case and there le nothing except what he's 4 given ste that we have agreed, to other than the question did she 5 review Plaintiff's Exhibit 1665 and the date which she did or did 6 not review it. 7 THE COURT: Do you hgve a list or something? 8 HR NASSIP: I gave him this list 9 THE COURT: Let me taka a look at it 1183 is what? 10 HR. NASSIF: It la an exhibit In the case your Honor 11 from the SPA Harry Gilmer of the SPA to another person In the 12 EFA which has the fact that he contacted several experts 13 including Dr. Kimbrough. 14 THE COURT: 1 remember now. ,,Thank you Okay I may have 15 cut you off Do you have anything aora that you want to say? 16 HR. CARR: I'd like to go, well X could go over each 17 individual item If the Court wanted* 18 THE COURT: No, we can xerox that and make It a part of 19 the record. 20 HR CARR: I don't understand. These are additional 21 documents that you want to gat in evidence? 22 MR. NASSIF: That's the response to the business records 23 MR. CARR: X thought.this was* Z don't have this, this 24 Is something different than what we were given. 54 1 HE. MASSIF: You ifirs given chose previously. If you 2 weren't* you have them, they're either Included in there or you 3 were given them previously. Between the two of them, you should 4 have every document. 5 HE. CARE: This is the first I've seen this* so I have 6 no Idea. 7 MR. NASSIF: I'm just telling you that you have those 8 before. They have C numbers on them. 9 UR. CARE: Yeah. w 10 MR. MASSIF: Those h%ve tjaan produced to you already. 11 MR. CARR: They may he, but I can't tell you whether 12 they are or are not business records that we would or would not 13 agree to or object to. I can't make any comment on this* Judge*. 14 I haven't looked at it. 15 TBS COURT: Okay* 1 guess you're handling this again? 16 MR. MASSIF: Yes* your Honor, I am. In terms of this 17 list, your Honor, Mr. Carr has objected to most of what's on 18 the list as being immaterial. I don't think It Is Immaterial, 19 your Honor* You've seen the list, would you like for me to go 20 down and tell you why Z think he tried them as material? 21 THE COURT: Hell, th^y are somewhat similar. Why 22 don't you make a general argument? 23 MR* HASSIFx The argument is we're asking basically, 24 your Honor, what did her review of Plaintiff's 1665 consist of, 55 1 not vhat ihe concluded, but when did you see the document. 2 Doctor Kimbrough, what were the circumstance* that you aav it 3 what draft did you eee, and whan did that taka place, and Mr. Carr v 4 has objected to anything but asking her the date and the time 5 that that took place. And wa think the clrcumataneea under which 6 she was Invited to the meeting and the circumstances under which 7 her review took place, where she wae. vhat that review consisted 8 of, we think those are Important ao the Jury gate the, you know, 9 the whole picture. If she says yee, I reviewed 1665 but It wasn't 10 In the form, and she is not allowed to say, but It wasn't in 11 this form and 1 never saw this final draft and I saw a much 12 earlier draft that didn't look anything like this-- 13 MR. CARR: I*m not objecting to that. You didn't tell 14 me that. 15 HR. MASSIF: You're not objecting to her aaylng 1 16 never saw this draft, it never looked anything like this? It 17 didn't have these pages In It, it didn't have this In It, you are 18 not objecting to thla? 19 MR. CARR: It goes w^th the question did she review 1665. 20 MR. MASSIF: I asked .her ,,what her review consleted of, 21 and I meant by that la like what draft did you look at, what 22 were the circumstances that you looked at It, what did they tell 23 you you were there to do in terms of thla draft document. Those 24 are the kinds of things X think wa ought to be able to go into. 56 1 I think ve also ought to be able to go into what he was told v- 2 about Sturgeon who contacted her what agencies contacted her 3 not anything as to what she told then, but to confirm that In 4 fact she was contacted by various agencies. 5 THE COURT: No one Is. disputing that. 6 HR. NASSIF: Some of .that la not In evidence the fact 7 that she was contacted by the Occupational Safety and Health 8 Administration is not in evidence. There Is no way we can get 9 that In unless ve call someone from OSHA, but the EFA parson 10 couldn't comment on the OSHA contact so that's not In evidence 11 at all. I think what It does your Honor It Is relevant on the 12 point that other agencies were Involved in the Sturgeon Incident 13 they were involved In reviewing the health effects of the Sturgeon 14 incident OSHA was Involved In reviewing It. There is some 15 question about the health of the railroad workers we have had 16 a railroad worker testify in this case X think the fact that 17 another agency is Involved In that review is important on the 18 Issue of whether the community was left to stew in the chemicals 19 as Hr. Carr has stated on several occasions and that's why I 20 think it Is relevant a n d .the fact that there's been no testimony 21 to date that OSHA looked Into the situation in terms of the railroad 22 workers. This is the only lady that can do that at this point 23 because we are not planning to have any other governmental witnesses 24 lined up 57 1 THE GOUETt Z know I'm breaking up your argument.but 2 what*8 your position on the relevancy?. 3 MR. CARR: There aren't $ny railroad workers in this 4 case your Honor and OSHA would be responsible for looking at 5 the exposure to the railroad work and not to the plaintiffs in 6 this case. It has absolutely no relevance whether OSBA was. or 7 was not involved. 8 MR. NASSIE: Your Honor .it has relevance as to level of 9 contaminants found in testimony extensive testimony. There has 10 been testimony by a railroad worker and what vent on In this ease. 11 Z think it Is relevant to the case. 12 MR. CARR: The railroad worker testified to what he saw 13 and did out there. 14 HR. MASSIFt Right. ,It goes to the issue of whatever 15 ImpresaIon the juryTs got regarding any health effect that he 16 might have suffered as a result of what he saw and what he did. 17 HR. CARR: Z wouldn't agree with that at all your Honor. 18 THE COURT: Anything ,,else you want to say? 19 MR. BASSIF: Yes your Honor. Why the one part per 20 billion calculation was entered Into has nothing to do with her 21 expert opinion. He're asking her why her agency why the CDC 22 prepared the one pert per billion calculation that has nothing 23 to do with an expert opinion on her part. It la ralevant to this 24 case the one part per billion standard has come up several times 58 1 in this case* and I think the jury's knowledge of vhy the GDC 2 prepared that le important for them to understand the relationship 3 of that one pert per billion figure and to the facta that they're 4 trying to assess* and 1 think her stating the agency's position 5 on vhy the one part per billion figure was reached doesn't involve 6 any expert testimony on her part. I think the fact that she did 7 certain actions In terms of previewing railroad worker blood 8 serum analysis also goes to the same issue that the people weren't 9 left* She also did this for residents of the town of Sturgeon* 10 at least one child* That also goes to the Issue of whether these 11 people were left to stew In their chemicals. They were not. There 12 was a follow-up from the agencies Involved through the CDC. I 13 think that also goes to the Issue of whether people were forced 14 to alt end atew on the chemicals. Her impressions of the levels 15 of dioxin as were told to her by the E?A goes to the very issue 16 of punitive damages* not what her expert opinion is* but what 17 aha was told were tha levels of dioxins there and the type of 18 dioxin present goes to the very issue of the punitive damages 19 because Mr* Carr has said ve have hidden or we hid or we did not 20 disclose what knowledge ve have of the possibility of 2 t3,7*8 21 being there and what position ahe heard and received from other 22 government agenclea goes to the issue of whether that Information 23 vaa in fact not disclosed or ihidden or whatever* but I think it 24 la important to get her testimony as to what type of dioxin was 39 1 there end the levels* 2 THE COURTt Are you saying her knowledge constitutes 3 notice? 4 HR* HASSIFs Yes it ..does constitute notice. 5 HR* GARRi Of what same other governmental agent told 6 her? Hearsay. 7 HR* NASSIFs Yea, it,,constitutes her knowledge is knowledge 8 of the government. She is a government employee, her knowledge 9 is knowledge of the government if the government knows and then 10 ve have disclosed that Is notice to the government. I mean 11 she is not some-~8he is a government employee* I mean that*a 12 what her job is. 13 THE COURTS There la ..no Argument about that. 14 HR* NASSIFi She is 4 government employee contacted about 15 this Incident by other government employees* 16 THE COURTS You are saying that conveyance of knowledge 17 to her constitutes proof that the world generally or the world 18 of expertise was put on notice and that Monsanto did not 19 fall to disclose? 20 HR* HASSIFi Yes exactly* It constitutes notice that 21 there was no failure to disclose .or 40 misrepresentation because 22 they in fact knew* the government in fact knew* and she is s 23 government employee* 24 THE COURT: I can't p.osslbly agree with that line of 60 1 lagle, but go bead. 2 HR NASSIFi 1 think vher .testimony regarding facts within r1 3 Defendant's 1193* the information contained in the documents dose 4 not require expert opinion on her part to say yes* X had that 5 conversation with Hr. Kleopfer and to the best of my knowledge 6 it was at the time that that document indicates* and X recall 7 that conversation and those are the questions that he asked 8 THE COURTS Is the e^lstqnce of her compensation an 9 Issue? 10 HR NASSIF: It Is oqly an issue in that Dr. Kleopfer was 11 not able to testify about .that document* 12 THE COURT: That's npt what I asked* Is the existence 13 of the conversation an issue? 14 HR* NASSIFi Perhaps ,,not .in our minds* but in the jury's 15 mind since no one has been able to testify that that conversation 16 took place* They sav the document and they read the document* 17 but there Is no one-that said yes* that conversation took place* 18 THE COURT: Then doesn'tfthat make It a non-issue then 19 If no one is disputing that it took place? 20 MR. NASSIFi It makes It ,,a non-issue in our mind* but 21 I am not sure that the Jury knows the conversation took place* 22 THE COURT: If it waq read to them and no one Is 23 disputing them* how could they not know it didn't take place? 24 tfhat reason would they have to think that it didn't? They should 61 1 know that It took place* But her testimony, are you raying that 2 ahe shouldn't have to testify on it because it is redundant? 3 THE COURT: X haven't reached any conclusions yet* I am 4 just asking you the questions about them in ay alnd, obviously. 5 HR* NAS SIF: Fair enough*. 6 THE COURT: And I will try to make them louder. I 'm 7 fighting off whatever is going around, too. 8 HR. HASSIF: We should be able to testify on actions 9 taken by the CDC regarding what sha has personal knowledge of 10 regarding Sturgeon* That's just factual step steps that they 11 took regarding Sturgeon once again on the issue that people were 12 not left to stew In a sea of chemicals* that actions were taken 13 by government agencies and not since your Honor says sha could 14 not do it on tha basis of any expert opinions* then what the 15 results of those actions she cannot perhaps testify on as you've 16 already ruled but the fact that actions were taken goes to the 17 issue of whether people were left to stew In the chemicals. 18 And there is one other* your Honor. One of those 19 actions would be whether or not this agency recommended an 20 evacuation of Sturgeon* and If they did have they ever recommended 21 en evacuation of any dioxin site* and I think that goes to the 22 laaue of once again actions taken and whether they were the 23 agency that recommended to the EFA that the town of Sturgeon 24 should be evacuated 62 THE COURT: Do you have anything you vent to say? 1 HR* CARR: Tee, your jaonqr, If I might have your Hot , 2 Joe, for a moment* Her awareness of the spill at Sturgeon has 3 got no materiality to anything, whether or. not the CDC got 4 contacts from various individuals or agencies, I don't think there 5 is any suggestion that Monsanto contacted CDC, is there? That 6 would he the only relevance to that* 7 The questions asked of CDC are not relevant, why CDC 8 was contacted would not be relevant, did the CDC prepare the one 9 10 part per billion calculation is not relevant, whether.or not 11 they reviewed the Sturgeon spill Is not relevant, her agreement 12 with the one part per billion is again not relevant and/or calling 13 for expert opinions* The review of data of analysis of railroad 14 workers, and they put in here and people at Sturgeon, all I've 15 got so far is that she reviewed the railroad workers* I don't 16 have anybody at Sturgeon, at least* 17 MR* MASSIF: That six-year-old girl that had the-- 18 MR* CARR: Veil, there was no data there, all there was 19 she got a report according to what you have given me, but anyway, 20 that would be calling for an expert opinion, certainly not a 21 factual matter* Her impression of levels of dioxin at Sturgeon 22 as to who told her is, it is immaterial as to who told her and 23 levels calls for an expert opinion, testimony as to 1193. Of course, 24 I think I already mentioned that the jury knows all those things 63 1 and there is no issue an to those contents therein, and that1a 2 all X have to say, your Honor 3 THE COURT: Now, s h e j u s t supposed to be here Wednesday, 4 right? 5 HR. NASSIP: Tea, your Honor. 6 MR. HEINEMAN: That'o my .understanding 7 THE COURT: Having looked at that list, vhlch I do want 8 to xerox and make a matter of record, because this argument in 9 chambers X think m*akes more sense on Che record and, I th'lnk, except 10 for the question of vhat she did as to that one Plaintiff's Exhibit 11 that vhat you stated that list is either Irrelevant and a non-issue 12 or mould involve expertise, probably both. In the delivery of that 13 matter on cross examination. And I think basically It constitutes 14 again a way of getting in expertise without calling an expert, 15 without calling someone an expert but calling them as an expert. 16 And I think the points and objections raised by the plaintiff are 17 veil taken. 18 X have been thinking .about this situation with the time 19 limit that w e 've got with her being here and the very limited 20 amount of vhat she would In fact testify to in front of this jury, 21 also vhat vould apparently be an extensive examination both direct 22 and cross on an offer of proof, and also the past history hers 23 of after various examinations outside the presence of the jury 24 some objections being dropped, and also the idea that an offer 64 1 of proof Is made to son extent in e position so the Judge cea 2 listen to what is being offered evaluate it and I am thinking 3 seriously shout having the offer of proof and when the offer of 4 proof is over whatever at that point in tine she should testify 5 to she would testify to. Otherwise we could have a situation 6 of testimony In front of a Jury offer of proof and then calling 7 her back again. And under the circumstances I think that we 8 might be best advised to spend Wednesday on an offer of proof. 9 At the end of that time aad apparently will go on beyond Wednesday 10 at the end of the offer of proof whenever that would be concluded, 11 we will have a determination-- be able to make a determination of 12 what in fact she would bs allowed to testify to in front of 13 this Jury other then the few minutes that would be Involved in 14 her review actions and, if any, with that one Plaintiff's Exhibit. 15 What's your position? 16 HR. CARR: That's flqa with me Judge. 17 THE COURT: X have h^d the practice before of a witness 18 leaves the stand by asking if there is any offer- of proof to 19 be made, and that's one of the reasons why both for the person 20 being there and whether the offer of proof is testimonial show 21 that if some part of it should ba testified to, the person would 22 be there, and I think this would be in accordance with that. 23 MR. WA681F: The only issue I have with that Is the 24 Jury will not be here tomorrow, from what you are indicating. 65 1 THE COURT: Right* That?. what t am Indicating* If yon 2 say It Is going to take tvo hour*, with onr great record on 3 estimating times. It is going to take tvo and a half or three* 4 If Hr* Carr says a day or tvo, it vill take at least tvo* 5 HR* CARR: I really don't* know hov much time It vlll 6 take, Judge. It depends on If they make an offer of proof on 7 all those points. I see no way they can get through. This Is 8 a thick list of documents here, an Interrogation of that alone would 9 take hours* 10 THE COURT: And apparently she la only allowed to be here 11 one day, anyway* It seems to me that-- it seems to me that, you 12 know, ve are talking for sure taking up all of Wednesday on an 13 offer of proof* 14 MR* NASSIF: Judge, In,the event that she could not 15 come back and parts of her testimony were deemed admissible In 16 front of the jury, would ve be able to read that part of her 17 testimony? 18 THE COURT: I would not want to rule on that until If 19 and when that came up* I really, I would not want to take a 20 position on that unless I had something solid In front of me 21 upon which I would be ruling* I don't want to be put in a 22 position of an advisory ruling. 23 MR* HEXHEMAH: Here is the situation that we are up 24 against* The government has agreed to make her available on this 66 1 one day* I've Just gotten a'note a'message that tells tae that 2 she has to be out of the courtroom by three o'clock tomorrow 3 afternoon to make a return plane to Atlanta and that's vhat 4 she's got. And it seems to me to be very unlikely that she Is 5 going to come back voluntarily. To that end. If there Is anything 6 that we can agree that she can testify namely this 1665 1 7 would appreciate the opportunity to have her do It now before 8 I mean I know that it would be Inconvenient to have the Jury 9 come in for a half an hour in the morning and that would be 10 Inconvenient. But the problem la, If we can at least get that In 11 then we will have the opportunity to do that. If ye don't do 12 that and we are stuck in an offer of proof situation we may 13 never be able to get her back. We may be in the spot that ve 14 are In with Kleopfer where ve started an offer of proof ve can't 15 finish It and Mr. Carr agreed that If he would not come back that .16 X could summarise It which is something I'm going to have to 17 do because I have been trying to get him to come back and he 18 won't* 19 So we are very likely going to be In the spot where 20 we're going to start the offer of proof, we're going to get part 21 of it done, she Is going to get up and leave and ve are not going 22 to be able to get her back. So my request to the Court Is ve be 23 permitted to at least let her testify first thing In the morning 24 on the things, the one thing, apparently depending upon how the 67 Court rules, that ve can agree to and then excuse the Jury end 1 then go Into the thing Because otherwise we will never get her 2 back to put that on I can see the handwriting on the wall, 3 that's been made pretty clear, she says she's leaving at three 4 THE COURT! Bo you have anything you want to say, Mr Carrf 5 HR. CARR: Well, I would .ay they have the right without 6 agreement from me or from the Court to put her on as a fact 7 witness to prove that one fact, If they want to, whether she did 8 or did not peer review that article without getting Into the 9 10 contents of It, and I can't object to It If they want to do It. 11 And If the Court wants to call the jury back for that short 12 period of time I think It la a misuse of the Jury time and it Is an imposition on them to bring them back for what has got 13 14 to be essentially a non-issue In this case* 1 don't think it 15 means two hoots In hell what aha did or did not do* She was on 16 the peer revlev panel, and apparently she is not going to say 17 she saw the last document. Nobody ever said she did* But If 18 they want to use up this time in that way, 1 personally will 19 not object to it. But I think the Court's Judgment Is correct, 20 but If they want to use that time in that way, It Is their nickel. 21 But It le the Court's time that ve are concerned with and the 22 Imposition on the Jury 23 HR* HEINEMAN: As I'vfca conceded to the Court, that Is 24 clearly, it la Inconvenient for the jury. There is no doubt about 63 1 that, and I concede that. To come In for an hour and then go 2 back hose, that la an inconvenience to then* But, on the other 3 side of the coin, I9m looking at the possibility that X will 4 never get her back, and If there Is anything I can prove with 5 her, X9d like to do It. 6 THE COURT: Well, let me .ask you something. If you 7 foresee her not getting back, and you have only got one day and 8 everything, how did you expect to cover all this to begin with? 9 HR, HEIHEMAH: My expectation was that I was going to be 10 able to put her on in two hours, that she would be crossed the 11 rest of the day, and that would be it, 12 HR, CARR: Hr.Helneman, .the list of things that you 13 gave us, that you were proffering her for as an expert witness 14 touches on every issue In this case. Row, what your other expert 15 toxicologists have said, and you have seen the cross examination 16 on these points have taken days with these people, and I submit 17 that you are not In good faith knowing that she could only give 18 us one day, you are not In good faith In offering her as an 19 expert witness In this case. 20 HR, HEIHEMAH: Well, ,1fa .sorry that you have that view, 21 HR, CARR: Well, that's just my feeling. 22 MR. HEIHEHAN: It grieves as, 23 HR, CARR: It grieves you? Tou are not crying, Kenneth, 24 MR, HEIHEMAH: I know. It grieves me that you feel that 69 1 way. But nevertheless, the fact of the matter Is that I think, 2 if I covered the whole gamut, that X could get her on and off 3 that stand In two hours* 4 THE COURT: There is ..no wT. 5 HR HEXNEMAS: That la with ay examination* 6 THE COURT: Ho, wa'rs going to spend whatever time we 7 have tomorrow as an offer of proof. If she has to leave at 8 three, then from three o'clock until five o'clock we will finish 9 up on these evidence depositions. X am.not going to do this in 10 a cart before the horse, backwards type thing* Ton proposed 11 all this stuff, we're going to cover it and w e 're going to do 12 It the right way, and that's the way it is going to be. 13 MR. NASSIF: Then, yqur Honor, we don't need to go over 14 these documents then at this point In time becauee we're just 15 going to have an offer of proof. 16 THE COURT: Tomorrow. 17 HR. HASSIF: Then we.^can^go over the document in the course 18 of the offer of proof. 19 THE COURT: Sure, absolutely. 20 MR. CARR: Okay. 21 HR. HEXHEHAH: How, with,,respect to the remainder of 22 today, I have no idea how long you plan to--wait a minute, I'm 23 not finished. I've got the witness, that's right. Vhat's the 24 matter with met 70 1 THE COURTt Are you 4one? 2 MR* HEIKEMAH: No, I nam not But we called, when X 3 got back to the office, X talked to Coach Odneal and he advised 4 me that he1 got to coach a ball game. Hie team is in a 5 basketball tournament and he has to go back, and it is a three 6 and a half hour drive, and he wished me a fond farewell* 7 THE COURT: Why don't you use his evidence deposition? 8 HR. CARR: You told 11s that already, Kenneth. 9 THE COURT: Well, yon hadn't told me. Why donTt you 10 Juat use his evidence deposition. We will clean that up and 11 ve will read 16 of them Instead of 15 of them* 12 HR. HEINEMAH: I don'`Vt knj,ow If X want to do that. X 13 may want to have him back later. We may end up doing that, 14 depending upon his willingness to come back. But I prefer to 15 have him in person If possible. What X was getting at le that 16 if Frank doesn't finish today-- if Frank does finish today, and 1 17 would think that he would, X don't have Odneal to put on afterwards. 18 And so what X was going to suggest, If it la all right with the 19 Court, is that at such time ve go ahead and let the Jury go and 20 start on the 15 depoa. 21 MR. CARR: No, we've ,,got ,four to read. Why lose that 22 jury time? We have some not read as yat. 23 THE COURT: We have f,our .to read, exactly. I forgot about 24 those. We had gone through them, but ve hadn't got to them that 71 1 day. 2 MR. CARR; Then when ,va get through with then, then we 3 can recess end let the Jury go and go do our work, but that's 4 some jury tine we can use. 5 THE COURT: Exactly, JZ forgot about those. Okay, we will 6 do It that way. Okay, very good.. 7 Oh, one other thing. , When Is she going to be here 8 tomorrow morning? 9 MR. BEIHEMAH: At st^rtlqg time. 10 THE COURT: Okay, at.^9:3Q? Fine, atart at 9:30. 11 (The following proceedings were held In 12 open Court.) v 13 THE COURT: Okay, ladles^and gentlemen, again 1 apologise 14 for your having to wait until we had some matters that had to 15 be taken up outside the presence of the members of the jury, and 16 It took a little longer than I anticipated It would. 17 And also, In keeping ,,with our policy of letting you 18 know days when we are not going to have Court, we are not going 19 to have Court tomorrow at all. There will be no Court for you 20 tomorrow. So If you would, after you're let loose today, If you 21 would come back Thursday at 9.:30, all right? Thursday at 9:30. 22 Mr. Helneman7 23 HR. HEIHEMAH: Tea, s,ir. , 24 Q Ur. Uost, let me direct your attention again to Defendant's 72 1 Exhibit 1148, Do you still have-that before you there, air? 2 A Yea, sir* 3 Q And it Is Page 22. You see Item 3A there sir? 4 A Yea. 5 Q I think vs had Just qtarted to look at that just before 6 we broke for lunch isn't that correct? 7 A I believe so. 8 Q And I wonder in thatvyary brief paragraph if you would 9 read that aloud to the jury. 10 A "TCDD will volatilize frqa soils most rapidly during the 11 summer months. TCDD will not'volatilise from soils to any 12 appreciable extent during the winter." 13 Q Thank you sir. And JZ would also like to ask you to 14 assume sir that Hr. Schroy testified to the following in 15 Court on September the 12th, 1985 on Page 107* ''QUESTION: It 16 still has the liquid In it but no longer in what we would 17 consider a liquid fora. It still has orthochlorophenol, all of 18 this soil still has the orthochlorophenol In It, would you assume 19 that, sir? ANSWER: If the voids are filled, then there Is no 20 gas space, so you can't vaporise. That's ay problem In terms of 21 liquid. QUESTION: Is whst you sre saying. Hr. Schroy, that If 22 the soil is saturated with OCP, orthochlorophenol crude, TCDD, It 23 says csn, Z assume It means can't, escape? ANSWER: Can't 24 volatilise. QUESTION: Can't volatilize? ANSWER: Yes, sir. 73 1 QUESTION: When the OCP Is cashed out end then that soil dries, 2 then can It volatilise? ANSWER: It can startB yes, sir 3 QUESTION: All right. So hut It doesn't do that to any great 4 degree In very cold weatherB does It, sir? ANSWER: No, sir 5 That's one thing the study that we have published shove that you 6 get a peak In the summer and it drops off to very lov levels in 7 cold weather. QUESTION: So It starts to do It then when the 8 vara aeasoa eoaea In the spring? ANSWER: Much faster when It 9 Is warm. QUESTION: So as fat ai Sturgeon Is concerned based 10 upon your studies If ve had cold weather In January and February 11 started varalng up In March April and May, that's when the 12 TCDD would start volatilising that's in this top layer of 13 soil? ANSWER: The rate vould increase probably about June 14 would be vhen It would really start causing problems when it 15 really starts to get hot." 16 Assume that's what he testified, sir. 17 A Yes. 18 Q Nov, sir, I'd like you further to assume that beginning 19 in January, 1979, all the material between the ties in the 20 main track was removed to a depth of six to eight inches below 21 the bottom of the ties as veil as all material betvaen the ends 22 of the passing track ties north of the rails. In addition, 23 assume that all material between the passing track ties was 24 removed to a depth of eight to ten Inches In the western 150 to 74 1 200 feet of the spill area where the surface of the snow and 2 the ballast of the passing track had been visibly discolored 3 by the spilled chemical I vent you to further assume that by 4 March 1 1979 4500 drums of material cribbed from, the track 5 had been removed from Sturgeon* Assume further that the cribbing 6 operation after the cribbing operation a ditch tvo and a half 7 feet vide and four feet deep vac dug between the passing track 8 and the main track from Ogden Street to the place where the tank 9 car came to rest* Assume that additionally that an undercutter 10 removed the ballest and earth between the main track to a depth 11 of 46 Inches la the 200 to 240 f^et of track where the most 12 chemical was spilled end to a depth of two feet for the rest of 13 ths main track* Assume that some dirt was removed from the 14 ditches around where the tank car came to rest* Assume that by 15 March 1 1979 2,855.3 cubic yards of soli had been removed from 16 Sturgeon and assume that throughout January and February the 17 weather was nearly always below freezing sometimes as low as 18 20 degrees below sero* Now sir based upon the matters that 19 I have asked you to assume and the testimony of Z>r*~-or Mr* Schroy 20 that I have asked you to assume do you have an opinion sir as 21 to whether by the time ths weather got warm there was any TCDD 22 In the top layer of ballast or soil In Sturgeon In order, to 23 volstillseT 24 A Tea 1 have an opinion 75 1 Q What le that opinion*, air? 2 A X believe that there,vould not be any TCDD In that sone 3 that vaa cleaned. 4 Q Nov, air, I'd like to ask you about, again, Defendant's 5 Exhibit 1148. Mr. Carr vaa asking you about Table 3, which Is 6 on Page 32. Do you see that, air? 7 A Tea, I see It. 8 Q And I'd also like yoq to.look at Table 2, which Is on 9 Page 31. Do yon see that, sir? 10 A Tea. ^ 11 Q Nov, Table 2, what la the information that la set forth 12 there according to the title? 13 A "TCCC Concentration In Air of Nash Microcosm Experiment." 14 Q And on Table 3, sir,^vhat Is the Information set forth 15 there according to the title? 16 A "TCDD Concentration in Air, Nash Field Plots." 17 Q Thank you, sir. And ,I'd like to direct your attention, 18 I'd like to direct your attention to Page 7 of the same exhibit, 19 sir. Do you see the first paragraph on that page? 20 A Tea. 21 Q X wonder if you would read aloud the statement in 22 quotation marks, well, just beginning the sentence before the 23 statement in quotation marks set forth there, do you see, . 24 beginning with "Nash"? 76 1 A Oh, yea. Nash observed that photodegradation was important 2 in his field teats. "If the |ir had been sampled only during the 3 daylight or if ve had continuous light, probably there would 4 have been little or no labeled TCDD trapped j 5 0 Now, vhat la that referring to, Table 2, Table 3, and 6 this paragraph, vhat le Hr. Schroy talking about here? 7 A He vas talking about ,mn experiment that vaa done by 8 an investigator, Ralph Hash, and a colleague, X think that van 9 In Hash and Beale, and they constructed vhat Is knovn as a 10 microcosm. That Is, It Is an ecosystem In a container, like a 11 terrarium perhaps, In vhlch all of the components are there. 12 They1 grew a crop In there. Tble Is a small vessel, but they 13 grow a crop. And In this case treated that area with an herbicide 14 called Sllvex, vhlch Is very much like 2,4,5-T, vhlch also is 15 contaminated with 2,3,7,8 TCDD. That's the data In, or part of 16 the data that thay obtained that's referred to In Tpble 2 And 17 then In Table 3 they conducted an experiment with a rather small 18 plot out on the ground, two plots, one of vhlch thay shaded with 19 a piece of plyvood, I guess. 20 Q Nov, vhat la the importance of the statement that you 21 read aloud with respect to the daylight and non-daylight? 22 A Well, they are recognising the fact that in the light 23 TCDD le degraded, subject to photodegradetlon. 24 Q Would you tall me, air, this microcosm that you have 77 1 described, It la Ilka a terrarium? 2 A Well in a way. It 1 dosed, it la a closed system. 3 It la la glass la the system that they are using here* the author 4 of that* of those researchers, set It up so that they were controlling 5 the flow of air through the system and trapping material that 6 was In the air aa It exited the chamber* It la a growth chamber, 7 In effect. 8 Q Does It have dirt ln.lt? 9 A It has dirt In It. It has plants in It. I think they 10 planted grass. If 1 remember correctly* It haa earthworms In 11 it, presumably the Important components of a small, they call It i 12 an agro-- mlcroagroecosyotam* 13 Q A what? 14 A A alcroagroeeoayatem^ 15 Q Okay. 16 A A little, tiny farm In a bottle. 17 Q All right* How then, how do they manage the air? 18 A They draw air in through the outside and run It through 19 a filter which they tested that will trap all of the herbicide . 20 and the TCDD, any TCDD that's In that atmosphere, so they are 21 running air through thla system all of the time. 22 Q How, how did the TCDD get Into that ayatea? 23 A TCDD was a contaminant In the herbicide. They used two. 24 If I remember correctly, they used tyo different products, one 78 1 which was contaminated to tha extant of 44 parte par billion, 2 X believe, and the other which wee contaminated to the extent of 3 seven and a half parts per willIon. 4 Q Tha first was what, ggain, sir? 5 A Forty-four parte per^bllllon* 6 Q And the second? 7 A Seven and a half part*; per million. 8 Q Now, In the system like this, would there be anything 9 Ilka wind? 10 A Well, there Is air movement through the system, yes. 11 I do not know the velocity of the air, 1 do not remember what the 12 flow rate was through that system, but there Is a continuous 13 exchange of air* 14 Q Now, would there be %n exchange of air comparable to 15 what you would find outdoors In a, for esanpla, along the 16 Sturgeon railroad right-of-way? 17 A I doubt if It Is that rapid* I've seen Information that 18 the average wind velocity In the Sturgeon aree is seven, around 19 seven miles an hour.* That's 11 kilometers an hour* And that 20 would be, I think, a much higher, much higher exchange rate 21 than was taking place in this system* 22 Q Now, let me ask you further to assume the following 23 testimony by Dr* Schroy, excuse me, Ur* Schroy* "QUESTIONS Sure, 24 and of course the closer you are to the ground, that la a child, if 79 It Is e vapor In tha air, the more likely that child la to Inhale 1 2 that particular vapor. Would that be a fair statement, children being smaller, ahortar than adults? ANSWER: Baaed on the 3 4 literature, I can't really agree vlth that. QUESTION: Well, 5 what la It you don't agraa w^tht, That children are not ahortar 6 than adults or that it ia not vapor In tha air? ANSWER: Dr. 7 Ralph Nash vrltaa that during the daytime that tha samples he's 8 collected In tha air would contain no TCDD. Tha only samples 9 that really contain TCDD vara those that were collected after 10 dark14 Would you accept that testimony from Dr.-- from Hr. Schroy? 11 1 want you to assume that ha testified to that. 12 A All right. 13 Q Nov, what la, what wore the Nash people able to find? 14 What did the Nash experiment find? 15 A Well, they found In.their trap they had, they used a labeled 16 TCDD. We've discussed tritium labeled TCDD, a radioactive 17 hydrogen,and they were able to trap the label In their system. 18 And now I'm not sure what you're asking me, what did they find? 19 Q What I am asking yout air, is did they find any TCDD in 20 the etmoaphere? 21 A Yes. 22 Q All right. Nov, vae that TCDD In the atmosphre In a 23 vapor state or was it on. a dust partiels, or can you toll? 24 A Well, X have no information that would tell me. 80 1 Q And in their experiments, sir, se the end of-- at one day, 2 how much TCDD did they find from the Sllvax? 3 A Wall, they did two experiment. The one that they did 4 vlth the high concentration Is here, and the other one with the 5 lov concentration, they found that had 44 part per billion 6 contamination, and they found la the air something on the order 7 of in the first few hours about 50 featagrams. A famtagram is a 8 thousandth of a picogran, which is a thousandth of a nanogram, 9 which is a thousandth of a microgran, et cetera. They found 10 about 50 femtagrams per cubic meter* 11 Q Do you recall what they found after a day, air? 12 A It was down on ths order of-- 13 HR* CARR: What's the, citation for this, counsel? 14 MR* HEIBEMAH: I would bo glad to have it marked. 15 MR. CARR: Ho, what'e the, citation? 16 MR. HEIHBMAHs It is ,,the ,,Bash study. 17 HR* CARR: Has it bean marked? 18 MR. HEINBMAH: I will be,,happy to do that. 19 MR. CARR: May we approach the bench, your Honor? 20 THE COURT: Sure. 21 (The following conference was held at the bench.) 22 MR. CARR: Counsel is, doing by trickery that which he 23 knows he is not allowed to do. This witness Is putting in facta 24 and data from a document that Is not in evidence, a document that 81 has not been supplied to us, and completely improper, and he 1 knows that he cannot do it this way* 2 MR. BEIHEHAHz Tour I|pno^.t this document has been supplied 3 to the Plaintiffa* 4 MR* CARR: Whether l^'s been supplied to us or not, I 5 6 would have to go back and researqh that* X don't think It has been, but the point Is that he knows he cannot get this facts 7 8 and data into evidence* He can cite the source, he cannot get 9 the facts and data Into evidence through this witness In this 10 fashion. 11 MR* HEINEMAN: Tour ^onor;, this Is not a matter which has 12 never come up before, this particular paper. This is a document 13 which has been quoted, discussed In the Schroy data, which la 14 a document that's In evidence. It Is a paper which Mr. Carr 15 has questioned Mr. Schroy about* 16 MR. CARR: I have not.. I have never had that document 17 In ay hand and I have never questioned Mr* Schroy about It* 18 THE COURTi That Is not In evidence, Is that correct? 19 MR. HBINEMAH: To my ,,knowledge, this particular paper 20 is not. 21 MR. CARR: It has never been marked, it has never been 22 referred to by me* 23 MR. HEINEMAN: It certainly has been referred to. 24 HR. CARR: Schroy ref,,erTe,,d to It and he cited In his 82 1 article* 2 THE COV&Ts Assuming ,,that It has been supplied to the 3 Plaintiffs' counsel, the objection Is sustained on the other 4 grounds of the objection, so we will deal accordingly with it* 5 HR* CARRi Hay I have a copy of It counsel? 6 MR. HEXMBMAH: Certainly * 7 (The following proceedings were held In 8 open Court.) 9 BY MR* HEIHEHAN: 10 Q Dr* Dost, I would Ilka you to assume that it has been 11 testified to In this case by Dr* Roush of Monsanto Coupany that 12 the. Center for Disease Control has established a dose which 13 compares to their one part per billion In soil of 44 plcbgrams, 14 44.6 plepgrems per day for & 70 kilogram man, all right, sir? 15 Bow does that figure compare to the data which appears In -v 16 Defendant's Exhibit 1148? 17 A Which, Table 2, Table 3? . 18 Q Table 2, sir* 19 A Okay, the Initial, In, the first day they sampled four times* 20 They sampled It sero times v|es the material had Just been placed 21 in there, a tenth of a day, four-tenths of a day, at the time the 22 material was introduced, and^thls is .Sllvex containing Seven and 23 a half parts per million of TCDD, the concentration that they 24 found in the air was 79,800 fdatagrams per cubic meter, which would 83 be 79 let's say 80 plcograms per cubic meter at the end of a 1 tenth of a day which la 2*4 hours concentration wee down to 2 about 15 plcograms per cubic meter* At the end of four-tenths 3 of a day, the concentration was down to 4*7 plcograms* At the 4 end of the day of the first day, It was down to 29 plcograms per 5 6 cubic meter, and then It steadily drops off at 200 days, It is 7 down to 16 femtagrams per cubic meter* 8 Q And that's in which experiment, sir? 9 A This Is an experiment. In which an herbicide containing 10 seven and a half parts per million of TCDD was placed on the 11 surface in that ecosystem. 12 Q Seven and a half parts permillion? 13 A Yes, sir* 14 Q And is this the microcosm now? 15 A This Is In the mlcroqoem* yes* 16 Q Nov, whan you read Table.3, you used a different term 17 In the title* 18 A This Is the experiment Is which they did, they vent out 19 on the ground, marked off a small plot, and placed the material 20 on the plot* 21 Q All right. And were ,their measurements there as well? 22 A Measurements there, yes. 23 Q I'm sorry? 24 A Excuse me, I was anticipating your question. 64 1 Q And what TCDD did they find there, according to this 2 exhibit? 3 A Well, on the first day they found 270 femtagraaa per 4 cubic meter. And on the second day, 516* And then that was 5 in the shaded plot In the non-Shaded plot, 620 fentagraas per 6 cubic meter and 180 per cubic aeter on the second day That's 7 out in the open 8 Q Nov, how do those leyals ..compare to the 446 plcograas 9 that I mentioned to you before? 10 A Well, the 270 femtagtams.would be .27 plcograas per cubic 11 meter 12 Q 86 how many tlaes less would that be? 13 A Well, that would be,flat's take a higher one Thin Is 14 one at 560, one at 620, one at 180, at 27 it would be 44.6 15 divided by .27, which Is going to be what? Probably 150, 165 16 In the case of the highest value they found on the non-shaded plot, 17 62 plcograms, the difference would be 72. In other words, that 18 Is the amount per cubic meter compared-- 19 Q Nov, if you were to assume that a.human being inhaled 20 the TCDD from the highest one in the field plot, for example, 620 21 femtagrams per cubic meter, what would be the dose that one would 22 get from that? 23 A Well, it would be expected that an individual, If an 24 Individual Is working in that area, their dally, their work day 85 1 respiratory ventilation vouldv* be --something on the order of ten 2 cubic meters, so that would mean a dose of 6 ,2 plcograms, which 3 would be about one-seventh of the 1.46 picogram per day for a 4 70 kilogram person that you referenced 5 Q Now, sir, you have been to Sturgeon, have you? 6 A, Yes, I have, 7 Q. Are the Sturgeon railroad tracks In a shaded or an unshaded 8 area? 9 A. They are really out the open. There are a few 10 trees nearby, but I don't think that you could say that the area 11 Is shaded at all. 12 Q Now, 6.2 plcograms, qov, If that were inhaled by somebody 13 every day, how much of that doae vould actually get Into the body? 14 A Probably about 30 percent, 15 Q And what do you base,,that on, sir? 16 A Veil, I wouldn't expect it to get very far down the 17 respiratory tract. It would, particularly if It was attached to 18 dust particles, It would probably, be moved upward, and then 19 swallowed and mixed with the contents of the digestive tract, so 20 30 percent Is the figure that 1 recall that Is used In the CPC 21 estimates as an estimate of the tract of TCDD that would be 22 absorbed from the digestive tract, 23 0 Now, I'd like you to^assume further, air, that Dr. Roush 24 testified that the TCDD-- that's 44.6 plcograms per man was a 86 1 dally dose from Che CDC, all. right, s'lr? 2 A Yes* 3 Q How, In this instancy, using this 620 figure, 30 percent, 4 what would be the dally dose from Inhaling that? The highest 5 amount In the field plot? 6 A Veil, the dally dose.would be something on the order of 7 two pleograms per day, assuming that absorption rate that 1 8 already spoke to, 9 Q Now, and that two plqograms a day Is based on what 10 concentration, sir? Applied to the soil. 11 A I do not-- 12 Q Look at Page 7, sir, .of the exhibit, the field site. 13 A In that particular case, they used a Sllvex that was 14 actually spiked with additional TCDD to the extent of 15 parts 15 per million. 16 Q All right. So they ^sed the Sllvex with 15 parts per 17 million? 18 A Yes, they added TCDD,,to it. 19 Q Nov, If you were to assume, sir, that the soil had 3.1 20 parts per billion of dioxin In It rather than 15 parts par million 21 on the surface, could you calculate what that air concentration 22 might be If all the other circumstances were the same? 23 A X don't know, because-- w e 1 re dealing with a situation 24 here in which the TCDD has been essentially diluted and sprayed on 87 op of the soil. If at 15 ppm, if we were to assume that the 1 aterial, now, are you referring to 3*1 parts per billion? 2 hat would be what we calculated as the concentration In soil* 3 'm not sure how to--I'm not sure how to relate that, because It 4 a In the soil and here ve are talking about material that's on 5 he surface. 6 Q All right. 7 . * A But we have a much, much lover concentration in the soil 8 hen we would have right at the surface of thla, where all of 9 his TCDD has been applied to the surface and has not been 10 ntralned In the soil, so the concentration right at the Interface 11 atvean the air and the ground would have much, much higher 12 concentration than would these, than you would find In a soli 13 hat contained 3.1 parte per billion distributed throughout the 14 oil. We can assume some Infinite thinness of the top layer and 15 one to some kind of an equivalent. 3.1 parts par billion Is 16 ibout 5,000 times less than 15 parts per million. 17 Q Now, does this experiment, air, duplicate In your opinion 18 .n any way the situation at Sturgeon, Missouri, as it's been 19 iven to you In the hypothetical question? A No, sir, I don't think it does. Q Why not? A Well, here we are talking about material that's.been ipread on the surface and a surface that includes soil, vegetation 86 1 so forth, and Sturgeon, we a^e talking about material that was 2 In a very large volume of chlorinated phenol and phenol that 3 spilled Into the soil, went down, saturated the soil, penetrated 4 to some depth, and then remained there as soon as It cooled until 5 the spring when the material, that Is, the material that was 6 left after the cleanup that took place during the cold weather* 7 In fact, you've described that just a short time ago, so I don't 8 see any comparison at all* 9 Q Would you expect, sir In the way the Sturgeon Incident 10 occurred with the derailment and the material coming out of the 11 bottom of the tank car-- 12 MR. CARR: Suggestive question, your Honor* 13 THE COURT: Objection Is ,,sustained* Please rephrase It* 14 Q Would you expect, ai, that in the Sturgeon situation, 15 well, can you tell us whether or not any TCDD that was in the OCP 16 and phenol that came out of the tank car would stay right at the top? 17 A Ho, eir, I don't think It would. I think it would follow 18 the-- -I think It would follow the 0P right down Into the, in that 19 first, when it Is first spilling, It will follow It right down 20 Into the bellast and ao forth* 21 Q Now, sir, If It had s.tayed at the top. If the TCDD had 22 stayed right at the surface, would It be more comparable to the 23 Nash study discussed In Plaintiff's-- or Defendant's Exhibit 1148? 24 A Well, it would In a way* The volume of material is very, 89 1 very large, but it would be comparable, It would be tbe phenol 2 and the TCDD would be at the surface of this material. 3 Q And according to what Hr* Schroy has testified to with 4 respect to what happened in the cold and the winter months versus 5 the warm months, would any TCDD In It have volatilized during 6 January and February when the temperature was around aero? 7 A X would certainly doubt it. 8 Q And if It were all at the top, sir, what would have 9 happened to it during the.cleanup? 10 A Well, it would have been carried away. 11 Q Now, sir, If It were ,,.all at the top, and you assume the 12 cleanup steps that I have suggested to you from the hypothetical 13 question, the depth, the levels, the amounts that was taken away, 14 and assume further, sir, that after that taking away was done, 15 that there was new soil and ballast put down, would you assume 16 that, sir? 17 A Yea. 18 . Q Where would that, if^there were TCDD there left, where 19 would it be? 20 A It would be under the added ballast, under the added 21 material. 22 Q And according to what have asked you to assume from 23 Hr, Schroy'a testimony as of alx years from January of 1979, 24 would any of It have yet volatilized to the surface? 90 1 A According to Mr. Sch^oy, no. 2 MR. HEINEMAN* I have no further questions, your Honor. 3 THE COURT: Mr. Carr* do .you have any further questions? 4 MR. CARR: Yes. 5 THE COURT: Before yqu a^art on your recross examination, 6 we will take a short recess qt this time. 7 MR. CARR: Certainly.. 8 THE COURT: Court Is vln Recess. 9 (At this time, Cqurttvas .In recess.) 10 THE COURT: Mr. CarrT^ 11 RECROSS EXAMINATION 12 ,.BY MR* CARR 13 Q Dr. Dost, this morning Mr. Helneman was questioning you 14 and suggested that there were two things wrong with the Polger and 15 Schlatter study If you have to make an assumption that there was 16 no Intake of TCDD after the labeled material was put In, la 17 that correct, sir? Have I fairly and accurately stated that? 18 A Not quite. It could .he either with none coming In or with 19 some already there and complete mixing of the material added. But 20 then none following, at least until other measurements are made. 21 Q And you made an assumption that this study of this 22 calculation was faulty because you assumed that this male volunteer 23 had continuous exposure to TCDD after ingesting this radioactive 24 TCDD? 91 1 A I said that's a question that has to be answered before- 2 Q Well you apparently,answered It in a fashion and said in 3 effect that that's what's wrong with this study because there 4 was material ingested. 5 A I said because of the frequency with which people are 6 found with an existing body burden of TCDD and -the probability 1 that there la a continuing amount of TCDD coming into the body 8 that needs to be accounted fqr in the calculation. 9 Q How Doctor it is in .comparison to the amount that was 10 radioactive this volunteer 7 was checked after 35 days and X 11 think after 120 days something like,that was he not? 12 A Yes. 13 Q Would the amount that, would come in under these ordinary 14 circumstances be anywhere close to this amount? 15 A I have no idea. 16 Q Doctor you have absolutely no idea at all do you sir? 17 A That's the reason why, 1 need the answer to the queBtlon-18 Q Well Doctor you arq, assuming that something occurred 19 during this test period and you have ,absolutely no information 20 that something did occur during this test period, isn't that 21 correct, sir? 22 A Yes, sir. 23 Q And what you are doing Is simply speculating that 24 something may have occurred without the least factual knowledge 92 1 or evidence that something did occur In order to denigrate this 2 study Isn't that right Dr, Dost? 3 A No sir not quite, 4 Q Well did you make an assumption that this study was 5 faulty because It doesn't account for TCDD coming Into the body 6 after the date of Ingestion of this radioactive TCDD? 7 A :Tea 8 Q Yes. Tou have absolutely no knowledge that this male 9 volunteer was anywhere close to a can of Lysol, do you sir? 10 A No sir I know nothing-- 11 Q Tou have absolutely n.o knowledge that this volunteer 12 was anywhere near Sauget Illinois or Nltro West Virginia or 13 some other chemical plant .where they make TCDD do you sir? 14 A No air. 15 Q Tou have absolutely qo knowledge that this person ate 16 cattle that had been eating on rangeland that had been treated 17 with 24*5-T do you sir? 18 A No sir, ,, 19 Q What you have Is knowledge, no affirmative knowledge chat 20 he had any kind of exposure to TCDD other than what he ingested 21 Isn't that correct sir? 22 A That's correct, 23 Q Yea. Now Doctor you made a statement that the radioactive 24 materiel would be diluted by the substanee taken in after the 93 1 Ingestion of the radioactive material, did you not air? 2 A Yes, sir. 3 Q Sow, Doctor, ttaa only; way that that could affact the-- 4 strike that for a moment. The person conducting this test 5 actually measured the amount of radioactivity of the TCDD that 6 was being excreted in the feces or urine, correct, air? 7 A Yes, air. 8 Q And they do that with what, some kind of a Geiger counter? 9 A A related instrument^ 10 Q Sir? 11 A A similar instrument^ 12 Q They truly count the.number of beeps? 13 A Yes. 14 Q And they are counting the number of beeps coming from 15 that material that they put in, correct, sir? 16 A Yes 17 Q And what you are saying then Is the only way that could 18 have a diluting effect Is If .the body or--strlke that. Does the 19 body excrete the same amount of TCDD no matter how much It has 20 In It? 21 A Excuse me, X*m not su.re I understand you. 22 Q Does the body excrete, the same amount of TCDD on a 23 daily basis no matter how much It has In It to start with? 24 A It would probably excrete some constant fraction of the 94 1 amount that's In it. 2 Q Wall, the constant fraction la not the aqulvalent of 3 aaying It excretes the same amount. It excretes-- the more TCDD 4 it has in the body, the more it vould excrete according to your 5 Judgment* Isn't thet right? 6 A That's correct 7 Q So you have any knowledge upon which to base that 8 statement* sir? 9 A All of the animal atqdies that deal with TCDD metabolism 10 indicate that. 11 Q Now, Doctor* did thege animal studies* did they measure \ 12 the feces and the urine excretion? 13 A Tea. 14 Q And they concluded tt^at a certain constant amount was* 15 a certain constant percentage was taken out? 16 A That's the basis of the kinetic finding. 17 Q And* Doctor* all thoge animal studies, however* came 18 to the conclusion that there is a thirty-day half life of TCDD 19 In the animals except for the monkey that has a year half life.* 20 Isn't that right* sir? 21 A Yes. 22 Q Doesn't that suggest .that something is in the area of 23 metabolising* excreting this TCDD* there Is something tremendously 24 different between the human body and the animal body? 95 1 A No, sir. 2 Q Well, Doctor a thirty-day half U f a la nowhere Ilka 3 4,95 yeara according to Polgar and Schlatter, or three to five 4 years, according to Monsanto, Isn't that right, sir? 5 A That's correct. 6 Q Thera Is just a tremendous difference between thirty days 7 and three to five years. Isn't there, sir? 8 A Thera Is, yes. 9 Q And there Is, therefore, .a tremendous difference betveen 10 the human body metabolises TCDD and the way the animals, the 11 experimental animals metabolise TCDD In the rates, Isn't that 12 correct? 13 A Mo, sir* 14 Q Oh, the rates are the same, sir? 15 A There la only one experiment vlth ahuman, 16 Q Doctor, could you answer my question, air? 17 A The answer Is no, the.re Isn't a difference* We don't 18 have information to answer It. 19 Q Ton have thla Information right here, don't you, Doctor? 20 You have the Monsanto Information, don't you, sir? Three to 21 five years? You have the monkey study, don't you, sir, one year? 22 A I've discussed the monkey study. 23 Q Yee, we have those three studies, we have a monkey, which 24 la a primate, close to human belnge. Wo have the calculation 96 1 made by Monsanto, and we have thla study by Poiger and Schlatter 2 do v* not air? 3 A Thlo atody la Incomplete* 4 Q Excuse me Doctor* Could you answer that question please? 5 A Tea that's true* 6 Q Because ve are discussing this study right now. We also 7 have the Viet Ham veterans who were exposed to TCDD in Viet Ham 8 many many years before their fat was tested, correct, sir? 9 A Yes* 10 Q And we know that they have fat, the TCDD in their fat 11 tissue many, many years after their exposure, don't wa, sir? 12 A If their exposure only took place then, yes. 13 Q Hell, that's all the .informatlon we have* Ve have that 14 one veteran with nearly a hundred parts per trillion In his fat 15 tissue, did wa not, sir? 16 A Ve know nothing else ,about them, that's correct* 17 Q* Veil, the scientists.conclude, or their judgment is that 18 it was the Viet Ham exposure ,,that caused the TCDD in these Viet 19 Ham veterans' bodies, isn't that right, air? 20 A Some of them have ma4e that conclusion, yes* 21 Q You have no information to the contrary, sir? 22 A Ho, sir* 23 Q Nothing factual at all to counter what they say? 24 A That's correct* 97 Q Now, Dr.' Dost wo do have this study even with a dilution 1 that would suggest the metabolising excretion rate In huaans Is 2 vastly different than that In the animal vis a vis 4.95 years 3 versus thirty days don't we sir? 4 A If this can be accepted* 5 6 Q Tee. Now Doctor If It can be accepted now the dilution 7 factor that you talk about the TCDD that they counted the 8 radioactive TCDD that they counted coming out In this person's 9 body had a half life of 4.95 years didn't It air? 10 A Tes. 11 Q Now that took In account whatever dilution there might 12 be In this body because of pre-existing TCDD or after ingesting 13 TCDD doesn't It sir? 14 A No, sir. 15 Q Well, Doctor, didn't^they measure the TCDD, the 16 radioactive TCDD that came out of this man's excretions? 17 A Tee. 18 Q And they measured based upon that that,23 percent came 19 out in a particular period of time, and therefore based upon what 20 their actual counts, they said the radioactive TCDD that's In 21 this body has a half life of 4.95 years, did they not, sir? 22 A They said that, yes. , 23 Q Now, Doctor, they are measuring, whan they measure the 24 counts, they-are not measuring that which may have diluted, are 98 they sir? 1 2 A Ho, end that9 thfl problem. Q Doctor, If you will bear with ne. They are measuring 3 4 s far as this person la concerned the half life of radioactive 5 TCDD In his body le 4.95 years. Isn't that correct, sir? 6 A Of the label that they put In, and that's all. 7 Q And that's exactly what I've asked you. Of the label 8 TCDD that they pot In, the half life of that TCDD In this person's 9 body is 4.95 years, correct, sir? 10 A Just of the label. 11 Q How, Doctor, isn't that what I am asking you? The label, 12 what they are measuring is the label, correct, sir? 13 A Yes. 14 Q And they are measuring label TCDD, aren't they, sir? 15 A Yea* 16 Q And the label TCDD that they pot In there are, you said 17 la exactly the same as other TCDD for excretion purposes, correct, 18 air? 19 A Yes. 20 Q So what they are measuring la the TCDD that they put 21 In, the TCDD that they put In this volunteered body has a half 22 life of five years, doesn't It, sir? 23 A Ve don't know. We have no way of knowing. 24 Q Doctor, we do have. ..They counted the blips on the 99 1 Geiger counter they counted the blips that came out, did they 2 not, sir? 3 A That's not sufficient information. 4 Q Exetsse me, did they count It or not? 5 A Tea, they counted it, 6 Q They counted all the ..blips that came out In this man's 7 excretion and feces for the period of time In question^ didn't 8 they, sir? 9 A Tee. 10 Q And they fcnov that the rest of It Is In there, don't 11 they, sir? It didn't come out, did It, sir? 12 A That's correct. 13 Q And they measured the amount of the TCDD that they put 14 in as opposed to the amount that they put out, right, sir? 15 A. Ho, the amount of label. 16 Q That's right, that's ,,all they put in was label TCDD, 17 they didn't put anything unlabeled TCDD In this man's body, 7 did 18 they, sir? 19 A Well, actually, part .of that Is unlabeled. 20 Q Doctor, are you now changing your testimony? 21 A No, sir, I an not. 22 Q They put In labeled TCDD and they measured the labeled 23 TCDD that came out, didn't they, sir? 24 A Tea 100 1 Q And whatever didn't come out la still there isn't it, 2 sir of this label TCDD? 3 A Yes. 4 Q This label TCDD In this man's body under the circumstances 5 that he is living with whether he has a lot of TCDD in there to 6 start with or whether he Ingested massive TCDD later on that 7 TCDD has the half life of 4.9 years? 8 A Tea. 9 Q how Doctor that's the whole point. In this man's 10 body the TCDD has a half life of 4.95 years and It makes no 11 difference as far as this man Is concerned If he took In a lot 12 of TCDD later on or If he had a lot of TCDD In his body to start 13 with this la an in common situation* In the human circumstance 14 everybody that gate exposed to TCDD will have some TCDD in his 15 body will he not sir? 16 A Yes. 17 MR. HEXNEMAHi Tour Honor objection, please, object 18 to the speech, ask that It be stricken and ask the Jury be 19 Instructed to disregard it. 20 THE COURTS Objection is.overruled properly part of the 21 question. 22 Q How, Doctor, whether .the new TCDD that comas In is 23 diluted by the existing TCDD or is diluted by some later TCDD 24 that comes In the TCDD In that person's body has the half life 101 1 as suggested here. Isn't that correct, Dr* Dost? 2 A So, sir. 3 Q How, Dr* Dost, wherein is it incorrect if the label 4 TCDD, if you are not taking back what you said a moment ago 5 about the half life in this man's body of this label TCDD 6 being 4*95 years? 7 A Tou just used the term TCDD. How ve are trying to find 8 what the half time of TCDD In that person is* To do that ve 9 have to Introduce a marker of some kind that can be used to 10 follov it* 11 Q And they did that, they Introduced the marker. 12 A They did that* 13 Q And they counted that, marker* 14 A That marker dilutes iflth all of the TCDD in the body. 15 If there la additional TCDD coming into the body, it will further 16 dilute it and the TCDD, the label TCDD that comes out will 17 actually be representing a larger amount of material which will 18 give the illusion of a longer half life. 19 Q Tee, but Doctor, it won't be representing a larger 20 amount of the label TCDD. That TCDD le still in thera, it 21 has the half life of 4*95 years, doesn't it, no matter how much 22 other TCDD comae out vlth.lt, it has the half life of 4*95 years, 23 doesn't it, sir? 24 A Do, sir, it doesn't.. n 102 1 Q Didn't ve just establish that you're measuring actually 2 what cornea out, didn't they count exactly what came out* Dr* Dost? 3 A Tea. 4 Q And vhat didn't eone ,out,le still there, correct, sir? 5 A Yea, 6 Q And vhat la still there haa the half life of 4*95 years 7 by actual measurements, doesn't It, sir? 8 A There is not enough Information to make the calculation. 9 Q Veil, now, Doctor, you made a calculation, you took away 10 from this conclusion when in point of fact vhat this study 11 shows Is that there is a half life. There may he variances 12 from human to human as there 1s la any kind of thing. But tha 13 label TCDD that vae put In this person's body haa a half U f a of 14 4.95 years, doesn't It, sir? 15 A The label as it Is put in and tha label aa It la counted 16 out vould provide that figure* 17 Q And that figure la 4.95 years, Isn't It, slrT 18 A For the label. 19 Q And Doctor, so ve just don't get bung up on the label, 20 tha label Is the 2,3,7,8 TCDD that vaa labeled vlth this 21 radioactive hydrogen atom, correct, air? 22 A That vas administers^ yes. 23 Q So ve are measuring the TCDD that vaa put in and that 24 TCDD that ve took In at that point In time has that half life. 103 1 doesn't It, sir, of 4.95 years? 2 A If we consider only the label at this point, that's 3 the Information, 4 Q All right. And Doctor, If a person took In, Instead 5 of It being labeled TCDD, all other circumstances are the same, 6 instead of being labeled TCDD, radioactive, It was non~radloactlve, 7 that TCDD would react the same way as the non-labeled-- aa the 8 labeled TCDD, wouldn't It, air? 9 A I have no Idea. 10 Q Doctor, you just got ^through saying that the labeled 11 TCDD and the non-labeled TCDD reacts' exactly the same way in 12 the human body. Now, that's what you told us on direct examination, 13 A They behave the same., 14 Q Isn't that what you told.us, sir? 15 A Tes. 16 Q If they behave exactly the same, the fact that you put 17 the label on It or the fact that you don't put the label on it 18 has no effect upon the result. Isn't that correct, sir? 19 A You would have no way of .measuring-- 20 Q Excuse me. Doctor, I .didn't ask you that, 21 A -- for the molecules that you put into the body, this 22 figure would emerge, 23 Q So If you put In 105 .micrograms of non-labelad TCDD in 24 this person's body, that bit that he Ingested on that particular 104 1 day In that particular point In tlae, whether you label It or 2 don't label ltv haa got a half U f a of 4*95 yaara according to 3 thla study doesn't it air? 4 A The dose vaa 105 nanogra^s, which was a very snail amount. 5 Q Nanograas, all right,, sy .question la whatever the dose, 6 that TCDD was ingested on that day haa a half life of 4*95 years, 7 doesn't It, sir? 8 A If no other TCDD went, into the body afterward, that 9 would be correct. 10 Q And If more TCDD went, into the body afterward, it le 11 still correct? 12 A Ho, sir. 13 Q Why not, Doctor? 14 A I have explained it several tinea. 15 Q Oh, Doctor, but what*you explained was you counted the 16 counts that came out, it doesn't matter how many came out, how 17 much waa there already, he could have swallowed barrels of it later 18 on, but the amount that came out, that he put in came out having 19 a half life of 4.95 years, they counted the blips, did they not, 20 sir? 21 A 1 I'm trying to explain the science. 22 Q Doctor, they counted ,the blips, didn't they, air, the 23 beeps? 24 A That's what they counted. 105 1 Q And that material that had these blips had this life of 2 4*95 years regardless of however each other TCDD may have been \ 3 there? 4 A The other TCDD Influences It 5 Q Does it make It more^radioactive or less radioactive, 6 more counts or less counts? 7 A Per unit time it co<|ld be more or could be less 8 Q Ton believe that the .other TCDD affects the radioactivity 9 of this label sir? 10 A I've said nothing of^the.sort* 11 Q That's what I have agked .you, does It give it more 12 counts per minute or less? 13 A Xt could cause It to ^comg out faster or It could cause 14 it to come out slower 15 Q Whether It came out slower or faster this Is the rate 16 It came out, at the rate of 4.93 years for half life didn't 17 it sir? 18 A Yes. 19 Q So how It was influenced by the other is Immaterial. 20 This TCDD had the 4.95 years^ didn't r.lt sir? Haven't you 21 answered that already a number of times Dr Dost? 22 A Yes 1 have 23 Q Wow Doctor, Insofar^as tha various sources of the 24 TCDD that ona Is exposed to you are aware of what the EPA says 106 1 about the sources of the TCDD to which vo are exposed don't 2 you* sir? 3 A I don't remember their precise statement. 4 Q Could you give the exhibit 1665 to the wltnessT 5 A Z have that here on ^y desk. 6 Q You do? Fine. Turning to 4-38* 7 A Yea. , ,, 8 Q The paragraph that begins a little pest the middle 9 of the pagei "The primary sources of TCDDs In the environment 10 are Industrial manufacturers of chlorophenols or their derivatives 11 and chemical disposal sites containing the wastes from these 12 industries." 13 A Yes. 14 Q And Doctor, It also fays, "Municipal waste consideration 15 also may produce some environmental emissions of TCDDs" does It 16 not, sir? 17 A Yes* ,, 18 Q And do you agree with, the statement of the EPA that 19 these are the primary soureeg of .these TCDDs,that is the 20 Industrial manufacturers of chlorophenol or their derivatives 21 and the chemical disposal slt.es containing the wastes from those 22 industries? 23 A Well, those ere certainly significant. 24 Q My question Is do yoi| agree with the SPA assessment here? 107 1 A Yes. 2 Q Doctor* one of the derivatives of these chlorophenole 3 1* Lysol* Isn't it* elrf 4 A Wall* It depends on product. 5 Q Wow Doctor* did you undoretend ay question? 6 A Yes. ' * 7 Q Ono of the sources o contamination of the environnent 8 with polychlorinated dlbensodioxlns Is Lysol* isn't it, sir? 9 A Well* I don't know whether it is e significant contributor 10 or not* 11 Q Doctor did I use the word "significant contributor"? 12 A No sir. 13 Q What did 1 ssy, Dr. Doat? 14 A You said one of the contributore. 15 Q Yea* and could you answer that question* please* sir? 16 A Which Lysol* of courqo? 17 Q Dr. Dost* you do knoif thqt Lysol contains dioxin* sons 18 of the Lyaola on the market contain dioxin* don't you* sir? 19 A If it is the chlorophenols, I've heard that* I've seen 20 some information. 21 Q You've heard that frqm Monsanto, 22 A Yes* I've seen data,f 23 Q You've seen data. Doctor, where did you see the-- did 24 a Monsanto official tell us that Lysol contains dioxin? 108 1 A I have not spokan to .any Monsanto officials, 2 Q Than Z taka it a Monsanto official did not tall you 3 that la that correct* air? Is that the ansver to ay question? 4 A Yes. 5 Q Did one of the attorneys for Monsanto tell you that 6 Lysol contains dioxin? 7 A Z was provided information by attorneys that described 8 some of that Information. 9 Q let as ask you again, Doctor* did one of the attorneys 10 for Monsanto tell you that tysbl contained dioxin? 11 A Veil* Igusss that vould .mount-- yes. 12 Q Who was that attorney? 13 A I don't really remember who it ves. 14 Q What attorneys have you had contact with that have 15 discussed the facts of this case vlth you? 16 A Well* Mr. Belnenan* qf course* Hr. Ryder* Miss Rudolf. 17 Q Bov about Hr. Massif?, 18 A Hr. Massif is an attorney for Monsanto. I've discussed 19 it obviously vlth Mr. Massif. 20 Q So it Is one of those, four lsvyers told you that. Z.ysol 21 contalna dioxin* is that correct, sir? Or gave you the documents 22 that told you that Lyeol contains dioxin* is that right* sir? 23 A Yes. 24 Q Hov long ago did youj|etvtbig Information* sirt-.>?V/r`r- 109 1 A I don't know. It's boon quite a long tine. 2 Q Now did they eleo tqll you that Dr. Kilgore was told 3 by a Monsanto official that Lysol contains dioxin? 4 A I haven't heard that.. 5 Q Are you aware of the.faet that Dr. Kilgore testified in 6 this case, sir, that he was told by an official of Monsanto's 7 that Lysol contains 2,3,7,8 TCDDT 8 A I wasn't aware of th%t. 9 Q But you got the sane,,information from another source, 10 did you not, sir? 11 A Apparently, similar information, at least 12 Q Nov, Doctor, the fact, that the particular can that you 13 have in front of you or could you get the Plaintiff's and 14 Defendant's littIs cans of Lysol out? I think there may be two 15 or three of them. Tea, one is a Monsanto, that's right* How, 16 Doctor, each of these exhibits^.that is, 487-- 874 and 1194, you 17 recognize as Lyaol that you can buy in the supermarket? 18 A Yes. 19 Q And there are a lot qf other Lysole that you can 20 buy In the supermarket, aren't there, sir? 21 A Yes. 22 Q And do you know just ,wheo the Exhibit 1326 and 1327 were, 23 purchased or were acquired? 24 A I have no idea 110 1 Q I take It you weren't part of buying It? 2 A No, sir. 3 Q You weren't told by the lawyer where they got them or 4 when they got then? 5 A No, sir. 6 Q You do know that sometime after this, after the Sturgeon 7 spill took place that Monsanto quit aaklng Santophen because the 8 maker of Lysol went to the-- what you would call the quats and 9 no longer uses Monsanto'a Santophen, you do know that, don't you, 10 sir? 11 A Yes. 12 Q And it would be therefore likely that the tyeol that you 13 would buy today from the store, l,,t would he likely that it does 14 not contain Monsanto's base product, wouldn't it, sir? 15 A 1 would think so, yeq. 16 Q But do you know hov uiany.years the Monsanto based product 17 was used to manufacture Lysol and sold to the American public 18 prior to the time Monsanto quit making Santophen? 19 A No, sir, Z don't knoii how long. 20 Q Doctor, didn't you discuss that Issue with the attorneys 21 that gave you the Information, or wasn't the information In the 22 documents that you got? 23 A Yes, It was, but 1 don't remember the time line. 24 Q Doctor, you know thatlt's been many, many years, don't 111 1 you, sir? 2 A For a substantial period, yes* 3 Q And all during that period of tins you know that the 4 Lysol contained dioxin, don't you, air? Up until the tine 5 they quit using the Monsanto productt 6 A Yes* 7 Q And, Doctor, all for^thoie many years, if TCDD has a 8 half life of 495 years as Polgsr and Schlatter suggest, that 9 would mean that the Lysol.contaminated with TCDD could'be, that 10 TCDD could yet be in the bodies of the people living today, 11 couldn't it, sir, if they got TCDD from exposure to Lysol, say, 12 in 1979? 13 A If they had exposurevand If it is correct, yes, 14 Q Now, the 1979 exposure, that Lysol thst they got in 1979 15 would, half of it would still be in there todey, elr, if this 16 exhibit la correct* 17 A If that Is correct, yes*, 18 Q And a quarter of that, which they got in 1974 would still 19 be there, wouldn't it, sir? 20 A Tea, if that's correct* 21 Q And the 12 and a half percent of that which they got in 22 1969 would still be there? 23 A Yes, 24 Q And six percent of tb.at which they got in 19-- whatever, 1X2 1 twenty years ago, 1964 or 1939, would still be there, wouldn't 2 It, slr7 ^ 3 A In that event, yea. 4 Q And all those dioxin9 over that period of time would be 5 accumulating one on top of another, wouldn't they, sir? 6 A Hot necessarily. 7 Q Hell, Doctor, you say not necessarily. Could It occur 8 or not, sir? 9 A No. 10 Q It Cannot occur? 11 A Ho. 12 Q- Doctor, If you cannot, excrete It at a faster rate than 13 4.95 years, isn't It still there? Isn't that the definition of 14 half life, Dr. Dost? 15 A If that's the half life, then the exposures must be 16 exceedingly low, because body burdens are very low. 17 Q How, Doctor,. I am not asking you that. My question was, 18 sir, that would add up. one on top of another, wouldn't it, sir? 19 All these accumulated half lives over that period of time would 20 all still bo there, wouldn't It, sir? 21 A No, sir. 22 Q If this Is correct, qlr, ,lt is not being excreted In 23 the urine or the feces, Is It, sir? 24 A Well, the material that's going In, It Is going to be 113 1 coming out at the same rate It la going In* There will be an 2 equilibrium If the Intake ..la constant. 3 Q Well. Doctor. If the^intake Is constant, but vho says 4 the Intake la going to be.constant, air? There vili be a greater 5 exposure one day and less In another, wouldn't It. air? 6 A But It will average qut.. 7 <3 Well, everything averages out The widest variety of 8 exposures and doaea also average but so that you can say It la 9 a constant, can you not. sir? If you take three thousand figures 10 and add them all. various flgurss and divide them all by three 11 thousand, you are going to get the constant average, aren't you. 12 sir? 13 A Yes. 14 Q All right. How. Doctor. ,this body burden that we have 15 in our bodies, la it in your judgment more likely that It has 16 come from this kind of exposure to Lyeol. more likely that It's 17 come from the 2.4.5-T exposure, or more likely that It's cme 18 from living near Industrial wastes? 19 A. I really don't know., 20 Q Let me suggest to yoq. Doctor, that the thing that we 21 all. if we all have it In our bodies, the meet universal 22 substance to which we are all exposed one way or another is not 23 the 2,4,5-T on the rangeland, and It la not the industrial waste 24 site, but It Is this product that's In every grocery store and 114 1 probably In the majority of the homes la the community, isn't 2 that correct, Or, Dost? 3 A Well, I don't know hqw tq quantitate the exposure. 4 Q Doctor, I 'm not asking you to quantitate the exposure. 5 I'm saying of these sources of contamination that wo ell have 6 in our bodies now of TCDD, which la the most likely source of that 7 TCDD, the 2,4,5-T that's on the rangeland, the Industrial waste 8 elte been dumped by a chemical company, or the Lysol that we i 9 are all exposed to? 10 A I 'm having a little t.rouble differentiating between n amounts and frequency. Certainly the exposure, If it exlets to 12 lysol, Is very common. How It compares quantitatively with the 13 potential for movement of .TCD.D through livestock. I 'm not certain. 14 Q Doctor, this livestock, they quit using 2,4,5-1 on 15 rangeland many years ago, didn't they, sir? 16 A Yes. 17 Q About 1970 thereabouts? 18 A No, sir. 19 Q When was It, Doctor?, 20 A About '78 or '79. 21 Q They quit UBing that ,some five, four years ago before 22 Lysol quit having Monsanto's product in it, is that right, air? 23 A Probably. 1 don't know just when they stopped using It 24 in Lysol. 115 q Doctor to your knowledge, has Monsanto ever Informed 1 the EPA or the PDA or Lehn & Pink, the manufacturer or anybody 2 else that their Lysol contains dioxin? 3 HR* HEINEMAH: Your Honor, may counsel approach the 4 bench? 5 THE COURT: Sure. 6 (The following conference was held at the bench*) 7 HR* HEIHEMAHt Your onor, X have been trying not to 8 Interrupt too much In the.course of this examination because 9 I'd like to get this witness off the stand, but this is clearly 10 beyond the scope of the direct examination which 1 have Just 11 12 conducted with this witness* Xt has absolutely nothing to do with anything I've asked him, and I object to It as going 13 beyond the scope. 14 Purther, Z objeet on ,the ground that bis opinion on these 15 subjects is absolutely Irrelevant to this lawsuit* 16 MR. CARR: Your HonoK. X ,,see the two Lysol bottles 17 18 brought out by them in their redirect* They brought up the 19 subject of Lysol, they compered it with a possible accumulation 20 in the body. I submit It Is within tbs scope of what they did* 21 HR, HEINEMAJ: Xt waqn't ,,compared with 2,4,5-T, the question 22 was when Mr* Carr told this question and asked him to assume 23 that there was Lysol, or there was dioxin In the Lysol spray, 24 the purpose of it was to demonstrate that there Isn't Lysol 116 1 dioxin In this Lyool spray, and It's being sold to everybody, 2 which Is vhat he stated la his examination of this witness 3 It has nothing to do with comparison of 2,4,5-T or anything else. 4 MR. CARR: It has, too. It Is what caused the dioxin to 5 be In our body. 6 MR. HEIHEMM: That yas x$ot the subject of the cross 7 examination* 8 THE COURT: Objection Is overruled and I will make It a 9 continuing objection to this line. 10 (The following proceedings were held In open Court.) 11 BY MR. CARRt 12 Q Could you answer that question, Dr. Dost? 13 A You are referring to .the time? 14 Q During the time that ,,.they manuf actured the Santophen that 15 bad the dioxin In it that was the cause of the Lysol having the 16 dioxin In it. 17 A I really don't-- you are speaking about reporting to the 18 agencies? 19 Q To responsible governmental agencies that need to be 20 told where the contaminant Is. 21 A 1 really don't know*^ 22 Q Doctor, you do know that It la an obligation of the 23 manufacturers to advise the appropriate governmental agencies 24 of the existence of dioxin content, do you not, sir? 117 1 A 1 don't know whether there Is any specific requirement 2 of that sort or not. 3 Q Doctor you are not familiar with the various regulations 4 of the BPA and FDA as to chemicals being manufactured? 5 A At the present time .yes I do not know what the position 6 was at that time. - 7 Q In '79 and '80 you 4<*nvt know what the law wee on the 8 hooka then sir? 9 A That required I do jjot know of a law that required that 10 kind of reporting. 11 Q You are not saying tl|at there is or is not you are 12 simply saying you do not know the law on the point? 13 A That Is correct. 14 Q All right. In any e^ent*. you do know that lavs do 15 exist in general that required chemical manufacturers to advise 16 manufacturers of toxic contaminants? 17 A There are various procedures I am not very familiar 18 with them. 19 Q I won't get into tha^. Doesn't that ever come up In 20 your work as a toxicologist? 21 A I am more interested kin the effect of the chemical 22 than I am with the law as relating to reporting about it. 23 Q How Doctor yon have agreed or no you've taken it 24 hack you no longer agree that there Is a that some people.can 118 1 react In one fashion to TCDD and others not* if I take your 2 testimony correct is that right air? 3 A Well it would be pretty such a function of dosage. 4 There is going to be some variability aadng Individuals. 5 Q Doctor you know there Invariability. On this TCDD that 6 ve have in our body Is It possible Dr. Dost as far as you know ifr , 7 that some people can have' adverse health effects from TCDD 8 exposure or TCDD in their bodies and that other people- would 9 not have such health effects? 10 A Oh I'm sure there in some dose at which that might 11 possibly happen at which .that would occur yes. 12 Q I'm not even asking relative to the doee Doctor given 13 the seme dose isn't it a fact that some people react adversely 14 and have bad effects while others may not be affected by it 15 at all? 16 A Well that's possible* 17 Q Nov Doctor It Is not Just possible you know It is 18 a fact don't you sir? 19 A There Is going to be ^a level at which nothing la going to 20 happen to any Individual. 21 Q Well now Doctor you have gone beyond my question 22 again. 1 said given an appropriate dose Doctor isn't it a 23 fact that some people can have adverse reactions adverse health 24 effects and others will not have any adverse health effects whatsoever? 119 1 A Given an appropriate .dose, yee. 2 Q And Doctor the toxic substanca that's in the fat 3 tiesue, TCDD, it doesn't act by itself, does It, sir, we are 4 exposed to other toxic substances, aren't ve, from time to time? 5 A I'm sure we are, yes.^ 6 Q When the people smoka., Doctor, they are exposed to the ' 7 carcinogens and the toxic substances In the tobacco smoke, 8 I aren't they, air? 9 A es. ,, 1 Q How, Doctor, isn't it possible that the TCDD that they 11 take in can cause the toxins that are already there that could *v 12 1 cause lung cancer to become more active? 13 A Only if the dose is quite high* FORM IL- 12 4 REPO RTERS PAPER tt MFG. CO. 0 0 0 -6 2 6 -6 3 1 3 2n 14 Q Nov, Doctor, you've seen, you've seen the Zack/Gaffey 6 Oo<D 15 reports, have you not, sir, that the lung cancer rate was 8 16 143 percent higher in one group of Nitro workers, are you aware (L3L CUl 17 I1 of that, sir? lHOIf 18 MR. HEINBMAN: May counsel approach the bench? 2Uclr- 19 THE COURT j Sure. ?J 20 s o 21 (The following conference was held at the bench.) MR. HEINBMANs It rea.lly isn't fair to a witness,. 22 your Honor, to keep dragging him out with things that have nothing 23 to do with the scope of the examination that's Just been, gone Into \ ^ 2 4 . with the witness. Now, w e 'r% going--wo*re hack to Zack/Gaffey and 120 1 the 143 percent* Good Lord, that was covered a month ago with 2 this witness* It was not covered by me today* and I object to 3 It. It goes beyond the scope* 4 ME* CARR; Your Honor,, he Is saying that this la such a 5 little amount, and he said It throughout their case, that It 6 wouldn't affect anybody and It wouldn't have any effect on anybody, 7 and that's exactly what ha said; 8 MR. HEIHEMAN: That'9, got, nothing to do with Zack/Gaffey. 9 MR. CARR: It has everything,,to do, because Zack/Gaffey 10 shows that the lung cancer rate Is higher among people exposed to 11 TCDD than people not exposed to TODD. 12 MR. HEIHEMAN: Your Honor, the point Is that ve will 13 never, ever finish with this witness or any other unless we 14 require it stay within the bounds of the examination of the other 15 counsel, and this has, I've never even gone near this subject. 16 MR. CARR: You didn't, ask the health effects, whether 17 or not that was enough volatility to affect anybody at Sturgeon? 18 MR* HEIHEMAH: Doaa that .naan that any subject covered 19 at any time in this case opens up every other subject? 20 MR. CARR: When you want ,,into the health effects from 21 the amount of dioxin that these people were exposed to because 22 of their volatility, you opened up the door again and again on 23 how TCDD reacts with other chemicals. You don't have the right to 24 say, well, I can ask about volatility and ask If that volatility 121 1 will affect somebody, or that amount that's breathed In the lungs-- 2 MR. HEINEMAN: You certainly maintained that in the past 3 with my cross examination. 4 THE COURTS Objection overruled. I think it ia within 5 the scope. 6 (The following proceedings were held In open-Court.) 7 BY MR. CARRs 8 Q Doctor, to get a little more specific on the lung cancer, 9 you testified about the amount of TCDD being Inhaled if the worker 10 or somebody was In this microcosm or exposed to the vapor In the 11 Hash study, do you recall Mr. Helnemaa just asking you about 12 that, sir? 13 A Yes. 14 Q And you said something to the effect yea. It Is only 15 that which would go down Into the stomach that would he poisonous, 16 only that 30 percent thatwould go down there, correct, sir? 17 A X said 30 percent of jrhat was inhaled would probably 18 be absorbed. 19 Q And you said It would be.absorbed because it would he 20 swallowed, didn't you, sir? 21 A It would be brought l^ack up out of the respiratory tract. 22 Q That 30 percent would? 23 A The whole amount would be brought up. 24 Q The entire amount is .going to be brought up out of the 122 1 lungs? 2 A If It Is on partlcul4 te material which is probably 3 the Way that It Is going to reach* 4 Q Now Doctor, you are ..speculating. You're saying on 5 particulate material. They were not measuring in the Hash study 6 particulate material, they were measuring gas, vapor 7 A They didn't know If i.t wae vapor 8 ed They described it as ,,vapor. 9 A They didn't specify It. 10 Q They described It as ,,vapor, did they not? They didn't 11 say It was dust, did they, air? That's something that you threw 12 in there. The article says It was vapor, doesn't It, sir? 13 A The article says that it.was airborn and they trapped 14 it, they didn't specify they speculated that It was vaporized. 15 Q They speculated, Doctor?,,They said, they used the word 16 vapor, it was vaporized, did they not, sir? They said it was 17 volatile, vaporized, did they not, sir? 18 A That was Dr. Schroy's, words, sir. *I 19 0 Yes, and the vapor, whether it la on dust particulhte or 20 not, the vapor that's inhaled into the lungs, 30 percent may. go 21 Into the stomach, but the other 70 percent would remain In the 22 lungs, would it not, sir? 23 A If any of It is going to .be moved Into the digestive 24 tract, most all of It would. 123 1 Q Nov, Doctor, you said 30 percent would go Into the 2 digestive tract? 3 A No, 1 said 30 percent of what vent into the digestive 4 tract would be absorbed. 5 Q When they are inhaling this vapor, Doctor, does the vapor 6 get into their lungs first? J 7 A If it Is in fact a v$por. 8 Q Or If It la In fact dust, It will still get Into the 9 lungs, von't 1 t, sir 10 A If It la dust. It vlll be moved back up, If It Is a vapor, 11 yes, It will stay In the lungs. 12 Q Are you saying all of It .will be moved back? You know 13 better than that, Dr Dost. 14 A Most of the dust that goes Into the respiratory tract 15 Is moved out. 16 Q What you said vas all of It, and you know better than 17 that. The vapor goes Into the lungs, the dust goes Into the 18 lungs, some of that TCDD In that vapor could veil remain In the 19 lungs, could It not, sir?. Just like the tar, just like the 20 nicotine from the cigarette smoke, isn't that right, sir? 21 A I would expect the TQ.DD to be absorbed and distributed 22 if it gets into the lungs, if it gets that far. 23 Q Doctor, that's not vh.at I have asked you. It gets in 24 the lungs, It stays In the lungs until something else happens 124 1 to It, doesn't it sir? 2 A Ye, that' correct*, 3 Q Once It got in ther^ it; will stay there until something 4 happen to it, won't it, sir? 5 A Yes* 6 Q And it vill touch the, various tissue within the lungs, 7 won't It, sir? 8 A Yea. 9 Q And that TCDD touching that various tissue may either 10 remain on that tissue or be absorbed by that tissue and go elsewhere 11 into the bloodstream, correct, sir? 12 A Yes. 13 Q And 'In that bloodstream-- and before it gets there, however, 14 It may have some damaging affect on the lungs, may It not \slr? 15 A No, 1 don't think so*. 16 Q Doctor, have you asst|med that the lung cancer rate is 17 143 percent higher In the Nltro workers, in the exposed Nltro 18 worker to 2,3,7,8 TCDD than it 1 to other population in 19 general, can you not assume sir, that the TCDD played some role 20 In causing that lung cancer rate? 21 A If It is a fact, that that Incidence is that different. 22 Q Yes, that's what I as* asking you to assume, that it Is 23 a fact. 24 A It would have to be considered possible* 125 1 Q Wow, Doctor, not Justv possible, if it is a fact. It 2 occurred, didn't it sir? 3 A Tes. 4 Q Sir? The TCDD in the lungs or in the body, however it 5 got there caused the Increased cancer rate If what I gave you 6 la a fact correct air? 7 A I'm sorry, air that ..does not follow* 8 Q Is there any other fact that I have given you now I'll 9 grant you Dr* Dost ae far as you're concerned you are sitting 10 right there I could be misleading you I could be making these 11 figures up but I'm asking you to assume certain things. If 12 the lung cancer rate is 143 percent higher In those people 13 exposed to TCDD can you not^conclude that the TCDD Is having some 14 role to play in that rate sir? 15 A Well there Is an association between the two* 16 Q Doctor I don't care .whether you call it n association* 17 It has an effect, does it not, sir? Would you answer that 18 question please? 19 A Well * I'm trying to decide how to answer it. An 20 association is not necessarily cause and effect. 21 Q Well Doctor, you used the words "not necessarily." Do 22 you want to break that down? 23 A Well, you've told me .that the cancer rate is high and 24 you have told me that they ar exposed to TCDD. 126 1 Q Yeah, and that's all.the facte that I have given you, 2 right. Doctor? 3 A That's correct* 4 Q And from that can you not draw a conclusion, air, that 5 the TCDD has caused the lung cancer7 6 A Veil, if there are no other factors operating at all* 7 Q If there are no other factors operating at all? What, 8 sir? 9 A If there are no other, possible factors, then that would 10 be a fair conclusion. 11 Q How, Doctor, that would indicate the lung cancer rata 12 la affected either by the inhalation of the TCDD or some other 13 effect that we don't know, correct, sir? 14 A Again, If there are no other possible factors that are 15 Influencing those individuals * 16 Q Lung cancer Is caused by .the toxic substances Inhaled, 17 Isn't it, sir?. Isn't that what doctors of the medical profession 18 generally believe? 19 A Yes 20 Q It is not because it ^gets. into your blood or not because 21 It gets into your vein or your bile or your liver or your kidney, 22 it is because the toxic substance gets Into your lungs, air, that 23 causes the lung cancer* 24 A Seems to, yes 127 1 Q And f t h e m is 143 percent higher rate in lung cancer 2 with those people exposed to TCDD, it does Indeed follow- that 3 the TCDD could contribute to cause that Increase in the ratet 4 correct sir? 5 A Yes 6 Q Yes* All right. No**, Doctor* the same thing can occur 7 to others other cancers or other sicknesses by the TCDD 8 that's in our bodies* can it not* sir? 9 A No* sir* X don't thl^k so. 10 Q Doctor* Is the effect, of TCDD just In lungs end Just in 11 lung cancer? 12 A No* sir. 13 Q It Is a systemic tox^u* isn't It* sir? 14 A Yes. '* . 15 Q It can affect every single pert of the body* can't It* . 16 sir? 17 A Presumably* if there,,is a sufficient dose. 18 Q And* Doctor* it can affect other things in other ways* 19 can't It* sir? 20 A Only at an adequate dose* 21 Q Now* Doctor* you keep adding that* air* and my question 22 is assuming that the dose la there* sir. 23 A Assuming that the doqe is there* yes. 24 Q And of course ve have gone ell through that* end the dose 128 1 that is there can be a cumulative effect, can't it sir? Other 2 doses added to It can add to ,the toxic effect of that which la 3 already there Just simple addition correct, Doctor! 4 A It depends os the effect, sir* 5 Q It depends upon what .health effect is being caused la 6 vhat you are saying* 7 A Yes, In part* 8 Q Some health effects are greater and others are less 9 than from the same amount of exposure, isn't that correct, sir? 10 A Yes. 11 Q How, Doctor, you mentioned that the Moses study, 12 Exhibit 908 showed there is no dose response principle, do you 13 recall that, sir? 14 A Ho, sir, I didn't say that. 15 0 I'm sorry, you said exact opposite, that there is a 16 dose response principle Involved, is what you told Mr* Helneman* 17 A That's correct. 18 Q And In point of fact. Doctor, we vent through It and I 19 won't go through it again, if you acknowledge that you agreed 20 that in those symptoms that were shown by these workers, there 21 was no dose response shown except for half a dozen or so 22 A Yes, because there wasn't, sufficient dose to cause any 23 of those things*. 24 Q Hell, now, Doctor, vfco said there was not sufficient 129 1 dose to cause any of those? .And who said they weren't caused? 2 Who said that these workers with *the'chloracne and without the 3 chloracne did not have these symptoms? Where did you get that 4 from, Doctor? 5 A The people with chloracne; and without chloracne In that 6 group of^ symptoms that we had discussed did not show a difference* 7 Q How, Doctor, that's not the same thing, they did not 8 have symptoms which you just got through saying. 9 A You're right* 10 <3 There isn't any place In this document that says these 11 people did not have these .afflictions that were described here. 12 Isn't that right? 13 A That's correct 14 Q Aa a matter of fact* .for as far as you know from reading 15 this document, every single person there could have had joint 16 pains. Isn't that correct, sir? 17 A That's possible* 18 Q Ho, It is more than $hat* Prom all you know from reading 19 this document, every single person there could have had joint 20 pain, abdomen pain, nausea, vomiting, diarrhea, Irritability and 21 eo forth, isn't that correct, sir? 22 A That would be correct, yes. 23 Q And vbat they found v^as those symptoms showed no difference 24 between the people who had chloracne and not chloracne, correct, sir? 130 1 A Tea* 2 Q And, Doctor, even wit^h the exposure group, there wee a, 3 clearly a no dose response Insofar as even the chloracne Is 4 concerned, Isn't that correct, sir? 5 A Ho, air, X don't agree. 6 Q Doctor, didn't you testify this morning that 55 percent 7 of the people had heavy exposure got chloracne and the others did 8 not? That's nearly 50 percent. Doctor, Isn't It? 9 A What 1 described was ,,that 55 percent of the heavy 10 exposures had chloracne. 11 Q Tes; 12 A Twenty-four percent of the moderate exposures had chloracne* 13 Q Right* 14 A Sixteen percent of the minimal exposures had chloracne* 15 Q Go ahead, I 'm sorry._ 16 A Well, then, of those vho were defined as not having 17 exposure, there was a three percent increase* 18 Q How, Doctor, you said that 55 percent had chloracne* It 19 would follow that the 45 percent did not? 20 A That's right* 21 Q Sir? 22 A That's correct. 23 Q How, Doctor, these people, both sets of people are In 24 the group that had heavy exposure, correct, sir? 131 1 A By the definition that they used here* yes. 2 Q All we're going on la what they said here. You have 3 no Independent facts, sir? 4 A That's correct. 5 Q So nearly half of th$ people had that had the heavy 6 exposure, more than half the people that had heavy exposure got 7 ehloracne and the other half did not, correct, sir? 8 A Yes. 9 Q Bov, doesn't that Indicate, Doctor, that there la no 10 dose response shoved there If half get It and half not vlth the 11 same exposure? You had tha same doae, half of them got It and 12 the other half didn't get it, isn't that correct, Doctor? ' 13 A That does not-* - 14 Q Excuee me, Doctor that correct? 15 A That half got It and,hal did not? 16 Q Yes - 17 A Yes. - 18 Q And they had the same dose, didn't they, sir? 19 A He really don't know what their dose was 20 Q Bo, Doctor, we do know. He know what Is described 21 that document that they had the same exposure, they vorked side 22 by side, that's what we know, Doctor don't w e , sir? And that's 23 all ve know. 24 A He have four categories 132 1 Q Doctor end ve will get to the other categories. On 2 the heavy exposure group they had the same exposure so far as 3 that .document shows didn't they sir? 4 A As far as this document shows yes. 5 Q And that's all the knowledge you have, correct sir? 6 A That's right. 7 ,Q And half of them a little more than half of them got 8 ehloracne and a little less than half of them did hot get 9 chloracne, correct, sir? 10 A That's right. 11 Q Now, sir, is that whqt you call a dose response, same 12 dose and completely opposite reactions, is that a dose response by 13 your definition. Dr. Dost? 14 A It certainly is. ^ 15 Q Doctor, what you are ,,saying then is that dose response 16 means no-- 17 A No, sir, I am not. 1 18 Q If you have a dose, you may or may not have an effect 19 because that's what occurred, isn't that correct, sir? 20 A No, sir. 21 Q That's exactly what qccurred, Dr. Dost. They all had 22 the same dose, didn't they, sir? 23 A They had a similar do.se. . 24 Q Some reacted, correct. sir? l 133 1 A Yes. 2 Q And some did not? 3 A And that vlll be true of any dose. 4 Q Isn't that correct, air? 5 A Yea. 6 Q That's exactly tha fact, isn't It, sir? 7 A Yes 8 Q The half that did not. get chloracne did not respond to 9 the does, did they, sir? 10 A Ho. 11 Q 12 sir? Thera was no dose response In their Instance, was there, 13 A Yes, air* 14 Q Oh, did they gat chloracne? 15 A That Is not the definition of dose response* 16 Q What Is the definition of dose response, Doctor? 17 A You are suggesting to me-- 18 Q Ho, what Is the definition of dose response. If that Isn't It? 19 A As you Increase tha dose you Increase the response or 20 you Increase the frequency of response or you Increase the degree 21 of response, and In this case, as the dose was Increased, tha 22 frequency of response was Increased* 23 Q Your definition of dose simply Is If you get more dose 24 you are going to have more affect? 134 1 A Precisely. 2 Q Doctor, that wasn't true of a substantial group of 3 people here. A substantial group of people got a heavier dose 4 than the other people, and they did not get a response, isn't 5 that right, sir? 6 A That's right. 7 Q So there was no dpse'.response there, was there, sir? 8 People that had minimal exposure got chloracne, whereas other 9 people that had heavy exposure did not get chloracne, isn't 10 that correct, sir? 11 A According to the categories here-- 12 Q Excuse me, isn't that correct, sir? 13 A According to these categories, yes. 14 Q And what that means, Doctor, is that some people react 15 one way and othar people react in a different way to tha same 16 toxic substance, isn't that correct, sirf 17 A A different way, not so, sir. They do not react 18 necessarily in a different-- with different effects, they are more 19 or less sensitive. 20 Q Well, that's exactly .what 1 have been asking about, 21 Doctor The sensitivity varies from person to person, same dose, 22 exactly the same dose, some people will get ehloracne and other 23 people will not, correct, sir? 24 A If that dose Is intermediate, yes* If it Is a very high 135 1 doss, everybody would perhaps gee It 2 0 Doctor, ve have got a heavy dose right here sod 55 percent 3 of the people got It and 45 percent did not. By definition, heavy 4 dose, sir* 5 A Well-!-- 6 Q And this la all the information we have, isn't It, air? 7 A Tee. 8 Q Tea. Nov, Doctor, you also mentioned about this 9 bentonite. Too told us that bentonite was diatamateouo earth 10 yesterday, and today you tell us It Is not, correct, sir?' 11 A I corrected myself, yes*. 12 Q Would you ansver my question yes? 13 A Yea. , 14 Q Doctor you were corrected by somebody else, weren't 15 you, sir? 16 A Ho, sir, I wasn't. 17 Q Who told you that It .was not dlatamateous earth? 18 A ,1 realised after I left the courtroom and 1 went Immediately .19 and found a dictionary and clarified-- 20 Q Did you have a conversation with your lawyers, with these 21 lawyers about that point. Doctor? 22 A No, sir, I didn't. 23 Q They didn't suggest to you-- 24 A So, sir, as soon as I said it, Z became concerned that I 136 1 had misspoken* 2 Q How, Doctor, this misspeaking of yours, that's no 3 lllumlnous silicate, does that make any difference la your 4 opinion as to vhat took place last nlghtT Tour opinion happens 5 to be the same, doesn't it, sir? 6 A Well, my overall opinion Is yes, we were speaking about 7 vhat would be the effect of water on bentonite, and that caused 8 me to get concerned about my definition. 9 Q Doctor, does the lllumlnous silicate present an 10 Impermeable vapor barrier? 11 A 1 don't know whether .or not It Is absolutely Impermeable, 12 but it Is going to be rather tight. 13 Q Doctor, have you had .an experience with lllumlnous 14 silicate? 15 A Ho. 16 Q Have you done any reading about lllumlnous silicate? 17 A All X know Is It takes up water and swells. 18 Q All you know is you have read It In a dictionary. 19 A X have never used It, correct. 20 Q The answer to my question Is.that's the total experience 21 you have had with It? 22 A I have read other things, but they say essentially the 23 same thing 24 Q Is your answer to my .question Is that's yes, that's your. 137 1 total knowledge of It la what you have read In the dictionary? 2 A Tea X think ao. 3 Q So va could read a dictionary and draw our own conclusions 4 couldn't va sir? 5 A Tea ^ 6 Q And you have no knowledge whether It would or would not 7 keep a gas vapor from rising would you? 8 A Not direct knowledge, no* 9 Q Doctor you haven't got any indirect knowledge you 10 haven't worked with It In the laboratory or any other place 11 have you sir? 12 A No* , 13 Q And you haven't read,anything other than the dictionary 14 correet air? 15 A Well I have in pait.times, that's one of the reasons 16 X became concerned about my definition beeauae X remembered 17 things that I had read at other times* 18 Q Doctor other things .that you had read In past times 19 you had forgotten it and you had to look It up and learn It all 20 anew? 21 A Certainly remind myself yes sir* 22 Q All right* Now Doctor you indicated earlier that 23 Dr* Moses in this 908 study X think the words yon used was that 24 there was some slippage of exposure correct air? 138 1 A I recall that, yes* 2 Q Doctor, in point of act, the Moses/Sallkoff study 3 highlights and emphasizes, in effect, underlines that the people 4 without chloracne are not unexposed controls, don't they, sir? 5 A Tea, they make a statement-- 6 Q Excuse me, my question Is, Is they emphasised It, they 7 underlined It, didn't they, sir? They Italicised It* 8 A I remember that some place. Could you point It out 9 to me. 10 Q Well, it Is on Page 170. 11 A Yes, as .a matter of act, X read that earlier In the 12 day* 13 Q And, Doctor, there isn'ta single other place In this 14 article where they emphasise or Italicise like they did la that 15 Information, Isn't that correct? 16 A Yea, that's correct K 17 Q Now, that can't hardly be called "slippage", cen it, sir, 18 when the only.thing in the entire article that's emphasised la 19 the fact that the people without chloracne are not unexposed 20 controls, Isn't that correct, sir? 21 A That's correct* 22 Q What they're telling_us, and what they mean to communicate 23 to us is the salient fact that there were workers that have a 24 work exposure history at Nitro, they cannot be an unexposed control 139 1 simply because they do not have chioracue. Isn't that correct 2 Doctor* 3 A Tea. 4 Q Now Doctor lnsotsr.es the mortality rate I'm sorry 5 before I get to that you talked about controls. You need to have 6 a-- compere It with a group of people who live in the same town or 7 In the same area that don't work In a chemical plant do you 8 recall that air? 9 A Yea. 10 Q Point of fact Doctor don't we have controls already 11 for everybody that's afflicted with any disease in every 12 community In this country? 13 A Not really* 14 Q Doctor don't we have what's called laboratory controls 15 for each specific test? 16 A Yes. 17 0 Now Doctor isn't that a control group for each specific 18 test the laboretory controls? 19 A Not-- no, sir. 20 Q Now, Doctor, ere you^famlliar with how.the laboratories 21 get. their values? 22 A Yes, X am. 23 Q You know they do go o.ut and take people from the community, 24 don't you, sir, and run teste on these people? 140 1 A No, they don't do that generally* sir 2 Q Now, Doctor* you don'^t know that they do that? 3 A They develop a statistical pattern, of all of the analyses 4 that they do. They don't go out and recruit people to cone In 5 and have blood work done* for example. There may be laboratories 6 that do that* but the general practice la for a laboratory to 7 maintain a statlaclcal background for all of the assays that It 8 does. 9 Q Well* Doctor* they do that* but they also run controls 10 as well* do they not* sir? 11 A They generally rely on historical controls. They rely 12 on* if you will* textbook information and so on. 13 Q Doctor* you don't know that* for instance* Mayo's has 14 controls for Its porphyrins* you don't know that* sir? 15 A I wouldn't be surprised that Mayo may. 16 Q And you don't know that all the laboratories that work 17 In Immune studies also have controls? 18 A The laboratories that: I am familiar with do not run*, 19 the clinical laboratories* the research laboratory would run 20 controls. 21 Q Well* Doctor* even aside from that* how they get their 22 I data* they do have a control group to compare the other data 23 with* don't they* sir? 24 A Tes* they have their .historical controls. 141 1 Q The ones with historical controls nay consist of 2 thousands of people, won't it, sir? 3 A Yes, 4 Q And that is Indeed a ,,control group, isn't it, sir? 5 A For a given test, yes,. 6 Q Yes, How, Doctor, Insofar as the mortality rate, 7 you mentioned insofar as the workers at Mltro ware concerned 8 In this valley that you have, that there Is something Intrinsic 9 In that region and nobody knows what it is, ve have no way of 10 knowing what It might be that's causing this high cardiovascular 11 disease rate, correct, sir? 'f 12 A It Is slightly hlgheir than the national average, yes* 13 Q Is the answer to ay question yes, ve have no way of 14 knowing? 15 A Yes, sir, 16 Q Now, Doctor, do you know ,,that that valley is called 17 "Chemical Alley" or "Chemical Valley" by some people, don't 18 you, sir? 19 A Yes, sir* 20 Q There Is a lot of chemical plants there, Monsanto has a 21 very large plant there, doesn't It, sir? 22 A Yes. 23 Q And other companies as well? 24 A Yea 142 1 Q And, Doctor, it could, ba that the emissions from these 2 plants, the toxic substances being emitted from these plants 3 could contribute to causa this higher mortality rate from 4 cardiovascular disease, couldn't it, sir? 5 A Yes, It could. 6 Q And, Doctor, It could he the dioxins emitted from the 7 Nltro plant could play a role in this higher mortality rate, 8 correct, sir? 9 A I would doubt it. You say it could he If ve use that 10 language. 11 Q That's the language used. 12 A Since ve cannot Bay that It does not, yes. 13 0 And, Doctor, it la known that chemicals can cause 14 cardiovascular heart disease, that's a known fact. Isn't It, sir? 15 A Well, certainly chemicals can, 1 think. 16 Q And, Doctor, can it qot he that the higher mortality 17 rate in this valley, including the Kltro workers, Is because 18 the chemical that these people are living in this valley have 19 been exposed to? 20 A Well, you aey "can it not be", I think that, yes, I can't 21 answer it In the negative. 22 Q Doctor, la there anything about the lifestyle of people 23 in this valley that would be ,different to your knowledge from 24 the lifestyle of anybody else that could cause this Increased 143 1 mortality cate from cardiovascular disease? 2 A I am really not familiar enough to say* 3 Q Doctor, you have been there. 4 A I have been there, but I can't -- 5 Q You've walkad the streets, have you not, air? 6 A Yes. t - 7 Q You testified in Court there* 8 A Yes. 9 Q You have eaten there,, you've slept there, you've stayed 10 there for weeks at a time* 11 A 1 have been there for a few days, yes* 12 Q Is It for weeks at uptime? 13 A No, I don*t-- possibly one week* 14 Q Dr. Dost, you are familiar with their lifestyle as much 15 you can be with that limited sojourn, isn't that right, sir? 16 A From that very limited sojourn, X can't tell a thing 17 about them that's different. 18 Q That's correct 19 A They have a different, accent. 20 Q Sir? . 21 A They have a different accent than we have at home. 22 Q What you can tell. Dr. Dost, Is that they live--their 23 lifestyle la much the same or If not exactly the same as the 24 rest of us, correct, air? 144 1 A To the extent of my knowledge, that could he correct. 2 Q They have McDonald's they have Kentucky Fried Chicken, 3 they have Bonanzas, they have all of the same kind of eating 4 establishments that ve have here In St. Clair County, don't they, 5 air? - 6 A Yes, I presume. 7 Q And you saw nothing about their lifestyle that you could 8 put your finger on or even come close to saying was the cause of 9 this Increased mortality rate. Isn't that correct, sir? 10 A That's correct. 11 Q The only thing that you do know that is different In 12 that valley from the rest of the country is the presence of 13 these chemical plants, Isn't that correct, sir? 14 A Well, there are othey parts of the country that have 15 similar, but that Is all 1 know about, yea. 16 0 There are other part$ of the country Chat have chemical 17 plants as well, isn't that right, sir? 18 A Yes 19 0 The people that llve^ln Rush City, Illinois have a 20 chemical plant right next door to them. The people that live In 21 Bast St. Louis have a chemical plant right next door to them on 22 the sides of them, they have them In Washington Park, they have 23 them In Sauget. 24 A I know that there are many plants around. 145 1 Q nd, Doctor, there a^e higher cardiovascular disease 2 rates In any place that's not a large number of chemical plants, 3 isn't that correct, sir? 4 A That I don't know, air. 5 Q You don't know that?,. 6 A No, sir. 7 Q Have you looked for it, Doctor? 8 A No, sir, I have not. 9 Q And, Doctor, insofar a the people inside the plant and 10 the people outside the plant, if you don't know right now front 11 this study whether the people at Hltro have a higher or lover or 12 the same cardiovascular death rate aa the people outside the plant 13 in that valley, do you, sir? 14 A On the basis of the information I have, I don't know 15 yhat the relative rates are. 16 Q So It could be as fat as what you know Is that the heart 17 disease rate on the people within the plant Is higher than the 18 heart disease rate or death rate of the people outside the 19 plant, correct, D r . Dost? 20 A On the basis of the information In this paper, t don't N 21 know. It Is-interesting that they state that the Incidence of 22 heart disease In these people Is slightly but not significantly, 23 not statistically, significantly different from the rate In the 24 country at large, and they also point out that the State of 146 1 Hist Virginia haa found that there is In fact a statistically 2 different rata. 3 Q Whore does it say that Doctor? Where does it say that? 4 You are Just putting that In there aren't you Dr. Dost? It 5 doesn't eay that at all. 6 A I don't know whetherit says "statistically different" or not. 7 Q Wo you said that' it ,,says it hut It doesn't aay that. 8 Look on Page 178 Dr. Dost. 9 A "Mortality from cardiovascular disease Is known to be 10 higher than national rates in the Kanawha Valley where the plant 11 is located." 12 Q And It doesn't say statistically significant does It sir? 13 A Ho you're right. That's correct. 14 Q And Doctor whether,,they're higher or lower It could 15 be that tha people in the plant and the people In the valley ere 16 having their heart trouble from the chemicals to which they are 17 respectively exposed Isn't that eorract sir? 18 A You say It could be .knowing nothing else--* 19 Q Doctor-- 20 A That could be. 21 Q You cited Seveso as an example of a dose response did 22 you not sir? 23 A I don't remember. 24 Q You don't remember Helneman asked you about Saveso Italy? 147 1 A He asked me, I believe, If there was chloracne at 2 Seveso, and Z said that yea, there was. 3 Q And you said yes, there was. How, that statement, if 4 we didn't know, have any other information, would stake us 5 believe that the people at Seveao all had chloracne, wouldn't 6 it, sir? 7 A Not necessarily, no, ,,.sir* 8 Q Doctor, In point of fact you know that very few adults 9 got chloracne and only sixteen percent of the kids got chloracne, 10 you knew that? 11 A That's correct, 12 Q And when you said that-- -when Hr. Helneman asked you 13 that question, you knew that there was a very low rate of incidence 14 of chloracne at Seveso, dldn^t you, qir? 15 A Yes, * 16 Q And all those people ,,were exposed to this, weren't they, 17 sir? Just a very small percentage got chloracne, 18 A Yes. 19 Q And that Indicates again, sir. Just as shown in the Hoses/ .20 Selikoff study that some people can be exposed to a substance 21 and react one way and other people exposed to the same, substance 22 and the same doses don't react that way, isn't that correct/ sir? 23 A At a given exposure,^yes 24 Q Nov, Doctor, talking ,,about Dr, Schroy's work that you and 148 1 Mr. Helneman vent back Into, you still got Plaintiff's Exhibit 2 1413 there? 3 A Yes, I have it, v 4 Q And there vas some discussion about DDT? 5 A Yes* 6 Q Would you look at th% very first, the page numbered 1 7 on Exhibit 1413? 8 A Yes* 9 Q Schroy says, does he,,not, that the vapor pressure of 10 DDT and TCDD are not Identical but they are similar? 11 A Yes* 12 Q Does he also say that the environmental mobility of 13 TCDD should be similar to DDT? 14 A Yes* 15 Q And vhat did ha say earlier was the cause of the environmental 16 mobility of DDT, Dr* Dost? 17 A Be spoke about the volatility* 18 Q Yes. 19 A Of TCDD. ,, 20 Q ThatTs exactly what said, didn't he, sir? 21 A Yes 22 Q And he aaye the same .thing here, doesn't he, sir? 23 A I am not really sure ,,that he is saying the same thing here* 24 Q Mow, Doctor, he testified in this case that he believes 149 1 the world wad contaminated with DDT because It was volatile, 2 you recall that, sir? 3, A Yes# 4 Q We went Into that? 5 A Yes# 6 Q And he is testifying ,,here, not testifying here, his 7 study here he says the environmental mobility of TCDD should he 8 similar to DDT, doesn't he, sir? 9 A Yes, he is saying thqt 10 Q Environmental mobility scans how it moves In the environment, 11 doesn't It, sir? 12 A Yea. .. . 13 Q And Isn't he saying t.hat If DDT contaminated the world 14 because of Its volatility, because of Its particular kind; of 15 mobility that TCDD has the similar or the same, similar kind of 16 mobility? 17 A I really don't think.4he Is making that broad a comparison, 18 sir# 19 Q Doctor, he says exactly that. He says, "Thus, the 20 environmental mobility of TCDD should be similar to DD7," end 21 of quote, doesn't he, sir? 22 A Yes. 23 Q I didn't add a word there? 24 A Ho, sir 150 1 Q He is saying that thy should be similar, isn't he, air? 2 A Tea, 3 Q And he says that several investigators shoved that DDT 4 ia mobile in the environment because of vhat, sir? 5 A Vaporisation* 6 Q - And vhat is it that he is saying that is similar to 7 . DDT? 8 A Be Is saying that the. environmental mobility of TCDD 9; should be similar to DDT* 10 Q And he demonstrates in this study, does he not, sir, 11 that it Is? 12 A In this,study, he is .speaking of the transport of TCDD 13 in soils and is comparing it to DDT.. 14. Q He is talking about the transport up into the environment 15 through vaporisation, isn't h, oir? , 16 A Veil, he is talking shout how it behaves In soil*v 17 Q Nov, Doctor, this three pages here, he says,concludes, 18 "Thus TCDD should be mobile, via vaporisation, in the environment," 19 doesn't he, sir, on the nest page? 20 A Tes, he says that* 21 Q Nov, Doctor, that vaporisation In the environment is in 22 our environment, isn't it, sir? 23 A Presumably. ,, 24 Q And he Is saying that TCDD should be mobile by the fact 151 1 that It le vaporized la our environment doesn't he air? 2 A fie Is drawing a comparison, he Is making a prediction. 3 Q Well, and his study l\e comes out and says his model 4 proves his prediction, doesn't he, sir? 5 A Well, In his study hi* model describes the movement of 6 TCDD in soil In a soil matrix. 7 Q Now, Doctor, doesn't_he conclude that this modal fits 8 the volatility of DDT and TCDD? 9 A Yes, in the soli. 10 Q Yes. Does he say In^any.place here that TCDD will act 11 differently in the soli or In the atmosphere than DDT? 12 . A Well, he Is not discussing the atmosphere, really, 13 except as he, In fact, he Isn't discussing the atmosphere, I 14 don't believe he Is talking really about soil. 15 Q Doctor, Che whole pur,poso of this study, according *to 16 his background notes, Is to show what's going to happen to\DDT 17 because it Is a vpaor, that he spends three pages discussing. 18 The only background he gives is discussing the vaporization 19 through volatility, isn't that right, air? 20 A Yea. x 21 Q And he concludes that his model supports his theories In 22 the background, doesn't he, sir? 23 A Yes, In the soil, that's what he la looking at. 24 Q Doctor, does he anywhere^s*y that It will act differently 152 1 In the atmosphere than the DDT? 2 A No sir. . 3 Q Doesn't he say that TCDD should be mobile via vaporisation 4 in the environment? 5 A He say it should be. 6 Q And hasn't he said that TCDD, that Nash-and Beale have 7 demonstrated that TCDD is volatile in laboratory microcosm and 8 field experiments? 9 A Yes. 10 Q And they measured the TCDD in the air, Nash and Beale? 11 A Yes. ./ 12 Q Xn the form of vapor, correct, sir? 13 A Well, they used the tacn vapor, yes. 14 Q Nov, Doctor, are you--you made-- your Honor, I've got 15 past ten 'til five. 16 THE COURT: Gentlemen, could X see you at the bench 17 for a minute, please? 18 (An off-the-record discussion was held 19 at the bench.) v . . 20 THE COURT: Okay. 21 BY HR. CARR: 22 Q You've made a number pof statements about the volatility 23 in the ballast or that Eglln is like Sturgeon ballast. Doctor, 24 the material at Eglin was burled, wasn't it, sir? 153 1 A Very B a n d y . 2 Q Did you understand my question, Dr. Dost? The material 3 it Eglla was burled? 4 A Excuse me, sir, I did not hear your question correctly. 5 Ct was burled, it vas placed on a dugout and covered. 6 Q And the material at Sturgeon and at Times Beach was not 7 curled, was it, sir? 8 A I do not Itnov about times Beach, other than what I have 9 10 Q Doctor, In Timas Beaqh, the material vas sprayed on the 11 surface. So you don't know anything about Sturgeon other than 12 hat you vould have told,.either? 13 A That's correct. 14 Q Sow, Doctor, you werq given a long hypothetical question 15 about the fact that dirt was removed In this cleanup, were you 16 told that In the passing track, sir, they found 92,000 parts per 17 nillion of OCP right In the middle of the passing track after 18 they removed all this dirt, after they did all this removal that 19 Ur. Helneman told you about? 20 A This vas after the thaw, yea, there was one pocket-- 21 Q Oh, one pocket? Is that what you were told? Did somebody 22 tell you-- 23 A X saw the data. 24 Q Doctor, are you answering questions that Hr. Helneman gave V 154 1 you on what hi gave you or on independent research here? 2 A Veil X have seen** t 3 Q Could you ansver my question Doctor? 4 A Veil all of ay date .relative to Sturgeon Is provided 5 through the attorneys. 6 Q I'm-- directing your attention to the hypothetical 7 question that Mr. Heinean gave you relative to the cleanup. 8 A Yes. 9 Q Dr. Dost you understand that if you're answering questions 10 that he's giving you that way or on other facts that are not In 11 that hypothetical question I have no way to cross exaalns you 12 on it except what's In that hypothetical. How did he not tell 13 you In that hypothetical did he sir that the passing track 14 still had 92000 parts per million of OCP In It? 15 A I don't raneaber. X^don't believe that was In the 16 hypothetical. 17 Q And he didn't describe the passing track area as a pocket 18 did he sir? 19 A No sir. 20 Q And then your understanding Is that this contamination 21 waa just in a pocket soma place and Is that the reason you 22 gave this answer that you did? 23 A It was a single spotvhere that concentration was observed. 24 Q And Is the answer that you have given to the questions 155 1 that you-- the nsvtr that you have given to Mr. Helueman based 2 upon your belief that It was a single spot? 3 A Wall that vas what the analytical data showed. 4 Q Then le the answer to my question yes that it is based 5 upon your belief that It was a single spot? 6 A Tea. 7 MR* CARR: Your Honor, I would move to strike his answer-- 8 THE COURT: Gentlemen, could you approach the bench, 9 please? 10 (Tha following conference was held at the bench.) 11 MR. CARR: He now says that he responded to Mr. Helneaan'a 12 hypothetical based upon his belief that It vas In a spot, and 13 I submit that I have absolutely no way of cross examining the 14 witness If he la going to ,,answer questions based not on the 15 hypothetical given but on,exhibits that he's looked at and studies 16 that haven't otherwise been identified. 17 THE COURT: Which specific answer or answers are you 18 talking about? 19 MR, CARR: That there, wouldn't be any material there to 20 volatilise. Let's see, exactly what all did he ask him about? 21 Maybe rather than etrlklng, I just better ask him questions 22 because the jury won't-- they will remember what he said, but they 23 won't remember because of the lateness of the hour what it was 24 that was stricken 156 1 THE COURTs Fine 2 (The following proceedings were held In open Court.) 3 HR. CARR: I withdraw that Motion, your Honor. 4 THE COURT: Motion iq withdrawn. 5 BY MR. CARR: 6 Q Doctor, the date that TP** got. what was It In the fore off 7 A Veil. I seen a variety of analytical data, sampling data, 8 that waa taken at different times In that area. 9 Q And It Is your belief, that baaed upon that data that 10 there waa just a one sample tested that found a pocket of OCP II after the cleanup took place? 12 A Ho. sir. not quite. ,,There was OCR found at various levels. 13 There was only, as I recall, that one place where there was a 14 high concentration. 15 0 Doctor, didn't y o u r e a d . d l d you get the soil sample book 16 where there Is concentrations of 29.000. 30.000. 15.000 parts 17 per million of OC? In the phenolsf You didn't see those? 18 A That was after the first cleanup and after the thaw 19 began, as I recall. And that was. I believe, the reason why 20 the second cleanup was undertaken. 21 Q That's right, Doctor% The entire passing track and other 22 areas besides had never been.cleaned and they found those 23 levels of OCP and phenols there, didn't they, sir? 24 A Down In the soil, yes.. 157 1 Q All right. Now, Doctor when you answered the hypothetical 2 that Hr* Helneman gave you did you assume that the second cleanup 3 had already taken placet 4 A 1 assumed that most qf--I think I used the term that most 5 of the material had been removed* 6 Q My question la* did you assume that the second cleanup 7 had taken placet 8 A X don't believe X had. 9 Q And you assumed all these contaminations that were there 10 then that you saw on this data assumed that all that tract vat 11 thuely contaminated didn't you air? 12 A X*m trying to remember the hypothetical* 13 Q And that's the problem, you are answering the hypothetical 14 but. you have In mind other data that you saw and we don't know 15 what It Is you ate basing your answer on* Now when you answered 16 the hypothetical question* did you have in mind that the 17 contaminated soli was all removed or not? 18 A 1 had In mind that most of the contaminated soil was 19 removed and there was still some material remaining. 20 Q And how much was that some material that was remaining? 21 A I suspect five percent. 22 Q Five percent of the material remained? 23 A Mr, Gilmer of the KPA, as X recall* said that 99 percent 24 was removed* I had assumed 95. 158 1 Q You ore talking about Hr* Gilmer's statement In March 2 of *79 correct* sir? 3 A Yes* , 4 Q Dr* Dost, that's what the SPA did say In March of '79* 5 that'a what the government officials said exactly like you aay* 6 but nov after that* Dr. Dost* and the answer to the question that 7 you gave to Hr* Helneman vaa based upon your belief that 99 percent 8 had been removed* I take It? 9 A Sir, I had-- 10 Q Ninety-five percent \a.d been removed? 11 A I had two hypotheticale 12 Q Excuse me* Could yoq answer that question* Dr* Dost? 13 A Yea * 14 Q And* Doctor* the TCDQ that vac In the soil In April* 15 In April of '79 that was not removed could volatilize* couldn't 16 it* air? 17 A In the sense of moving in the soil slowly* yea. 18 Q Doctor* It could vola.tillse from the top layer of that 19 aoll that had trapped It* couldn't it* sir? 20 A If there vaa any right at the top* that would be possible* 21 Q And* Doctor* you're still assuming that what Harry Gilmer 22 said was correct* that 99 percent or 95 percent had been 23 removed* right* air? 24 A Zn respect to the question you're asking* that wouldn't 139 1 really matter. 2 Q Doctor, would you listen.to ray question end answer It* 3 please* sir? Are you still assuming that as Hr. Gilmer stated 4 in March of *79 that 99 percent* or as you have assumed* 95 5 percent was removed? 6 A Ho* sir* because X had also been asked a hypothetical that 7 assumed there had been no cleanup, and ray conclusion-- 8 Q I'm talking about the one where you were giving the cleanup 9 but there was 95 percent raaoved? 10 A I don't recall whether X .was using a figure. X had mads 11 the assumption that most of the material was gone and I don't 12 think that X really assigned that percentage. X just don't 13 remember It. 14 Q How* Doctor* are you^awars of the time that after this 15 99 psreent pronounced by the EPA clean bill of health took place 16 that tha fish in the Keraner pond died and the fish in Saling 17 Creak died for miles and miles around Sturgeon? 18 A Yes. 19 Q And you are aware of ,tbe fact that they removed tons, 20 and tons of dirt after that* sir? 21 A Yes. 22 Q You are aware of thejfacq that they found the passing 23 track contaminated for 300 feet or better in the area where it 24 spilled in the ditches alongside and the area between the paaalng 160 1 track and the main track contaminated? 2 A With 0CFt yes* 3 Q And, Doctor all of that took place after Harry Gilmer 4 pronounced a clean bill of health, are you avara of that, air? 5 A Yes. 6 Q Doctor, hov can you conclude that 99 percent of It vis 7 removed? The figures that Harry Gilmer went on had nothing to 8 do with the removal of the dirt subsequently hla information 9 came only in the first dirt removing* He didn't say that after 10 that In 1980 when the cleanup finished. He aald that before 11 the second cleanup ever started, aren't you aware of that? 12 A Yes* 13 Q And, Doctor, the ballast .that was poured on top of the 14 contaminated dirt in the passing track, that would not prevent 15 the vapor from rising, would it, sir? 16 A According to Dr. Sch^oy it would move about the same 17 as it does in sand* ,. 18 Q Where did Dr. Schroy .say ..that? 19 A He made the statement it would move, it would behave 20 similarly to the way It behaved at Hglln* 21 Q You believe that he ^aid that. Dr* Dost? 22 A I believe that it was in his testimony. 23 q And do you believe that It is true, sir? 24 A I think that it would move similarly* 1 think that 161 1 possibly there might be some difference in rate, but the same 2 physics would apply. 3 Q How, Doctor you know the ballast is not sand you know 4 that don't you sir? 5 A It is coarse yes sir 6 Q And Doctor you alsq, oh, you don't know, you believe 7 that all of the TCDD would go right down with solvent? 8 A When It first spilled* it vould go down with the 9 solvent. 10 Q You are not aware of ,,what the University of Missouri v 11 discovered In that aspect? 12 A Oh, yes I certainly .am, 13 Q What did the University of Missouri say? 14 A They put TCDD in a sqlvent, small amounts. 15 Q Excuse me. My question is what did they conclude? 16 A They concluded that the soil vould remove TCDD from a 17 solvent but they used very small amounts of solvent, and I 18 would expect the TCDD to come out very readily In the kind of 19 experiment they conducted. 20 Q How, Doctor, they weren't;-- do you agree with Dr. Schroy 21 where he said that the University of Missouri study said that 22 the first inch and a half of the soil would take up all the TCDD 23 contaminant? 24 A Wall, in the experiment they did, that's true. It is a 162 1 different situation 2 Q Veil then, you disagree.with Dr Schroy!s statement that 3 it is not a different situation, is that right, sir? 4 A I don't know whether.Dr. Schroy said it would behave-- 5 Q Mr. Schroy. 6 A Mr. Schroy said it vquld .behave exactly the same way In 7 the track as it did In that soil column. 8 Q Doctor, he testified that the University of Missouri 9 etudy shoved it would go down about three centimeters, a little 10 over an inch, and that all the TCDD would remain in the top three 11 centlmeeers and the solvent would keep on going. 12 A Yes, in that experiment that they did, that's true. 13 Q And, Doctor, what experiment have you done to suggest 14 that: in the OOP situation It would go with the solvent? 15 A Z haven't done experiments on TCDD In the soil, but 16 the amount of solvent. 17 Q Dr. Dost, what X am asking you, have you done any work 18 to say that the University of Missouri work doesn't apply to 19 Sturgeon? 20 A Well, I think that simple physics would say that It 21 doesn't. 22 Q Doctor, would you answer my question, please, sir? 23 A No, I have not. 24 3 Doctor, you know Dr.^Schroy has done the work-- -or Mr. Schroy X63 1 and Dr. Freeman have done the work and you know the University 2 of Missouri has done the work and University of Missouri say 3 and Mr* Schroy interprets what they say aa saying that when the 4 TCDD la In a solvent the top Inch and a half la going to catch 5 the TCDD and you differ with that based upon no work of your 6 own is that right Dr. Dost? 7 A I differ with it with respect to Sturgeon yes sir* 8 Q Based upon no work of your own? 9 A That*a correct. 10 Q Doctor if the University of Missouri is correct and if 11 Mr* Schroy is correct all the TCDD is there in that top layer 12 of soil aren't they sir-- isn't it. sir? 13 A I don't thinkthat's what Mr. Schroy said* If he said 14 that It would behave in exactly the same way that Missouri study 15 than 1 would praauae that that would be true. 16 Q How Doctor don't you recall that Mr* Helneman read 17 you the question read from the very pages "QUESTION: So far 18 as Sturgeon is concerned baaed upon your studies if ve had 19 cold weather in January and February,started warming up in March 20 April May that's when the TCDD would start volatilizing that'a 21 In this top layer of soil" do you recall that* sir? 22 A Tea* 23 Q And the answer was "The rate would Increase probably 24 about June would be when it *;oul4 really start causing problems 164 1 rhen It really starts to get hot.*' Do you recall that sir? 2 A Tea. 3 Q And you do recall that he agreed that the TCDD would be 4 La the top layer of soil don't you sir? 5 A I'm sorry, but I don',,believe that he said that the 6 FCDD at Sturgeon would stay Inthe top. In the top layer. He 7 ran describing the physics of the situation In Missouri where 8 there was a small amount of solvent* 9 Q Doctor, where did yoq ever say that the Missouri study 10 ras not valid for Sturgeon? 11 A I don't recall that hesaid it was not valid. It 12 Lllustrated the effect of soil on TCDD In the ideal situation. 13 Q And, Doctor, then he .vaa asked how it would act at 14 Sturgeon* Do you recall that, sir? 15 A I don't recall what said. 16 Q Doctor, he was asked .the question about the TCDD would 17 start volatilizing In the top layer of soil. 18 A Yes, i recall that. , 19 MR. HEIHEMAH: What page,, counsel? 20 MR. CARR: The one that you read, counsel, on Rage 108. 21 A 1 am curious what Dr, Schroy said, or Mr. Schroy, said 22 about the behavior of TCDD as it moves into the soil in a large 23 amount of OCP as the situation was at Sturgeon. 24 Q Doctor, he agreed that the OCP was a solvent, I think 165 1 that's what ha said* Does that answer your question? 2 A That describes the solvent* 1 am not sure what he 3 said with respect to material moving through the soil 4 Q Doctor it will go through the soil faster if It la 5 a better solvent won't it sir? 6 A It may but It depenhs on the amount of the solvent 7 and the flow rate* 8 Q Well Dr* Dost* on th*t point you have absolutely 9 nothing to counter what the University *of Missouri says about 10 the OOP and the flow rate or anything else* Isn't that right sir? 11 A Well their experlmsqt was with different solvent, and 12 X believe that their experiment la correct* 13 Q You believe it la correct? 14 A Yes* , ` 15 .Q And the top inch and .a half would contain the TODD? 16 A X question that very .strongly * 17 Q But Doctor, you just got through saying it was correct. 18 A I don't think that the Missouri experiment applies to 19 a massive amount of OCP and a very minute amount of TCDD moving 20 through a soil column* 21 Q Doctor, do you have anything .at all to base that judgment on? 22 A Only some basic physics, only my experience with 23 chromatography columns* 24 Q Chromatography columns? 166 1 A It Is the sane principle. 2 Q Doctor, this Defendant's Exhibit 1148, do you still have 3 that, sir? 4 A Tea, I have. 5 Q Tou referred to Table 3 did you not, sir? 6 A Yes. ,e 7 Q Doctor, they discuss^concentrations of TCDD In the air 8 In a shaded outside plot, don't they, sir? 9 A Yes. 10 Q Does that indicate that it Is in the sir there, sir, 11 volatile and not degraded by the sunlight? 12 A Hell, that which they, found, yes, I don't know. It Is 13 in the air, certainly. 14 Q And not degraded hy the sunlight? 15 A The amount that they ,,measured was not degraded. 16 Q Doctor, In thissame work of Schroy's he quotes from 17 Hleure in which Hieure concludes on. Page 8 , If you would look, sir. 18 A Yes ,, 19 Q "That measured losses; of 1,3,6,8 TCDD from soil may have 20 been due to vaporization, the reduction In 1,3,6 ,8 TCDD concentrations 21 In the field soil plots was not due.to degradation or movement of 22 the molecule into the soil column." Do you see that, sir? 23 A Yea, sir. , 24 Q And he cites with approval this statement of Ml&ure's, 167 1 doesn't he, sir? 2 A Tss, sir 3 Q And what Is the half .life that Mleure reported for 4 TCDD In this soil sample sir? 5 A Well, for this TCDD? , 6 Q Tea. 7 A And It would differ, .they report half times of 131 and 8 321 days 9 Q How, Doctor, that Is .Just slightly more than the 36 hours 10 postulated earlier, Is it not, sir, and by slightly more, I mean 11 a heck of a lot more, isn't it, sir? 12 A Tes 13 Q And, Doctor, there 1q not 24 hours of daylight. Is there, 14 sir? 15 A No, sir* 16 Q And the TCDD that comes up In the shady time or when It 17 is under the ballast and rises through the ballast in the gaseous 18 form or the vapor form, It la not subject to degradation by any 19 theory that you know of, is It, sir? 20 A No, sir* 21 Q And the 24-hour a day volatilization or vaporization 22 would be subject to inhalation by people living in that community, 23 would it not, sir? 24 A If It could get Into ,the atmosphere, yes. 168 1 Q Doctor, la there anything to prevent It from getting 2 Into the atmosphere other than loose, porous ballast and wouldn't 3 gas rise through loose, porous ballast? 4 A Gas will move randomly in that ballast and small amounts 5 of it will emerge. 6 Q It will all ultimately emerge, won't It. sir. according 7 to Schroy's theory? 8 A According to Schroy'a, theory. 9 Q And according to Mleure's calculation? 10 A It will take a very, very long time, yes. 11 Q Doctor, do you think ^that^ the 90 percent that he said 12 volatilised In the top one centimeter soil during the first summer 13 was a long, long time? 14 A That was TCDD In oil ,,.that was sprayed onthe surface* 15 Q Yes* , 16 A And he didn't, he said that It vaporized, but the fact 17 la that his model simply shows disappearance, and Ithink It Is 18 very highly likely that mostAof it simply degraded in the sunlight* 19 Q Doctor, you have never done any work In this regard, 20 have you, sir? 21 A No. sir. 22 Q Mr* Schroy has, has he not, sir? 23 A Tea* 24 Q And he says It volatilized, didn't he, sir? 169 1 A He said that, yes. 2 0 And he said 90 percent of it volttlllzed from the top 3 centimeter, didn't ha, sir? 4 A Yes, he vas projecting back. 5 Q Excuse me, Doctor, didn't he say that's what occurred? 6 A Yes, he said that^. 7 Q That's not a very;, very slow rate, Is it, sir? 8 A He said that, veil, he said volatilization. 9 Q Doctor, that's not a very, very slow rate, la it, sir? 10 A H o . 11 Q It is exceedingly fa$t rate, isn't it, sir? 12 A Yes, If It is correct* 13 Q Doctor, do you have any study at all to auggest that 14 it is incorrect? 15 A Ho, sir. 16 Q And when you said earlier that according to Schroy 17 It wouldn't \'olatiliza, you were incorrect, weren't you, sir? 18 A We have bad a problem with a matter of degree. I have 19 never denied that TCDD would not volatilize. 20 Q I wonder If you could direct your attention to my 21 question, Dr. Dost. You testified just a few minutes ago that 22 according to Schroy, the TCDD would not volatilize. That statement 23 la Incorrect, isn't it, sir, according to Schroy it would 24 volatilize, wouldn't It, sir? X70. 1 A I'm trying to remember the context of my original answer. 2 Schroy states that that material volatilized at Times Beach, 3 Q And is the answer to ay question yes, It is correct 4 according to Schroy, it does volatilize? 5 A According to Schroy, ,,It does volatilize. 6 MR. CARR: That1s all the questions I have. 7 MR. HEINEMAH: Mo questions, Judge. 8 THE COURT: Doctor, you may step down. Thsnk you. 9 Gentlemen, could 1 see you at the bench for a moment? 10 (An off-the-record discussion was held 11 at the bench) 12 THE COURT: Okay, ,,and gentlemen, we are going 13 to break for the day at this time and as I remind you that you 14 won't be coming in tomorrow, we will see you Thursday morning 15 at 9:30. Thank you for your attention and cooperation. Court 16 le adjourned. 17 (At this time. Court was .adjourned for the day.) 18 19 20 21 22 23 24 1 STATE OF ILLINOIS ) ) SS. 2 COUNT? OF ST. CLAIE ) 3 4 5 6 7 I, Patricia A. Gandy* CSR, RPR* Official Court Reporter 8 in and for the Twentieth Judicial Circuit and the Official Court 9 Reporter who transcribed the above-styled cause had on December 17, 10 1935, do hereby certify that the foregoing transcript of proceedings 11 is a true, correct and complete transcript of the proceedings had 12 on said date. 13 DATED this 31st day of December, 1985. 14 15 k16 PATRICIA A. GANDY, CSR, RPR u 17 Official Court Reporter 18 19. 20 21 22 23 24