Document xzD4Yn2jkOndVRBoD95KgjYJg

1 vrt. y 1 2 IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF ILLINOIS ST. CLAIR COUNTY 3 FRANCES E. KENNER, et al. 4 Plaintiff, 5 vs. 6 MONSANTOCOMPANY, 7 Defendant. ) ) ) ) ) ) ) ) } No.80-L-970 8 Before the HON. RICHARD P. GOLDENHERSH, Judge 9 10 11 R E PORT OF P R O C EEDINGS 12 JURY TRIAL 13 M a r c h 19, 1986 14 15 16 A P P E A R A N C E S : 17 MR. REX C A R R & MR. JER R Y SEIGFREID, Attorneys at L a w Appeared on Behalf of the Plaintiff. 18 19 MR. K E N NETH R. HEI N E M A N & MR. JOSEPH NASSIF, Attorneys at Law 20 A p p e a r e d on Behalf of the Defendant. 21 22 23 24 MARSHA SCHNIPPER Official Court Reporter / 1 INDEX 2 DR RAYMOND SUSKIND .......... CROSS EXAMINATION BY MR. CARR 3 4 5 6 7 e 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 PAGE 2 1 1 EXHIBITS Page 2 Identified 3 EXHIBITS SUBMITTED ON BEHALF OF THE PLAINTIFFS: 4 Plaintiffs' Exhibit No.: 5 1746A 98 6 1773 115 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page Admitted 99 120 2 1 BE IT REMEMBERED AND CERTIFIED that heretofore, on 2 to-wit: March 19, 1986, being one of the regular judicial 3 days of this Court, the matter as hereinbefore set forth came 4 on for hearing before the Honorable Richard P. Goldenhersh, a 5 Judge in and for the Twentieth Judicial Circuit of the State 6 of Illinois, Belleville, St. Clair County, Illinois, and the 7 following was had of record, to-wit: 8 9 ******* 10 11 (The following proceedings were had in open Court.) 12 13 RAYMOND R. SUSKIND 14 being called on behalf of the defendant, having been first 15 duly sworn, testified as follows: 16 CROSS EXAMINATION 17 BY MR. CARR: 18 Q. Dr. Suskind, we were discussing Mr. W i l l a r d at the 19 conclusion of the day Monday. Would you turn to your Exhibit 20 1743, that is, the record of examination of yours c o n d ucted 21 in 1979 for Mr. Willard. 22 A. I don't have it here, sir. 23 MR. CARR: Could you give him 1743? 24 A. No, I do not. 3 1 Q, W o u l d yo u turn to the page numbered 24 please, 2 sir. 3 A. Yes, sir. 4 Q. And d i r e c t i n g your attention to that section on 5 that page dealing with the neuropsychiatrie or neurological 6 examination -- 7 A. Umhm. 8 Q. W o u l d you read please what is entered in the 9 physical examination side of that sheet dealing with the 10 n e u r o p s y c h i at r i e ? Read it for us so that -- the first 11 sentence or first clause, cranial nerves normal? 12 A. I b e l i e v e so. 13 Q. The next one is what, sir? 14 A. Motor nerves normal. 15 Q. And the next one? 16 A. Sens o r y slight decrease in v i b r a t o r y left great 17 toe, sensory otherwise normal, finger to nose normal, that's 18 a test, and there's a Romberg positive. In this instance as 19 we were discussing last week -- 20 Q. Dr. Suskind? 21 A. Yes, sir. 22 Q. If y o u don't mind, just read it for us. Romberg 23 positive? 24 A. Yes, sir. 4 1 Q. W hat else does it say there? 2 A. It indicates what the reflexes were. 3 Q. W h at's the next three words, sir, the R o m b e r g 4 positive is underlined, and then the next word b e l o w that is 5 reflexes? 6 A. Reflexes, right, and there's a diagram of the 7 reflexes. 8 Q. Well, there's two words there to the right of the 9 word reflexes. Wh a t are those two words? Is it falls 10 broken, Romberg positive, falls broken? 11 A. Yes, sir I'm not altogether sure what that infers, 12 sir. 13 Q. Well, the R o m berg is a test that you give to see 14 whether or not the p e rson sways upon closing his eyes, isn't 15 that right, sir? 16 A. I believe so. 17 Q. And the w o r d falls broken, the word R o m b e r g 18 positive is underlined, is it not, sir, underlined twice as a 19 matter of fact? 20 A. Well, it's underlined. 21 Q. There's two lines under the word Romberg positive, 22 is there not, sir? 23 A. There are. 24 Q. T h e n the re's a d a s h and then beneath that it says 5 1 falls broken? 2 A. Right. 3 Q. C o uld that be i n t e rpreted to m e a n that w h e n he was 4 asked to close eyes and perform the Romberg test that he 5, fell, but he was caught, that is, his falls were b r o ke n ? 6 A. That's possible. 7 Q. And, Doctor, there is a d r a wing of a little 8 skeleton beneath that with minuses and pluses? 9 A. Right. 10 Q. C ould you interpret that, those symbols for us 11 relating to each part of b o d y so d e s cribed? 12 A. Well, the -- g o ing f rom the b o t t o m up, the -- 13 there's an one plus ankle, two plus knee, two plus elbow. 14 Q. Before -- stay d o w n there at the ankle. You left 15 something off there. T h e r e 1s a plus sign on the ankle, but 16 there*s also an a r r o w by each ankle, is there not, sir? 17 A. Right. 18 Q. That a rr o w p o i n t s downward, d o e sn't it, sir? 19 A. Yes, sir. 20 Q- W h a t does that mean, sir? 21 A. I'm only going to show what the n e u ropsychiatrie 22 examination in this instance inferred by the arrow, sir. 23 Q. Excu s e me. Y o u ' r e wha t ? 24 A. I'm not sure w h a t he m e a n t by it, sir. ,6 1 Q. Doctor, you told us what the downward g o i n g a r r o w 2 meant up in the sensory line* You said slight? 3 A. I w a s n ' t -- 4 Q. Excuse me, Doctor, you said slight d e c r e a s e d 5 vibratory sense, did you not, slight arrow down? 6 A. Right. 7 Q. You interpreted that a r r o w down to m e a n decrease, 8 did you not, sir, or diminished? 9 A. I would indicate that that was -- 10 Q. Excuse me, didn't you just say to us, sir -- excuse 11 me. Dr. Suskind. 12 A. Probably decrease, sir. 13 Q. Dr. Suskind, wou l d you let me f i n i s h the q uestion 14 please, sir? 15 A. Sure. 16 Q. Would you please, sir? W o u l d you? 17 MR. HEINEMAN: Objection, Your Honor, he asked him 18 a question and he was a n s w e r i n g it. Now, h e 's inter r u p t e d 19 him. 20 THE COURT: Objection is overruled. Go ahead, Mr. 21 Carr. 22 Q. Dr. Suskind, didn't you tell us that that downward 23 pointing a rrow m e a n t d e c r e a s e d ? 24 A. Yes. 7 1 Q. All right- And the same man that wrote that 2 downward arrow drew that downward arrow there, he also drew 3 downward arrows relative to that skeleton, did he not, sir? 4 A. Yes. 5 Q- There is a plus sign there and a d o w n w a r d g o i n g 6 arrow, is there not, sir? 7 A. Yes. 8 Q. At the ankle? 9 A. No, the p l u s -- the downward, sir, is at the toe, 10 not the ankle, sir, there's a one plus for the ankle, and 11 there's a downward for the end of it, and that does not refer 12 to the ankle, sir. 13 Q. Doctor, that refers to the Babinski, and this 14 drawing you told us relates to the reflexes. The toes going 15 downward is a Babinski test, is it not, sir? 16 A. Yes. 17 Q. Is it not, sir? 18 A. Yes, and when the toes go down for a Babinski, it's 19 n o r m a l , sir. 20 Q- Yes, it is indeed, sir. 21 A. This is normal, sir. 22 Q. Dr. Suskind, but you told us this test here, this 23 drawing here was relating to the reflexes and the w o r d above 24 it relates to reflexes, doesn't it, sir? 8 1 A. That's right. 2 Q. Now, Doctor, there is a one plus at the a n k l e a n d a 3 two plus at the knee, is there not, sir? 4 A. Correct, sir. 5 Q. Now, the one plus at the ankle w o u l d be a le s s e r 6 response than the response at the knee, would it not, sir? 7 A. Yes, but it would still be normal, sir. 8 Q. Excuse me, Doctor. 9 MR. CARR: Your Honor, would you direct the jury to 10 disregard what the doctor is v olunteering b e y o n d m y question. 11 THE COURT: I think it was not responsive. It was 12 beyond the question. The jury is ordered to d i s r e g a r d the 13 doctor's last answer. Doctor, please confine your r e s p onses 14 to the question that has been asked of you. 15 Q. Dr. Suskind, you u n derstand y o u ' v e a d d e d those 16 words to about ten or fifteen answers that I have given you, 17 and each time the Court has told you it's not responsive. 18 MR. HEINEMAN: Objection, Your Honor. May counsel 19 approach the bench? 20 THE COURT: Yes, you may. 21 (At this time a conference was had at the b e n c h out 22 of the hearing of the jury.) 23 MR. HEINEMAN: Th e Court has the p r o v i n c e of 24 instructing the witness. Mr. Carr doesn't have the province 9 1 of instructing the witness. I object to his chastising or 2 instructing the witness with respect to what he has or has 3 not been doing in terms of his behavior in the courtroom. 4 MR, CARR: Your Honor, I agree it's not my 5 province, but sometimes I just do -- 6 MR. HEINEMAN: I object very strenuously to his 7 doing,that, and it is improper. It's the Court's province, 8 not his. I object to it, and I wish the Court would admonish 9 him not to do it any more. 10 MR. CARR: As I started to say, your Honor, I agree 11 it is not my province to instruct the jury, but it is in 12 point of fact that the Court has remonstrated w i t h him, the 13 Court has asked him, the Court has ordered him, the Court has 14 threatened.him. None of those things have done a n y good. 15 Anything the Court has done but put the man in jail has done 16 absolutely no good. I thought perhaps I could appeal to his 17 sense of fair play, bring out the fact that he is 18 consistently doing this and continues to do it and just 19 perhaps persuade him, if I could, that he shouldn't be doing 20 it any further. 21 THE COURT: It is the province of this Court to 22 a d m o n i s h witne s s e s and instruct them as far as answering. 23 F r o m the part of the question that I heard, and I don't think 24 it was completed, I think it was a question, w h ich I 10 1 interpreted to bring to his attention what he has been doing 2 rather than an instruction or an admonishment and a question 3 which shows the clear -- which points out clear recalcitrance 4 of this witness as opposed to an instruction or 5 admonishment. It is within the scope of counsel to ask* and I think that that q u e s t i o n f r o m what I heard of i t f and it 7 was not completedr was proper. If it had gone into the area 8 of admonishment or anything like that, it would not be, but 9 from what I heard of the question it did not go into that 10 area. Your objection is overruled. You m a y continue.' 11 (The following proceedings were had in open Court.) 12 Q. Doctor, you do understand that I wasn't asking you 13 to interpret the s i g n i f i c a n c e of these vari o u s reflexes, 14 whether they w ere normal or abnormal, you do u n derstand that, 15 don't you, sir? 16 A. Yes, sir. 17 Q. All right.. And, Doctor, the reflex was less 18 a c tive at the ankle than it was at the knee, was it not, sir? 19 A. A c c o r d i n g to this m e t h o d of scoring, sir. 20 Q. B e c a u s e there's one plus mark at the ankl^e and two 21 plus marks at the knees, correct, sir? 22 A. Yes. 23 Q. G o i n g up a little farther, sir, at t h e -- there are 24 other signs up a b o v e for the upper extremities. C o u l d you _____ _____________________________________________________________________ ,________ 11 1 interpret those signs for us, sir, with relation to activity? 2 A. Well, the reflex at the elbow was two plus and the 3 wrist reflex there's a negative sign, which means absent,, 4 sir. 5 Q. There a c t u a l l y a nega t i v e sign in two pl a c e s on the 6 7 A. R i g h t . 8 Q. -- On the p e r s o n ' s arms, Doctor. 9 A. Right. 10 Q. Not just at the wrist? 11 A. Right. 12 Q. W hat other reflex is being tested there, sir? 13 A. In this instance, sir, I'm not altogether sure what 14 he was doing there. 15 Q. Doctor, was this a neuro l o g i s t that con d u c te d this 16 examination? 17 A. This was -- this was an internist, who has -- who 18 had neurologic training. 19 Q. W hat he found, sir, was a b s ence of reflexes in both 20 arms, upper d istal part of the arm, correct, sir? 21 A. He wasn ' t able to elicit reflexes there, sir, yes. 22 Q. Is the answer to m y question that he found absent 23 reflexes in the forearm, sir, forearms? 24 A. That is true, sir. 12 X Q. And he found d e c r e a s e d reflexes in the a n k l e in the2 case of Mr- Willard's ankles, did he not, sir? 3 A. No, he found a one plus, sir. 4 Q. W h i c h was d e c r e a s e d f r o m two plus, correct, sir? 5 A. Two -- he d i d n ' t find it, two plus at the a n kle 6 before, so it couldn't have been decreased, sir. 7 Q. Doctor, it was d e c r e a s e d in rela t i o n to the 8 activity of the reflex at the knee, was it not, sir? 9 A. No, sir, it was less than. 10 Q. It was a less a c t i v e reflex, Doctor, was it not, 11 sir? 12 A. It was less a c t i v e at the ankle t h a n at the knee, 13 sir. 14 Q. All right. L ess active, it wa s m o r e slug g i s h at the 15 ankle than it was at the knee?. 16 A. No, I w o u l d n ' t sa y that, sir. 17 Q. Doctor, is less a c t i v e more sluggish? 18 A. Not necessarily. 19 Q. Not necessarily, but it can be, can't it, sir? ` 20 A. No. 21 Q. It can't be? 22 A. No. 23 Q. If one is less active, one is not sluggish, sir? 24 A. If you -- if you compare it on two different 13 1 occasions that might be so, sir, but this was only done on 2 one occasion, and on that occasion he elicited a one plus 3 reaction at the ankle, and one would say then, sir, that he 4 had a one plus reaction at the ankle and he had a two plus 5 reaction at the knee. 6 Q. And no reflex in the lower arms, no reflexes in the 7 lower arms? 8 A* If you mean the wrist reflex, it was in this 9 occasion absent. 10 Q. Is that correct, sir? 11 A. That is correct, sir. 12 Q. There's more than just the wrist reflex t hat he 13 notes there. Doctor, is there not? 14 A. Right. 15 Q. So it's the reflex in thefo r e a r m s ? 16 A. In the forearms, sir. i t i ( 17 Q. Were co m p l e t e l y absent, w e r en't they, sir? t 18 A. In the f o r e a r m and the wrist hew a s not able to ! 19 elicit b y -- at the time he did it he w a s n ' t a b l e to eli c i t 20 reflexes. 21 Q. That means the reflexes were absent. i* 22 A. At the time he did it, sir, yes. 23 Q. Yes. And he w a s n ' t c alled back to do it a g a i n onja 24 later occasion, was he, sir? i 14 1 A- i, he wasn't. We did only one examination, sir, 2 on this occgion. 3 Q. X did that examination that you thought n e c e s s a r y 4 to do to dilover the man's c o n d ition at that p a r t i c u l a r 5 point in tin isn't that correct, sir? 6 A. Th is correct, sir. 7 Q. No\ D o c t o r , with regard to the Mt. S i n a i ' s medical 8 some few montj before, if you have 1778 and X think yo u do. 9 A. I dnot, sir. 10 Q. The.neurological examination revealed a c c o r d i n g 11 to the cover &et, d e e p tendon reflexes d e c r e a s e d 12 b i l a t e r a l l y upc and lower extremities, correct, sir? i13 Second paragrai first page, do you see that, sir? 14 A. Yes, do, sir. 15 Q. And Sj few months later your e x a m i n e r found a 16 less active ref; in the ankle and a b sent refl e x e s in part 17 of the upper extfoities, correct, sir? 18 A. No, si 19 Q. Didn't^ just go through that, sir? 20 A. No, sir i 21 Q. Didn't wa s n ' t -- di d n ' t your e x a m i n e r f o u n d less 22 -- find less actijreflexes in the ankle? 23 A. Less acts than the knee, sir. 24 Q. Did t h e J n d less active reflexes in the ^nkle? -- ^- 15 1 A. Less active than the knee, sir. 2 Q. Is it that less active, sir? 3 A. That's less active than the knee, sir, if y ou're 4 comparing it, it's less active than the knee. 5 Q. Doctor, do you really believe that your e x a m i n e r 6 was comparing the reflexes at the ankle v/ith the r e f l e x e s at 7 the knee? 8 A. Insofar as his grading system was concerned, yes, 9 sir. 10 Q. Doctor, you know as we've e s t a b l i s h e d before, that 11 the one plus means it's a decreased reflex from normal, don't 12 you know that, sir? 13 A. It does not, sir. 14 Q. Doctor, didn't we go t h r o u g h t -- oh, t h a t ' s right, 15 you say the one plus, two plus, and three plus all mean the 16 same, don't you, sir? 17 A. No, I didn't say that. I said it could be normal 18 for that person. 19 Q. But they all m e a n -- 20 A. An aged p erson -- let me finish. 21 Q. Now, Doctor, I didn't ask you that, did I, sir? 22 A. No. 23 Q. I'm talking about the one plus and two plus and 24 three plu s -- 16 1 A. I am. 2 Q. And you said that that means they are active, did 3 you not? 4 A. They are active and could be normal, yes. 5 Q. And, Doctor, you also agreed however that the 6 purpose of taking these reflex tests is to discover w h e ther 7 or not compared with a ordinary person, with reflexes an 8 ordinary person has whether they are the same as, less than, 9 diminished than or hyperactive, correct, sir? 10 A. Not necessarily, sir, no. 11 Q. Doctor, you say not necessarily? 12 A. No. 13 Q. Didn't Mt. Sinai test have a scale that it's 14 comparing to, sir, the zero, the one plus, two plus and three 15 plus? 16 A. T hey did, sir, they did. 17 Q. You're aware that other neurologists use the same 18 scale and compare these things to normalreflexes? Not what 19 is normal for that person, but to normal reflexes in the 20 average population. You know that, don't you, sir? 21 A. No, sir. 22 Q. You don't know that, sir? 23 A. No, sir. 24 Q. All right. Doctor, you're not willing to agree that J 17 1 the reflex scales, grading for a ctivity is related to w h a t ' s 2 considered normal reflexes? 3 A. I am, sir* 4 Q* You are w i l l i n g to agree to that? 5 A. Yes, I am, sir. 6 Q. All right. T h e n the one plus is less active than 7 normal, is it not, sir? 8 A. No, sir. 9 Q. Then, Doctor, w h a t ' s the purpose of having a one 10 plus or a two plus or a three plus if you're grading it 11 against the normal person, sir, you're comparing it to normal 12 persons? Wh i c h is the normal reflex of the three, sir, for a 13 normal person, a reflex that is one plus, a reflex that is 14 two plus or a reflex that is three plus? 15 A, In m y -- a c c o r d i n g to m y knowledge of reflexes all 16 three are normal, all three can be considered normal. 17 Q. Doctor, what y o u ' r e saying is all three can be 18 considered normal in a particular individual, he just may 19 have slow reflexes? 20 A. No. 21 Q. Or he m a y just have h y p e r a c t i v e reflexes, but I 22 asked you, and you agreed, sir, that these reflex grades are 23 for the p u r pose of c o m p a r i n g these reflexes to s o - c alled 24 normal reflexes, and you agreed that was so, did you not, // 18 1 sir? 2 A, Yes, I did. 3 Q. What grade w o u l d a so-called normal reflex have, 4 sir, inthe scale of zero to three or zero to four? 5 A. Okay. In my view it could be either one plus or 6 two plus -- 7 Q. W e l l , D o c t o r -- 6 A. -- Or three plus. 9 Q. Doctor, w h i c h one on the grading scale, which one 10 is it, sir? 11 A. It's all three, sir. 12 Q. Then, Doctor, then it's not the purpose of 13 comparing to a normal reflex then, is it, sir? 14 A. Yes, it is. 15 Q. If they can all m e a n the same thing, they're 16 meaningless, aren't they, sir? 17 A. No, they're not, sir. 18 Q. Doctor, w h e n you read something that says it's two 19 plus or one plus, do you k n o w w h e ther or not that is a normal 20 reflex? 21 A. Yes, sir. 22 Q. How do yo u k n o w that, sir, if that's all the 23 information you have, sir? 24 A. Because d e p e n d i n g u p o n wh o the individual is, his _ 19 1 age, his medical history, he can have one pluses or two 2 pluses or three pluses, and they can be completely normal. 3 Q. Doctor, I u n d e r s t a n d that, and you said t h at a 4 number of times, but I'm directing your attention, sir, to 5 the scale or the grade for a normal, normally active reflex. 6 I agree with you, sir, that for a given individual because of 7 his age or his youth or whatever, a one plus reflex, a 8 diminished reflex may indeed be normal, but that's not what 9 I'm asking you, and you surely are aware of that, aren't you. 10 Doctor? 11 A. No, sir. 12 Q. You're not aware of that? T h e n let me m a k e it 13 clear, Doctor. I'm a s k i n g yo u to compare the g rades against 14 a so-called n o r m a l l y a c t i v e reflex. Now, what g r a d e w o u l d a 15 normally active reflex be at that scale, sir? 16 A. One plus, two plus or three plus, sir. 17 Q. Doctor, y o u ' r e again c o n s i d e r i n g the age of a 18 person, aren't you, sir? 19 A. No, I'm c o n s i d e r i n g the fact that i n d i v i d u a l s react 20 differently, and I'm also c o n s i d e r i n g -- 21 Q. Doctor, but no w I'm a s k i n g you, s i r -- 22 A. May I finish the answer? 23 Q. -- To di s r e g a r d the in d i v i d u a l reaction of these 24 persons, a n di/! I ' m l a s k i n g y o u to look at the reflex, sir, not il 20 1 2 MR. HRINEMAN: Objection, interrupted the answer. 3 THE COURT: Obj e c t i o n is overruled. 4 Q. -- The person and tell me what is a n o r m a l l y a c t i v e 5 reflex, what should be the number appended-to a normally 6 active reflex? 7 A. There is no one number, sir. 8 Q. All right. Then, D o c t o r -- 9 A. It could be one plus, two plus or three plus. 10 Q. W hat you're saying is the scales that n e u r o l o g i s t s 11 12 A. Right. 13 Q. -- And orthope d i s t s and n e u r o s u r g e o ns use to grade 14 reflexes are all inapplicable and cannot be used? 15 A. No, they can be used, sir. 16 Q. Doctor, they're using a scale, the Mt. Sinai used a 17 scale, did they not, sir? 18 A. I believe they did. You pointed that out to me. 19 Q. For sluggish and normal and hyperactive, remember, 20 sir, do you remember that, sir? 21 A. I don't have it b efore me, sir. 22 Q. But do you remember it, sir? T h e y put out the 23 scale there so that you could look at a one plus and say, ah, 24 that's a sluggish reflex. Do you recall that, sir? 21 1 A. I don't believe. 2 MR. HEINEMAN: Objection? 3 A. -- That they had the one plus as a sluggish. They 4 had a number one, which meant, number one was absent, number 5 two was sluggish. No, they didn't use a one plus, two plus, 6 three plus scale, so I don't think you can -- it's 7 appropriate to confuse the one plus, two plus, three plus 8 scale which you are now talking about in the case of our 9 examination as compared with the Mt. Sinai method, which was 10 completely different, their numbers meant diffe r e n t things. 11 Q. Doctor, you agreed at the time that the zero or the 12 one at the Mt. Sinai was equivalent to zero on y our scale, 13 did you not, sir? 14 A. It was absent on our scale. 15 Q. Excuse me. Did you not agree, sir, that the one on 16 the Mt. Sinai scale was equivalent to zero or a bsent on your 17 scale? 18 A. It would appear to be, sir. 19 Q. Did you not also agree that the two on the Mt. 20 Sinai scale was equivalent to one plus on your scale? 21 A. I do not know, sir. 22 Q. No, Doctor, I asked you whether or not you did not 23 agree that that was a proper comparison? 24 A. I don't believe I did, sir, because I don't know. 22 1 Q. D o c t o r , what you're now doing is saying that the 2 scale that used at Mt. Sinai you cannot determine whether or 3 not the person had a reflex that would be considered normally 4 active/ is that what you're saying, sir? 5 A. I really don't know, sir, cause I don't know what 6 they used as their -- 7 Q. Now, Doctor -- 8 A. -- Scoring technique. 9 Q. You have their scoring technique, you saw the 10 scale, it was there, it was plain, and you saw they put the 11 numbers down. You could look at a number and you c ould go 12 look over at the reference range and see what they 13 interpreted that number to be? 14 A. Correct. Sir. 15 Q. Couldn't you, sir? 16 A. No, I woul d n ' t know unless I saw how t h e y did their 17 examinations. 18 Q. Doctor, we went t h r o u g h -- 19 A. May I finish, sir. 20 Q. Doctor, we went through that as well, did we not, 21 sir? 22 A. We did, sir, and I never said -- 23 Q. W h a t is the point in going over the same m a t e r i a l 24 time and time again? 23 1 A. I never said there was a equivalent. 2 Q. You u n de r s t a n d we could never finish t h i s -- perhaps 3 that's what you want, Dr. Suskind. 4 A. No, sir. 5 Q. Dr. Suskind, do you not agree that they had a 6 scale, you can look at the numbers and interpret what those 7 numbers mean by looking at that reference range? 8 A. I can only interpret those numbers as to-- 9 MR. CARR: Your Honor, would you direct the IO w i t n e s s -- 11 A. Yes. 12 MR. C A R R j -- To answer my question? 13 A. Yes, I can interpret them. 14 Q. By looking at that scale and by looking'at that 15 number, could you not, sir? 16 A. O nly insofar as -- 17 MR. CARR: Your Honor, would you direct the witness 18 to answer m y question directly without adding on or prefacing 19 his answer with other remarks. 20 THE COURT: Doctor, answer the question directly. 21 MR. HEINEMAN: Objection, Your Honor. He was doing 22 that, and I object. 23 THE COURT: O bject is overruled. It was not 24 responsive 24 1 A. Would you point out, sir, where this scale is? 2 MR. CARR: Your Honor, would you-- 3 THE COURT: Doctor, that's not in response to the 4 question. I've asked you to respond to the question 5 directly, sir. Please do that now. 6 MR. HEINEMAN: Excuse me, Your Honor. May counsel 7 approach the bench? 8 THE COURT: Yes, you may. 9 (At this time a c o n f e r e n c e was had at the b e n c h out 10 of the hearing of the jury.) 11 MR. HEINEMAN: May I ask the C o urt what the problem 12 is w ith the witness asking w h e r e the scale is in the 13 exhibit? 14 MR. CARR: If I could respond to that, we have gone 15 through that scale, I have gone through the scale time and 16 time again. We have done it once and at length. The witness 17 is playing a game. 18 MR. HEINEMAN: He is not p l a y i n g a game. He wants 19 to look at the scale. I don't see what's wrong with that. 20 MR. CARR: He m a y look at the scale w h e n you 21 redirect him, but I'd like him to answer m y question so I can 22 move on. 23 THE COURT: Th e w i t n e s s is p l a y i n g games, there's no 24 question about that. The question was properly posed to him, 25 1 he has not responded to it. I've directed him to respond to 2 it directly, and that does not encompass asking a question, 3 and your objection is overruled. 4 (The following proceedings were had in open Court.) 5 Q. Doctor, would you now answer my q u e s t i o n p l e a s e , 6 sir? 7 A. Would you repeat the question please. 8 MR. CARR: Would you read the question to him 9 please. 10 (Court reporter read back the question.) 11 A. No, I cannot, sir. 12 Q. Doctor, didn't you just agree a moment ago that you 13 could, that they did have such a scale? 14 A. They have a scale, sir, but I cannot u n d e r s t a n d 15 what they really mean. 16 Q. All right. Now, Doctor, without t rying to find out 17 what they " really" mean, do they not have a scale that 18 grades the reflexes one equals absent, two equals sluggish, 19 three equals active, four equals very active, five equals 20 t r a nsient clonus, six equals sustained clonus? D o they not, 21 sir? 22 A. No, sir. 23 Q. They don't have the scale, sir? Don't y o u recall, 24 Doctor, we went through that scale? 26 1 A. I believe they have two scales, sir? 2 Q. Doctor, don't you recall we went through that scale 3 4 A. Yes, sir. 5 Q. -- For the reflexes? 6 A. Yes, but I believe they have two scales,sir. 7 Q. Doctor, do you recall that they had the scales for 8 the reflexes as I gave it to you, sir? 9 A. Yes, sir. 10 Q. T h e y do indeed have that scale, don't they, sir? 11 Doctor, I can direct your attention to it, but I w o u l d like 12 for you to recall what you testified to, sir, and I c a n n o t -- 13 A. Well, I cannot recall unless I see-- 14 Q. Doctor, let me finish my question. 15 A. All right, I'm sorry. 16 Q. Do you not recall the scale as I gave it to you for 17 reflexes, one equals absent, two equals sluggish and so 18 forth? Do you not recall that, Dr. Suskind? Dr. Suskind, 19 did you hear my question? 20 A. Yes, yes, I do, sir. 21 Q. Did you not recall that question, sir, a n d your 22 answer being there was such a scale? 23 A. T here is such a scale, sir. I have it b e f o r e me. 24 Q. Doctor, you have the scale b efore you now? My 27 1 question is, sir, n o t w i thstanding that you now have the scale 2 in front of you, you do recall the questions about that 3 scale, don't you, sir? 4 A. I do, sir. 5 Q. You do recall no w that you a greed there w a s such a 6 scale, did you not, sir? 7 A. There is a scale, sir, yes. 8 Q. That isn't my question. 9 MR. CARR: Your Honor, would you direct the witness 10 to quit prefa c i n g his answer to my question w ith a 11 v o l u n t e e r e d statement and to answer my question directly. 12 MR. HEINEMAN: Objection, it's direc t l y responsive 13 to his question. 14 THE COURT: It was not responsive. O b j e c t i o n is 15 overruled. Doctor, listen to the question carefully. Do not 16 interrupt the question-- 17 THE WITNESS: Your Honor, I am trying. 18 THE COURT: Doctor, don't interrupt me either. Do 19 not interrupt the question as it is being given to you and 20 then a nswer the question directly. No more, no less, and 21 then we'll be able to move on. 22 Q. Doctor, my ques t i o n was not whether or not there is 23 such a scale. My question was do you not recall that there 24 was such a scale. That was my question, sir. 28 1 A. I recall such a scale, sir, now. 2 Q. Now you recall it? 3 A. Yes, I do. 4 Q. You had f o r g o t t e n it w hen you answered e a r l i e r ? 5 A. Well, I w asn't quite sure, sir, because I'm 6 confused about their use-- 7 Q. Is the a nswer to m y q u e s t i o n that you had f o r gotten 8 it, sir? 9 A. I had to remind myself, sir, yes, sir. 10 Q. Is that a yes, you had forgotten it? 11 A. No, it's-- 12 Q. Doctor, answer m y ques t i o n d i r e c t l y then, sir. I 13 asked you a ques t i o n w h e t h e r yo u had f o r g o t t e n it or not. 14 A. I had for g o t t e n it, sir. 15 Q. And you gave me an a n s w e r and ended up saying, 16 yes. Now, that yes could be i n t e r p r e t e d as I interpreted, 17 yes, you had forgo t t e n it, but then w h e n I a s k e d you d irectly 18 if you had forgott e n it, y o u said, no, you hadn't forgotten 19 it. Doctor, either you f orgot it and, therefore, w e r e telling 20 the truth to this jury w h e n you coul d n ' t remember it or you 21 were d e l i b e r a t e l y lying to us, sir. I suggest to you that 22 the appropriate answer m ight b e for your sake, for your 23 welfare is that yo u had indeed f o r g o t t e n that there was such 24 a scale. Now, Doctor 29 1 MR. HEINEMAN: Objection. May counsel approach the 2 bench? 3 THE COURT: Yes, you may. 4 (At this time a c o n f e r e n c e was had at the b e n c h out 5 of the hearing of the jury.) 6 MR. H E I W E M A N : There's another one of Mr. Carr's 7 outrageous speeches to the jury, and I object to it, and X 8 move that it be stricken and I ask the jury be instructed to 9 disregard it. 10 MR. CARR: I think it speaks for itself. Your 11 H o n o r . 12 THE COURT: Y our o b j e c t i o n is overruled. The only 13 outrageous thing in this p r o c e e d i n g right now is the conduct 14 of your witness. You m a y proceed. 15 (The foll o w i n g p r o c e e d i n g s were had in open Court.) 16 Q. Now, Doctor, by referring to that scale you can 17 thereby find out what they meant to convey when they put 18 numbers relative to these various reflexes, can you not, sir? 19 A. No, sir. 20 Q. Doctor, is there on the right hand side of the page 21 where the scale is, on the reflex page, are there columns, 22 sir, that have little boxes in little squares w h e r e you can 23 put in numbers? 24 A. Yes, there are. 30 1 Q. And let the record show that I'm showing in front 2 of the jury part of Plaintiffs' Exhibit 1776, and, Doctor, 3 next to each or opposite each little box there's a 4 description of a reflex like triceps, finger, patellar and so 5 forth? 6 A. Uiuhm. 7 Q. Above that there is the scale, is there not, 8 reflexes one equals absent, two equals sluggish, and so 9 forth? 10 A- Yes. 11 Q. And, Doctor, there -- if there's a number one, for 12 instance, in the ankle reflex, you can look up to that scale 13 and say number one means absent, can't you, sir? 14 A. You can. 15 Q. And that's the p u r pose of using the numbers, so you 16 don't have to write absent in that little square, you can 17 just put one in there, and you look at the scale, and you'll 18 know how one is to be interpreted as far as the grade of 19 activity of that particular reflex, isn't that correct, sir? 20 A. Correct, sir. 21 Q. Doctor, they indeed are grading, they have this 22 grade, this scale with reference to normal reflexes, are they 23 not, sir? 24 A. No, sir. 31 1 Q. Doctor, the word sluggish does not that m e a n that 2 that reflex that they call sluggish is less active t h a n the 3 normally active reflex? 4 A- It might be, sir, yes. 5 Q. Doctor, what other m e a ning could it have? 6 A. It could be normal for this person. 7 Q. Doctor, I'm not a s king about that again. I've a s k e d 8 you several times to refrain from that, the Court has asked 9 you to refrain from that, you been directed to refrain from 10 that. I'm not asking you about this part i c u l a r person. 11 MR. HEINEMAN: Objection, Your Honor. 12 Q. I'm asking you what sluggish means, sir. 13 MR. HEINEMAN: He asked what other m e a n i n g c o u l d it 14 have, and that answer is responsive. I object to it. 15 THE COURT: Overruled, it's not responsive. 16 Q. Doctor, what else c o uld s l u g g i s h m e a n except in 17 comparing it to a normally active reflex? 18 A. In this instance, sir, I don't know, b e c a u s e I 19 don't -- I've never seen this scale before, sir. 20 Q. Doctor, is there any other s i g n i f i c a n c e or m e a n i n g 21 that you can put to it.other than they're saying s l u g g i s h is 22 what that reflex is as comp a r e d to a n o r m a l l y a c t i v e reflex? 23 A. It might be considered -- 24 Q. No, m y q u estion -- 32 1 A. -- Slower than normal. 2 Q. W hat other could it be, sir? 3 A. I'm not sure, sir, I don't know. 4 Q. As far as you know, there are no other 5 interpretations, correct, sir? 6 A. I don't know, sir. That is my answer, my answer is 7 I don't know. 8 Q. T h e r e f o r e , .you don't know of any other 9 interpretation, isn't that correct, sir? 10 A. I have some questions about it. 11 Q. Doctor, my question is you don't know of any other 12 interpretation except this is a comparison to a n o r m a l l y 13 a c tive reflex, isn't that correct, sir? 14 A. In this i n s t a n c e -- 15 Q. That's the only interpretation that you know of? 16 A. In this instance it might be normal, sir, and I 17 have reasons for saying so. 18 Q. Doctor, and again you're comparing it, you're 19 discussing the man, aren't you, sir? I'm talking about the 20 g r a d i n g of the reflex, sir, not whether or not it is normal 21 for this man or abnormal for this man to have s l u g g i s h 22 reflexes. It might be that he was born w i t h s l u g g i s h 23 reflexes, that it's a pe r f e c t l y normal thing for him to have 24 sluggish reflexes. My question is, as you well know, Dr. 33 1 Suskind, is comparing what they mean by the word sluggish, 2 what are they comparing the reflex to when they use the word 3 sluggish? 4 A. I don't know, sir. 5 Q. Then, Doctor, you don't know anything other than 6 they're comparing it to a normally active reflex? 7 A. Yes, I do, sir. 8 Q. What else do you know t h a t -- 9 A. On page 382 of the same report, sir, there is a 10 exami n a t i o n of reflexes -- this is 9574446, w h i c h I assume is 11 Mr. W i l l a r d ' s chart. 12 Q. Doctor, I'm not even talking about -- 13 A. And it s a y s -- m a y I finish, sir? 14 Q. No, becau s e I'm not talking about this? 15 A. The reflexes are regarded as normal in that 16 examination. 17 Q. Dr. Suskind, that m a y be. My ques t i o n to you, sir, 18 does not refer to Mr. Willard. My question to you, sir, as 19 you know my question refers to the grading system and not to 20 an y pa r t i c u l a r individual. I'm not yet ready to m o v e into 21 what this m eans insofar as Mr. Willard is concerned, sir. Do 22 you unde r s t a n d that, sir? 23 A. I do not know, sir. 24 Q. You don't know anything other than they're 34 1 comparing it with a normally active reflex with that scale, 2 isn't that correct? 3 A. Yes, I do, I just said I do know that they are 4 comparing it, b e c a u s e there is another record of Mr, Willard. 5 Q. Doctor, you are no w talking about Mr. W i l l a r d 6 again. 7 A. But if they regard W i l l a r d as n o r m a l -- 8 Q. Doctor, do you u n derstand what I'm asking you 9 about? 10 A. Yes, sir. 11 Q. Because this same scale, sir, is used w i t h all of 12 the people that Hoses Selikoff studied, not just with Hr. 13 Willard.. T h e y d i dn ' t pick it up from Mr. Willard. T h e y used 14 it for all of them, didn't they, sir? 15 A. I assume they did. 16 Q. Yes. And so they set up a scale, a standard scale 17 to be used with everybody, did they not, sir? 18 A. I assume they did, sir. 19 Q. Now, in that stan d a r d scale that they set up to use 20 for everybody, sir, doesn't the grade of two that is 21 sluggish, aren't t hey referring to a sluggish reflex as 22 comp a r e d to a n o r m a l l y a c tive reflex? 23 A. I don't know, sir. 24 Q. All right, Doctor. If you persist in that, we'll 35 1 pass to something else, sir. Doctor, did Mr. W i l l a r d then in 2 -- according to these reports that we have gone through from 3 Mt. Sinai and from the West Virginia hospital and from the 4 Herbert J. Thomas Memo r i a l Hospital, did he have p r o b l e m s 5 that did not clear up with time? 6 A. No, he didn't have problems that did not clear up, 7 sir. 8 Q. These pro b l e m s he had that he ha s m e n t i o n e d in -- 9 has been mentioned in these various reports that w e have gone 10 through were t hey real problems, sir, or w e r e they all the 11 product of a psychoneurotic individual? 12 A. Depends w h e n they happened, sir, w h e n t h e y w ere 13 reported. 14 Q. W o u l d you answer m y question, sir. W e have all the 15 exhibits, we have gone t h r o u g h the exhibits. I 'm now asking 16 for your judgment, sir. W e r e these p r o b l e m s that the man had 17 that were real in 1979 or w e r e they p r o b l e m s that were the 18 product of an imagination of a psychoneurotic individual? 19 A. I do not b e l i e v e t h e y w e r e real, and I believe that 20 the problems were the result of his a t t empt to exaggerate 21 complaints which previous people have observed as well. 22 Q. Doctor, w e r e the a b s e n c e of the reflexes that you 23 found a real absence or w e r e t h e y imagined by your examiner? 24 A. T h e y were not found previously, sir. 36 1 Q. Doctor, my que s t i o n is w e r e the absent reflexes 2 that your examiner found in 1979, was that a real absence of 3 reflexes or did your examiner imagine this? 4 A. I assume they were a real finding, sir. 5 Q. Yes, Doctor. So that was something, a p r o b l e m that 6 he did have, correct, sir? 7 A. He had it, but he m a y not have had it before. 8 There was no other examination. 9 Q. He may not have had it before, but he had a number 10 of complaints indicative of p e r i p h e r a l neur i t i s or peripheral 11 neuropathy, did he not, in 1953 w h e n yo u sa w him? 12 A. In '53 he still complained, sir, and we t h o u g h t -- 13, Q. Didn't he have those p r o b l e m s in *53? 14 A. No, sir, he complained, but they w e r e not real 15 problems, sir. 16 Q. T hey were imaginary then w i t h Mr. W i l l a r d ? 17 A. They were e x a g g e r a t e d problems, sir. 18 Q. Doctor, you called them s i g n i f i c a n t in y our 19 summary, you said he had a significant -- 0 20 A. Significant because he c o m p l a i n e d about them and -- 21 Q. Doctor, you called t h e m s i g n i f i c a n t symptoms. You 22 didn't say they were complaints. 23 A. Yes, we did. 24 Q. You said they were s i g n i f i c a n t symptoms, did you 37 X not, sir? Nov/ y o u 're^calling t hem imaginary* Y o u c a l l e d 2 them symptoms in 1953, and n o w y o u 1re saying he i m a g i n e d 3 these symptoms? 4 A. I didn't say he imagined it* I said that he w a s a 5 psychoneurotic, and we been through this before. 6 Q. Doctor, they're either real or they' re imagined, 7 aren't they, sir? B A. N o , sir. 9 Q. We went through that, too,sir? 10 A. We been through this before. 11 Q- What can they be other than real or unreal, sir? 12 A. This man beli e v e d that he had those symptoms, sir. 13 Q* Doctor, I un d e r s t a n d that and y o u said that. 14 A. Yes, sir. 15 Q- Whether he believes it or not if he has t h e m and he 16 believes it, they're real, if he d o e s n ' t have t h e m a n d he 17 believes it, they're imaginary, isn't that correct, sir? 18 A. No, sir* 19 Q* His belief -- 20 A. No, sir. 21 Q* Oh, really? 22 A. That's right. 23 Q* If he doesn't have it, and he beli e v e s t h a t he has 24 it, are they not imaginary, sir, if he d o e s n ' t h a v e them? 38 1 A. He believes that he has it and they're -- 2 Q. Would you answer ray question, Dr. Suskind? 3 A. They are real to him, sir. 4 Q. I know they're real to him, Doctor, but I ' m talking 5 about real in the sense that you and I both use it. You 6 don't consider something that's imagined to be real in the 7 real world, do you, sir? 8 A. I'm not sure I can answer that question, sir. 9 Q. Doctor, you do know that imaginary means s o m e thing 10 that is not there, you do know that, don't you, sir? 11 A. Imaginary may be -- 12 Q. Could you answer my question, Dr. Suskind? 13 A. W ould you repeat the question. 14 (Court reporter read back the question.) 15 A. It might be, sir, yes. 16 Q. Doctor, please answer ray question yes first or no 17 first? 18 A. No, no. 19 Q. The answer to that question is no then? 20 A. That's right. 21 Q. Then you b e l ieve something that imagined is really 22 there then, is that correct, sir? 23 A. No, I be l ieve some b o d y ma y b e l ieve t h e y h a v e it, 24 and it's real to them, sir. 39 1 Q. Doctor, I'm not quarrelling w i t h it. 2 A. If you will let me finish -- 3 Q. I acce p t that. Now, what I'm asking you. Doctor, 4 whether it is real in fact simply because the man imagines he 5 has it. Is that real? 6 A. It m a y be real, sir. 7 Q. If he imagines he has it, but doesn't have it? 8 A. He b e l i e v e s he has it. 9 Q. Doctor, I know that. 10 A. It's real to the person. 11 Q. You said that a d o z e n times. 12 A. Well, th at's all I can say, sir, and 13 psychoneurotics14 Q. I'm not t a l king about what he believes. 15 A. P s y c h o n e u r o t i c s b e l ieve they have problems. 16 Q- Indeed t h e y do. Doctor. 17 A. Yes, sir. 18 Q. Now, listen to me, Doctor. I'm not talking about 19 what they believe. Have you got that in your mind now, 20 Doctor? I'm not t a l k i n g about what they believed, I'm 21 talking a bout w h e t h e r it is really there, w h e ther it is real 22 or not. sir. Have you got that, sir? 23 A. Yes, I do have it, sir. 24 Q. All right. Now, Dr. Suskind, if the complaint is 40 1 not there in fact, if the symptom is not there in fact, if 2 the pain is not there in fact, his belief that it's there 3 doesn't m ake it there in the real world, does it, sir? 4 A. Yes, in his real w o r l d it does, sir. 5 Q. Doctor, I didn't say in his. Did you think that I 6 said in his real world? 7 A. Well, that's part of the real world, sir. 8 Q. Did you think that I said in his real w o r l d or did 9 I say in the real world, which did I say, Doctor? 10 A. You said in the real world. 11 Q. Yes, Doctor. 12 A. W h i c h includes his, I assume, and it includes mine, 13 it includes yours and it includes Mr. Willard's. 14 Q. Doctor, what y ou're saying then is things that one 15 imagines exist in the real world, is that what you're saying? 16 A. No, I did not. 17 Q. Doctor, you know that what one imagines isn't real, 18 you know that, don't you, sir, by definition? 19 A. I do not, sir. 20 Q. Y o u don't know that by definition? 21 A. No, sir. 22 Q. T h e n it is your b elief that something that imagined 23 is real, is that your belief, sir? 24 A I believe that in this case -- 41 1 Q. No, Doctor, I'm not a s k i n g about in this c a s e and 2 you know I'm not asking about in this case. 3 A. Well, I t h o u g h t y o u were,sir, cause we're talking 4 about Mr. Willard. 5 Q. No? 6 MR. CARR: Your Honor, would you direct the 7 witness-- 8 Q. W e ' r e talk i n g a b o u t the word imagined, Doctor, and 9 the word real. 10 A. Okay. 11 Q. Because b e f o r e we can talk about Mr. W i l l a r d we 12 have to d e fine the w o r d s that we use, don't we, sir? 13 A. I'm not sure, sir. 14 Q. We do ap p a rently, Doctor. Do you not agree, Doctor, 15 that if they are imagined, that that is a problem that is not 16 real if it is a p r o b l e m that is imagined? 17 A. . No, sir, I would disagree with that. 18 Q. Then you b e l i e v e that real an d unreal m e a n the same 19 thing? 20 A. No, I do not. 21 Q. Doctor, if I imagine that I have a p a i n in ray back, 22 but I really don't, do I have a real pain in my back? 23 A. You m i gh t have a real problem, sir. 24 Q. Well, I a g r e e w i t h that, Doctor, no q u e s t i o n about 42 1 that/ we agree one hundred percent on that, but. Doctor, did 2 you conceive that I said prob l e m ? I said pain, d i d n ' t I, 3 Doctor? Now, Doctor, if I imagine that I have a pain in my 4 back, ifI believe I have a pain in my back, but in fact I 5 don't have a pain in my back, that is an unreal pain, isn't 6 it, sir? 7 A. No, sir. 8 Q. It is a real pain? 9 A. It's a real pain to the p e r s o n w h o has it, sir. 10 Q. Doctor, you k n o w I'm not talking about w h e t h e r or 11 not it's real to the person, you know that I a g r e e w i t h you 12 that it's real to the person. I'm not quarrelling with you 13 it's real to the person. I a c cept it that the m a n is sincere 14 in believing that he has that pain in the back, I agree w i t h 15 you a thousand percent, Doctor, but now I'm d i r e c t i n g your 16 attention to whether or not it is really there. 17 A. It may not be r eally there -- 18 Q. If it isn't -- 19 A. But it's a real problem, sir. 20 Q. Yes, Doctor, it i s . 21 A. To the person it's real pain. 22 Q. I agree with that, Doctor, but if it isn't really 23 there, it's imaginary, isn't it, sir? 24 A. Not necessarily, no. 43 1 Q. Doctor, if something isn't really there, it's 2 imaginary, isn't it, sir, it's a figment of the imagination, 3 isn't it, sir, if it isn't really there? 4 A. No, imagination m a y h a v e -- 5 MR. HEINEMAN: Objection, Your Honor. 6 THE COURT: Objection is overruled? 7 A. -- nothing to do with it, sir. 8 Q. Doctor, if X tell you that I see a m a n stan d i n g in 9 front of me and I believe I see a man standing right here 10 three feet from me, you k n o w good and well there's no ma n 11 standing there. Now, that's a figment of my imagination, 12 isn't it, sir, or else I'm lying, one of the two. I really, 13 really believe that I see a m a n there or I'm lying w h e n I 14 tell you I see a man there, isn't that right, sir? 15 A. Correct. 16 Q. Therefor e it's an imagined man. It's not really 17 there, is it, sir? 18 A. That, sir, is a delusion. 19 Q. Well, a d e l u s i o n is a n o ther f o r m of imagination, 20 isn't it, sir? 21 A. It might be. 22 Q. A n d it's imagined, it's not real, is it, sir? 23 A. No, that would not be real according to what you're 24 telling me. 44 1 Q. Doctor, according to -- 2 A. The pain is something else. 3 Q. Doctor, is what y o u ' r e saying then that the p a i n 4 that Mr. Willard or anybody else has if they imagine they 5 have the pain, it's really there then? 6 A. No, I didn't say that. I said they b e l i e v e t h e y 7 have the pain. 8 Q. X know, Doctor, w e 've talked a b o u t that ad 9 infinitum, but I'm talking about whether it is really there. 10 Is it there simply because they believe that it's there? 11 A. It may not be there, but they b e l i e v e it's there, 12 and it's a real problem. 13 MR. CARR: Your Honor, would you d i r e c t the w i t n e s s 14 to answer my question and not go on and on about the real 15 problem and what he believes and just answer my question, Dr. 16 Suskind. 17 A. Yes, sir. 18 THE COURT: Doctor, please respond to the question. 19 I think you went way beyond it. 20 MR. CARR: W o u l d you read the q u e s t i o n to him 21 again. 22 (Court reporter read back the question.) 23 A. Yes, it's there simply because they beli e v e that 24 it's there. 45 1 Q. All right- Then these men then have real p r o b l e m s r 2 and they did not go away insofar as they were concerned, 3 isn't that correct, sir? 4 A- No, sir. 5 Q. Doctor, if it's there, it d i d n 't go away, did it, 6 sir? T h e y 're real problems, they did not go away, isn't that 7 correct, sir? 8 A. But they're psychoneurotic problems, sir. 9 Q. I don't care whether they're psyc h o n e u r o ti c or not. 10 They're real problems they've got, correct, sir? 11 A. They are problems for the person, and they have to 12 be dealt with, yes, sir. 13 Q. They're problems for the p erson that d a t e d from the 14 time of the exposure, isn't that correct, sir? 15 A. What problems are you talking about, sir? 16 Q. What problems do you think we're talking about. 17 Doctor? 18 A. I'm not altogether sure. 19 Q. You give me your idea of what I'm talking about. 20 A. Well, he's had multiple problems, and I'm not sure 21 which ones you're talking about. 22 Q. Y o u give me the prob l e m s that he's had since the 23 date of the exposure that he continued to have up to *79, 24 Doctor, whether they're imagined or real, what are these 46 1 problems that he has so far as he's concerned? 2 A. A c c o r d i n g to the c o mplaints he indicated that he 3 had a -- he had a history of pains and nervousness and that 4 he had a heart problem. 5 Q. And those p r o b l e m s then didn't go away# d i d they, 6 sir? 7 A- We believe that they did, sir. 8 Q. Well, Doctor, you said the imagined problems, these 9 problems that he's got were imagined, not real, but they were 10 problems for him and t h e y w e r e dated from the exposure, and 11 I've asked you then what p r o b l e m s did he have dated f r o m the 12 exposure that he still has and you have given us these 13 problems. 14 A. T hose are complaints, sir. 15 Q. But I asked you about problems. 16 A. They ' r e not findings, they're complaints. 17 Q. Doctor, I a s k e d you about what problems the man 18 had. Do you recall I asked you that, sir? 19 A. Yes, sir. 20 Q. And you gave me the problems that -- 21 A. I gave -- 22 Q. Because y o u want to respond to my q u estion 23 properly, you gave me in answer to my question the problems 24 the man had, didn't you, sir? 47 1 A. X gave it to yo u as complaints, sir, 2 Q. Doctor, you k n o w I didn't ask you that, 3 A, T h a t ' s what I said, I said he complained of. 4 Q. Dr. Suskind, you k n o w I didn't ask you what he 5 complained of- Did you hear me use the word complained of? 6 A. No. 7 Q. But that was my answer, sir. 8 Q. Doctor, then y o u ' r e not following the Court's 9 direction if you're answering a question I didn't ask, 10 because I d i dn't ask you about his complaints, did I, sir? I 11 asked you about the p r o b l e m s that he had from the e xposure 12 that he continues to have. I asked you to give me those 13 problems, sir. Now, will you answer that question, sir? f 14 A. The only p r o b l e m that I could tell you about, if 15 that is the question, the o n l y p r o b l e m that I could answer 16 with a positive, in a positive way is that his psychoneurosis 17 and his exag g e r a t e d c o m p l a i n t continued. That is all I can 18 say. 19 Q. Doctor, I d i d n ' t ask you about e x a g gerated 20 complaints. I asked you about the problems that he had. What 21 problems did he h a v e that did not go away? 22 MR. HEINEMAN: Objection? t 23 A. The exag g e r a t e d c o m p l a i n t s are one of his problems, 24 sir, that is a problem. It's a problem for the doctor, it's . 48 1 a problem for the patient and his psychoneurosis, which was 2 part of the exaggerated complaints or the exaggerated 3 complaints, part of his psychoneurosis, that also continued 4 and that we determined in 1953, and he continued to have 5 that. 6 Q. Doctor, in 1953 in a d d i t i o n to the p s y c h o n e u r o si s 7 you said the man had significant problems relating to pain. 8 A. Which we believed were exaggerated and part of his 9 psychoneurosis. 10 Q. Well, e x a g g e r a t e d or not, he still had p roblems 11 related to pain, did he not, sir? 12 A. That was p a r t of the psy c h o n e u r o si s , sir. 13 Q. Excuse me, Doctor. D i d n ' t yo u say they were 14 significant problem s in '53? 15 A. Yes, we did. 16 Q. Yes. Now, he's got those same prob l e m s that he had 17 in '53, he's got some of those same p r oblems in '79, doesn't 18 he. sir? 19 A. He has one of those major p r o b l e m s in '79, sir. 20 Q. W h i c h one is that, sir? 21 A. P s y c h o n e u r o s i s . 22 Q. He has no pain? 23 A. That's pa r t of it, sir. 24 Q. Does he h a v e a n y p a i n or not. D o c t o r ? - 49 1 A- He complains of it. 2 Q. Doctor, my question is not whether or not he 3 complains of it, my ques t i o n is w h e t h e r or not he has it. 4 A. That's the only wa y we can determine it. 5 Q. Doctor, could you p lease det e r m i n e it for me. Does 6 he have the pain or not? 7 A. I don't know. 8 Q. Well, Doctor, you said the o n l y w a y yo u can 9 determine it is by his complaints. 10 A. Okay. 11 Q. Now, does he have the p a i n or not? 12 A. He complains, but that doesn't mean he has it. 13 Q. Doctor, in your judgment does he have it? 14 A. No, sir. 15 Q. Then he's lying to you? 16 A. No, he believes he has it, but he d o e s n ' t h a v e it. 17 Q. Then it's a real p r o b l e m to him, isn't it, sir? 18 A. It might be, yes. 19 Q. Well, is it or is it not? 20 A. It's a real p r o b l e m to a p s ychoneurotic. 21 Q. Is it a real p r o b l e m to Hr. W i l l a r d ? 22 A. It could be a real prob l e m to a psychoneurotic. 23 Q. My question is is it a real p r o b l e m to Mr. W i l l a r d ? 24 A. It is a p r o b l e m to Mr. Willard. 50 1 Q. Is it a real p r o blem to Mr. Willard? 2 A. It is a real p r o blem to Mr. Willard. 3 Q. All right. Doctor, it's a real p r o b l e m that Mr. 4 Willard has starting with the exposure, isn't that correct, 5 sir? 6 A. No, sir. 7 Q. W hen did it start, Doctor, ac c o r d i n g to the records 8 that you have? 9 A. I cannot tell you when the -- 10 Q. Doctor, according to the records yo u have, w h e n did 11 it start, when did he first start c o m p l a i n i n g of it a c c o r d i n g 12 to the records that you have? i 13 A. According to the records he had pain. Whether it's \ 14 the same pain, I don't know. 15 Q. My question is, Doctor, when did it start a c c o r d i n g 16 to the records that you have? 17 A. In 1949. 18 Q. Yes, Doctor. And he has that same p r o b l e m in 1979, 19 doesn't he, sir? 20 A. No, sir. 21 Q. Doctor, didn't you just tell us that t h a t ' s w h a t he 22 has? 23 A. In 1949 it was really real. 24 Q. Didn't you just tell us that he has that p r o b l e m in 51 1 *79, psychoneurosis? 2 A. He has the psychon e u r o ti c pr o b l e m in '79, sir. 3 Q. Isn't that the prob l e m that he had in '49? 4 A . N o , sir. 5 Q. Doctor, I asked you then what p r o b l e m d o e s he have 6 in '79 that he had to start w i t h and you said he's 7 psychoneurotic. He has a psychoneurotic problem with pain is 8 what you said. 9 A. Right, and I don't know when that started, sir. 10 Q. Doctor, that's the p r o blem that I asked you. I 11 asked you to give me what problems he had in '79 that he had 12 to start with, and you said he's only got the one problem in 13 '79 that he had to start with, that is, the p s y c h o n e u r o si s . 14 Nov/, that's what you said, sir. 15 A. Well, if I did, then what -- he d i d n ' t have -- 16 Q. Doctor, that's what you said. 17 A. He didn't have p s y c h o n e u r o si s in '49 to m y 18 k n o w l e d g e . 19 Q. Sir? 20 A. I don't believe he had a p s y c h o n e u r o s i s in '49, not 21 that we could determine. 22 Q. Well -23 A. In '53 -- let me finish -- in *53 we d i d d e t e r m i n e 24 that he had it. That is four years later. 52 1 Q. You also determined -- Doctor you also determined 2 that this man had real significant problems relating to aches 3 and pains, nervousness, fatigue, loss of vigor, shortness of 4 breath, decrease in libido, didn't you, sir? 5 A. In what dates, sir? 6 Q. In 1953, sir. And haven't you testified also that 7 he was among the ten that you found to have significant 8 problems relating to the these significant problems, didn't 9 you tell us that also, sir? 10 A. We did, but that was part of the psychoneurosis. 11 Q. Now, D o c t o r -- 12 A. We believed that he exaggerated, and it's in the 13 record, sir -- 14 Q. Did you say to us in your earlier testimony or did 15 you say in this 1953 report that these aches and pains and 16 nervousness and fatigue were significant in this man's case? 17 A. There were significant as part of the 18 psychoneurosis, whi c h we had described quite succintly in 19 1953., and I'll give you the page if you'd like to refer to 20 it again, sir. 21 Q. It's Page 46, Dr. Suskind. You've given us that 22 page before, and we've looked at that page. 23 A. It's on Page 46, sir, yes. 24 Q. Doctor, what you said is there he is a rather i 53 1 unstable person who has made a very poor psychological . 2 adjustment to his original illness, isn't that right, sir? t i 3 A- Correct. , 4 Q. All right. Now, Doctor, what y o u ' r e s aying is that 5 he had an original illness, has an original illness, correct, 6 sir? 7 A. Correct. 8 Q. And he's m a d e a poor p s y c h o l o g i c al a d j u s t m e n t to 9 it, isn't that right, sir? 10 A. Yes, sir. 11 Q. Now, Doctor, you're not calling, y o u ' r e not saying 12 he doesn't have the original illness, you're just saying that 13 he's one of the kinds of p e r sons that c a n ' t a d j u s t to it, 14 that didn't adjust to it, correct, sir, isn't that correct, 15 sir? 16 A. We're saying that he made a poor p s y c h o l o g i c a l ii 17 adjus t m e n t . j i 18 Q. W o uld you answer my ques t i o n please, sir. i I 19 A. Yes, he m a d e a poor p s y c h o l o g i c al a d j u s t m e n t to his 20 original illness. l lI 21 Q. And this poor p s y c h o l o g i c a l a d j u s t m e n t w a s a major , 22 difficulty, which contributed to his present disability, | 23 isn't that correct, sir? 24 A. Didn't have any disability, sir. 54 1 Q. D o c t o r , didn't you tell us in the 1953 report that 2 this poor psychological adjustment was one of the major 3 difficulties which contributed considerably to his present 4 disability? 5 A. Yes, we did, and it's right in the report, sir. 6 Q. Doctor, you used the words to his present 7 disability, didn't you, sir? 8 A. Right, his -- 9 Q. Now, you say he didn't have any d i s a b i l i t y ? 10 A. He didn't have a real disability. 11 Q. Doctor, you didn't say that. Y o u d i d n ' t say to his 12 imagined disability. The words that you used, Doctor, in 13 Exhibit 1701 on Page 46 that you referred us to is that it 14 appears that he has two major difficulties, which may i 15 contribute considerably to his present disability? 16 A. Correct. 17 Q. Now, Doctor, you meant to say to his p r e s e n t 18 disability, didn't you, sir? 19 A. Yes, he was not w o r king at the time. 20 Q. Doctor, excuse me. D idn't you m e a n to s a y to his 21 present disability? 22 A. Yes, sir. 23 Q. And, Doctor, this -- one of these two m a j o r 24 difficulties was the fact that he had m a d e a p oor 55 1 psychological adjustment to his present disability, isn't 2 that correct, sir? 3 A. No, he didn't say that. 4 Q. Doctor that's exactly what you said. 5 A. No, his present illness, not disability. 6 Q. No, Doctor, you said to his present d i s a b i l i t y . 7 One of these two major difficulties, which may contribute 8 considerably to his present disability. 9 A. I thought you were reading the sentence b e l o w that, 10 sir, w h ich I think you were. 11 Q. Doctor, how can you say when I use the w o r d s to his 12 present disability, how can you say I was reading the 13 sentence below it, sir? 14 A. Okay. 15 Q. Doctor, his present d i s a b i l i t y at that t i m e was 16 contributed to by his psychological makeup, was it not, sir? 17 A. I believe so. 18 Q. That's what you said here, isn't it, sir? 19 A. Yes, sir. 20 Q. All right. Now, sir, but he had a p r e s e n t 21 disability that this psychological maladjustment contributed 22 to then, did he not, sir? 23 A. It was largely responsible for it, yes. 24 Q. Excuse me, sir. Did not cause, but c o n t r i b u t e d to, 56 1 correct, sir? 2 A. Yes, largely responsible for. 3 Q. Doctor, you didn't say largely responsible. Y o u 4 said which may contribute. You didn't even say that it did 5 for sure contribute to it, did you, sir? You just said this 6 poor psychological adjustment may contribute considerably to 7 his present disability, didn't you? 8 A. Yes, we did. 9 Q. You didn't say was the major cause of it, did you, 10 sir? 11 A. T h a t ' s what we said, sir. 12 Q. Excuse me. You didn't say it was a major cause of 13 it, did you, sir? 14 A. We didn't say that in this report, sir. 15 Q. And, Doctor, you didn't even say that it did in 16 fact contribute to it, you simply said it m a y c o ntribute to 17 it, didn't you, sir? 18 A. I think we were being cautious. 19 Q. Excuse me, Doctor. Could you answer my question 20 p l e a s e . 21 A. Yes, sir. 22 Q. You didn't even say that it caused it or did 23 contribute to it, you simply said it m ay contribute, didn't 24 you, sir? 57 1 A. Yes, we did, that's what we said. 2 Q. And his pres e n t d i s a b i l i t y at that time, sir, were 3 the problems that you related on Page 10 or 11 rather, the 4 aching, the shortness of breath, the heart palpation, the 5 flushing, the low back pain, the posterior cervical pain, 6 recurrent vertigo, sandy feeling in the eyes and depression, 7 correct, sir? 8 A. No, sir. 9 Q. Doctor, what other present d i s a b i l i t y -- what was 10 his present disa b i l i t y that you referred to? 11 A. His refusal to go back to work, sir, that was his 12 disability. 13 Q. Doctor, a refusal to go back to work is not a 14 disability? 15 A. Well, he- 16 Q. That ' s what comes f r o m a disability. My question, 17 sir, is what was the disability that you found him to have in 18 1953? 19 MR. HEINEMAN: Objection, it's b e e n asked and 20 answered. 21 T H E COURT; O b j e c t i o n is overruled. It has not. 22 A. W o u l d you read the last ques t i o n please. 23 (Court reporter read back the question.) 24 A. As I a n s w e r e d previously, his d i s a b i l i t y wa s his 58 1 refusal to go back to work on the basis of the complaints, 2 and we did not believe that the complaints were, in fact, 3 valid. 4 Q. Doctor, do you -- do you -- 5 A. We b e l i e v e d they were, exaggerated. 6 Q. Excuse me, Doctor. W h e r e did you say in here that 7 he exaggerated a single complaint? 8 A. I believe it's inferred in that first, in that 9 first item on Page 46, sir. 10 Q. Doctor, you d i dn't say anywhere that the man's 11 complaints were e xaggerated, did you, sir? 12 A. It's inferred in the statement we made. 13 Q. Doctor, my q u e s t i o n is-- No, Doctor, you can infer 14 something by reading anything. My que s t i o n is, Doctor, where 15 did you say that he exaggerated a single complaint that he 16 had, sir? 17 A. Well, my a nswer remains the same, sir. 18 Q. T h ere isn't a n y p l a c e here w h e r e you say the man 19 exaggerated the co m p laints, is there, sir? 20 A. That is our interpretation. 21 Q. That is your p r e sent interpretation. 22 A. No, it was then, sir. 23 Q. Doctor, did y o u -- 24 A. And it's not o n l y mine. O thers have said the same 59 1 thing. 2 Q. Doctor, please don't refer to others. You know ray 3 question refers to you. 4 MR. CARR: Your Honor, would you direct the jury to 5 disregard this outburst from the doctor that he knows clearly 6 is not responsive and not proper. 7 THE COURT: Ladies and gentlemen of the jury, you 8 are so ordered to disregard the doctor's last remark. It was 9 not responsive to the question that was asked of him. You 10 may proceed. 11 Q. Dr. Suskind, this m a n ' s p r o b l e m s that he had in '53 12 you described as sign i f i c a n t then, did you not, sir? 13 A. We felt that t h e y were significant, sir. 14 Q. My question, sir, is you d e s c r i b e d t h e m as 15 significant then, did you not, sir? 16 A. We desc r i b e d his -- his p r o b l e m as being 17 significant, sir. 18 Q. Yes, Doctor. Now, did those p r o b l e m s go away, sir? 19 A. Problems? Yes, t h e y did go away. 20 Q. And what is the evi d e n c e in this record that we 21 have that supports your c o n c l u s i o n that the probl e m s that he 22 had went away, sir? 4 23 A. In the 1979 e x a m i n a t i o n our int e r v i e w as well as 24 our findings indicate that those p r e v i o u s p r o b l e m s that he 60 1 complained about or the problems that he complained about in 2 1979/ which he believed he had in '53 and which he c a r r i e d 3 over in to *79/ we believed that they didn't exist a n y longer 4 except his psychoneurosis and when we consulted-- 5 A. Doctor# excuse me. You know again# Doctor, that 6 you're going beyond the parameters of my question# you know 7 you're in contempt of this Court in so doing# Dr. Suskind# 8 because I asked you in this record, did I not# sir? 9 MR. HEINEHAN: Objection, Your Honor. May counsel 10 approach the bench? 11 THE COURT: Sure. 12 (At this time a conference was had at the b e n c h out 13 of the hearing of the jury.) 14 MR. HEINEMAN: I object again to Mr. C a r r ' s 15 statement to this witness that he is in contempt of this 16 Court. That is for this Court to decide# not Mr. Carr. T his 17 Court has not yet made that decision# and I object to Mr. 18 Carr making such a statement to the witness. It's totally 19 improper and Mr. Carr knows it. 20 THE COURT: Do you have anyt h i n g to say? 21 MR. CARR: No, Your Honor. 22 TH E COURT: Like I said on a number of o c c a s i o n s 23 that this witness' actions are contemptuous. I think if X 24 would be ineffectual under the c i r c u m s t a n c es in w h i c h he 61 1 appears here and I am not -- I have observed him, and I am 2 not going to throw this 73 year old man in jail for contempt. 3 I have stated a number of times on a number of o ccasions that 4 his actions before this Court as a witness are contemptuous 5 so there happens to be a basis in the record for the 6 statement that was made. 7 MR. HEINEMAN: My point, Your Honor, is that that 8 may be the Court's feeling, and that's for the Court to 9 decide. 10 T H E COURT: Right. 11 MR. HEINEMAN: And the Court to do somet h i n g about 12 or the Court to say something about. It's not for Mr. Carr to 13 say anything to this w i t n e s s about, and I o bject to it. It's 14 an effort to influence the jury, to make some kind of 15 statement in front of the jury,and I object to it. It's 16 clearly improper. 17 THE COURT: Overruled. 18 (The following proceedings were had in open Court.) 19 Q. Doctor, do you have Exhibit 1743 in front of y ou? 20 A. I do, sir. 21 Q. Refer to that record please, sir, and tell me where 22 in that record you describe this man's prob l e m s as b e i n g 23 psychoneurotic. Let me di r e c t your a t t ention to P a g e 24. 24 That's the neuropsychiatric page, Doctor. Does it not say, 62 1 sir, in the neuropsychiatric column the words see below? 2 Does it say that, sir? 3 A. Yes. 4 Q. And below it says, does it not, episodes of 5 nervousness, palpations, stomach feels like it's falling out, 6 can't explain it, occasionally has visual signs a c c o m p a n y i n g 7 spells, doesn't go out much, afraid to meet people for fear 8 of having nervous attack, if something angina, signs of 9 something leg down, lasts about fifteen minutes, doesn't know 10 how long w ould last if couldn't relax, something for any 11 particular -- don't come for any particular reason ever since 12 exposure to product of explosion, becomes e a sily tired, also 13 subsequent to exposure acne all over, pain b e h i n d right knee 14 and left chest pain. You see that, sir? 15 A. Yes. 16 Q. Now, does it say anywhere on that page, sir, that 17 his problems are psychoneurotic? 18 A. No. 19 Q. Does it say anywhere on that page that he do e s n ' t 20 have real pain? 21 A. No. 22 Q. Does it say anywhere on that page that he d o e s n ' t 23 have real nightmares that started in *49? 24 A. This is simply a record of the interview, sir. No, 63 1 he doesn't say -- 2 Q. Does it say anywhere that he doesn't really have 3 nightmares or that's a product of a psychoneurotic, disturbed 4 person? 5 A. What is the question, sir? 6 Q. Does it say that he doesn't have nightmares and the 7 nightmares that he says that he has are a product of a 8 psychologically disturbed person or neurotic person? 9 A. I fail to see where he mentions nightmares, sir. 10 Does he mention nightmares here? 11 Q. Doctor, you know he mentioned nightmares in this 12 report d a ting from 1949. We went through it already, sir. 13 A. To another interviewer, sir, yes. 14 Q. Yes. My question is, Doctor, is there anywhere on 15 this page or any place else in this report where this man's 16 probl e m s of nigh t m a r e s that started in '49 are the p r o duct of 17 a psychologically, disturbed, neurotic person? 18 A. I'm unable to answer that question, sir. 19 Q. Well, Doctor, I submit to you that there is nothing 20 in this report that tells you that these night m a r e s are not 21 real, isn't that correct, sir? 22 A. T h e re's nothing in the doctor's interview that 23 mentions i t , s i r 24 Q. Doctor, m o r e than that. In this e ntire report 1743 64 1 that you have, sir, there is nothing that tells you or 2 anybody else that reads it that his nightmares are not real, 3 isn't that correct, sir? 4 A. I can't answer that question, sir. 5 MR. CARR: Your Honor, would you direct the witness 6 to answer that question, because he can answer that question. 7 THE COURT: Doctor, I have determined that the 8 question is proper. You are ordered to answer it. 9 A. Yes, X think there is. 10 Q. All right, Doctor. And what is -- where, what page 11 does it appear on, sir? 12 A. The fact that -- on Page 24. 13 Q. Excuse me, Doctor. On Page 24, Doctor, you referred 14 me to Page 24, and the next q u e s t i o n is you a l r e a d y told us, 15 Doctor, that there was nothing on Page 24 that refers to the 16 nightmares, did you not, sir? 17 A. Correct, sir. 18 Q. And, therefore, there is noth i n g on that p age 19 referring to the nightmares that says the nightmares are not 20 real, isn't that correct, sir? 21 A. No, what I'm saying is that it's -- 22 Q. Doctor, isn't that correct, sir? 23 A. T h e r e is no m e n t i o n of nightmares, sir, yes. 24 Q. Doctor, that isn't what I asked you. You can't 65 1 pose the question for me, sir, and then give an answer. 2 THE COURT: Wait a second. 3 MR. H E I N E M A N : My objection is the question said 4 referring to nigh t m a r e s on Page 24. 5 THE COURT: O b j e c t i o n is overruled. Go ahead, Mr. 6 Carr. 7 Q. Now, answer the que s t i o n that I asked you, Doctor. 8 A. Would you read the question please about 9 nightmares. 10 THE COURT: Doctor, I have ruled on that already. 11 Just wait till the next q u e s t i o n and answer please. 12 THE WITNESS: All right. Thank you. 13 THE COURT: Mr. Carr, you may proceed. 14 Q. Doctor, there is noth i n g on that page that refers 15 to nightmares and tells yo u that the n i g h t m a r e s are not real, 16 isn't that correct, sir? 17 A. There wa s n o t h i n g on that page, sir, yes. 18 MR. CARR: Your Honor, would you direct the witness 19 to answer m y q u e s t i o n ? 20 A. I have. I said t h e r e ' s n o t h i n g on that page. 21 MR. HEINEMAN: That answer is responsive. 22 THE COURT: You can rephrase it, Mr. Carr. 23 Q. No, you just a n s w e r e d part of the question. 24 MR. CARR: W o u l d you read the question to him again. 66 1 Q. You just a n s w e r e d part of the question, sir. 2 (Court reporter read back the question.) 3 A. There's nothing on this page. 4 Q. Could you a nswer that ques t i o n yes or no. Dr. 5 Suskind? 6 A. No. 7 MR. HRINEMAN: Objection, Your Honor. May counsel 8 approach the bench. 9 THE COURT: Yes, you may. 10 A. I thought I answe r e d it before. 11 THE COURT: Doctor, no comm e n t s please. 12 (At this time a c o n f e r e n c e was had at the b e n c h out 13 of the hearing of the jury.) 14 MR. HEINEMAN: Your Honor, that a n s w e r is d i r e c t l y 15 responsive. He asked him is there a n y t h i n g on this page, and 16 he says there is n o t hing on the page. 17 THE COURT: It's re s p o n s i v e to the first half of the 18 question. It is not responsive to the second half of the 19 question, and that is why reading it back or having it 20 repeated was proper. I a m no w orde r i n g h i m to a nswer the 21 entire question. He answ e r e d the first part only, and it was 22 responsive to the first part, but bei n g r e s p o n s i v e to the 23 entire question m e a n s a n s w e r i n g the s econd part also. 24 MR. HEINEMAN: Your Honor, w h e t h e r or not there's 67 1 anything on the page refers to the entire question. He's not 2 entitled to a yes or no answer. The witness is entitled to 3 give a responsive answer. 4 HR. CARR: We've already established there's 5 nothing on the page that refers to nightmares, I've already 6 asked that question. I am now incorporating his prior answer 7 to that part of the question in a new question and to make 8 sure that he doesn't wiggle out I'm saying now, there's 9 nothing on that page that refers to nightmares or tells you 10 that the nightmares are not real. 11 THE COURT: It's that second half that was not 12 a n s w e r e d . 13 HR. HEINEMAN: He says there's n o t h i n g on the page 14 that does either of those thing. 15 MR. CARR: But he didn't say that. 16 MR. HEINEMAN: Well, you didn't-- 17 MR. CARR: He didn't say that. 18 THE COURT: No, his answer was not responsive to the 19 second half of the question. It was responsive to the first 20 part only. You are making an inference w h i c h m a y be 21 reasonable, but w h i c h is not total and w h i c h under the 22 circumstances cannot be made. The second part of the 23 question was prope r l y framed, it was a proper qu e s t i o n , and 24 it is proper that he be directed to answer the s e cond half of 68 1 the q u e s t i o n also. O b j e c t i o n is overruled. After that I 2 think it's time to take a break 3 (The following proceedings were had in open Court.) 4 Q. Now, Doctor, would you please a n swer that question, 5 sir 6 A. Would you repeat the question please. 7 MR. CARR: Would you read the question to him. 8 (Court reporter read back the question.) 9 A. You want a yes or no answer, sir? 10 Q. Yes, please. 11 A. No, sir, there's nothing on that page. 12 Q. My question was, isn'tthat correct, sir, isn't 13 w h a t I said in that que s t i o n correct, sir? 14 A. Yes. 15 Q. All right. 16 A. You are correct. 17 THE COURT: Mr. Carr, is this a good point for a 18 break? 19 MR. CARR: Yes, your Honor. 20 THE COURT: We'll take a short recess at this time 21 and then resume testimony. I would remind you that you're 22 not to discuss this matter or among yourselves or with anyone 23 outside of the jury panel or as of yet form an y o p i n i o n s or 24 conclusions about the matters on trial. Court's in a short 69 1 recess. 2 (At this time a short recess was taken.) 3 4 (The following proceedings were had in open Court.) 5 MR. HEINEMAN: Excuse me, Your Honor, may counsel 6 approach the bench for a minute? 7 THE COURT: Sure. 8 (At this time, a conference was had at the b e n c h out 9 of the hearing of the jury.) 10 MR. HEINEMAN: Your Honor, with respect to Mr. 11 Carr's statement to the witness before that he was in 12 contempt, I objected, and the Court overruled m y objection. 13 THE COURT: I think he said was contemptuous, but 14 that's close enough. 15 MR. HEINEMAN: Whichever way it was stated. 16 THE COURT: Right. 17 MR* HEINEMAN: As the record will reflect, I wou l d 18 ask th a t -- I'm making a motion at this time that that remark 19 be stricken and that the jury be instructed to disregard it 20 as being improper. 21 MR. CARR: Your Honor, I think what -- it probably 22 should be stricken, and the jury should be instructed to 23 disr e g a r d it, because it indeed is just m y judgment, an d the 24 Court hasn't -- the Court did find him in contempt once, but 70 1 not for this problem and to waive the contempt finding 2 without explaining the circumstances -- and I think it 3 probably would be better to grant counsel -- that you do 4 instruct the jury that my statement should be stricken from 5 the record and the jury should be instructed to d i s r e g a r d it. 6 THE COURT: A g r e e d order if it's agreed, I'll do it. 7 (The following proceedings were had in open Court.) 8 THE COURT: Ladies and gentlemen, I would advise you 9 that the remark that was made earlier by Hr. Carr that this 10 witness is in cont e m p t is to be stricken from the record, and 11 you are ordered to disregard that remark. Mr. Carr, you may 12 proceed. 13 MR. CARR: Yes, Your Honor. 14 Q. Doctor, referring now to t h e -- back to the records 15 of Mr. W i l l a r d w it h respect to the n e u r o p s y c h i at r i e c o lumn of 16 the page that we been referring to, that neuropsychiatrie 17 exam i n a t i o n descri b e s a p e r s o n who says and des c r i b e s a 18 number of episodes of nervousness, does it not, sir? 19 A. It does, sir. 20 Q. And he in effect says that these nerv o u s n e ss 21 attacks don't come on for an y p a rticular reason, but that 22 he's had t h e m ever since e x p osed to the p r o duct of the 23 explosion, does it not, sir? 24 A . No, sir. 71 1 Q. Doctor, don't you recall we just read it, and if 2 you would look at about two inches from the bottom of Page 3 24, doesn't it say " don't come on for any particular reason 4 -- ever since exposed to product of explosion"? 5 A. Yes, sir, I see that, absolutely6 Q- All right7 A. But that's not referring to the nervousness- It 8 refers, I imagine -- 9 Q. What does it refer to? 10 A. It could refer to the -- 11 Q. Excuse me, Doctor12 A. Previous s e n t e n c e 13 Q. What does it refer to in your judgment, sir? 14 A. I don't know, but in the p r e v i o u s sentence -- 15 Q. Doctor, is it true then that you have no judgment 16 that it does or does not refer to the n e r v o u s n e s s , sir? 17 A. I don't know w h e ther it refers to the nervousness, 18 cause he says a lot of other things between that nervousness 19 palpitations, stomach feels like it's falling out, and he 20 can't explain it, but he goes on to say that he has problems 21 putting his leg down, and it last for f i f t e e n minutes, and he 22 doesn't know how long it would last if he cou l d n ' t relax and 23 after that, after that he says don't c o m e on for a particular 24 reason* Now, X don't know whether he's referring to the 72 1 nervousness or the leg problem. I assume he's referring to 2 the leg problem. 3 Q. Doctor, if he's referring to the leg problem, then 4 he's talking about pains that he's had ever since the 5 explosion? 6 A. No, he doesn't say pain in that. 7 Q. Doctor, he talks about that h i s -- 8 A. There's no word referring to pain in that sentence, 9 sir. 10 Q. What does it say, sir, the preceding sentence? 11 Would you read it for us, sir? 12 A. Well, it's a little d i f ficult to read this 13 handwriting, but it has something to do with putting his leg 14 d o w n . 15 Q. Doctor, could you just please read it for us, sir, 16 the best as you can. 17 A. I'm unable to read that part of it, but there's no 18 word for pain there. 19 Q. Dr. Suskind, could you read it please, sir, as you 20 did before, sir? 21 A. The handwriting is not v ery readable. 22 Q. Doctor, you interpreted it once in the past. 23 A. He has something when he puts his leg down. 24 Q. May I finish my ques t i o n please, Doctor? 73 X A. Sure. 2 Q. You have interpreted it in the past, y ou've drawn 3 conclusions from what it said in the past, so p l e a s e do the 4 same for us now, sir, read it for us now, tell us what it 5 says? 6 A. I haven't drawn a n y c o n c l u s i o n s f r o m it, sir. 7 Q. Well, Doctor, I a s k e d you to d r a w c o n c l u s i o n s b a s e d 8 upon this record that you have here, 1743, what problems the 9 man has had since the time of the explosion? 10 A. Yes, sir. 11 Q. And you have read this n e c e s s a r i l y in c o m i n g to 12 your conclusions, haven't you, sir? 13 A. Yes, sir. \ 14 Q. All right. Now, Doctor, p lease do it a g a i n and give 15 us the benefit of how this sentence reads? 16 A. Shall I start f r o m the v e r y be g i n n i n g , e p i s o d e s of 17 nervous, sir? 18 Q. No, because that we have read a n d we h a v e no 19 problem with that, sir. I want you to read that sentence 20 that you believe the c l ause refers to that he's had this 21 problem ever since exposed to the product of the explosion. 22 That's what I want you to do for us, sir, if yo u b e l i e v e that 23 that clause just refers to that s e n t ence? 24 A. It has something to do with not being able to put 74 1 his leg down, and it lasts for fifteen minutes. 2 Q. Doctor, y o u 1re now interpreting for us. I'm a s k i n g 3 you to read it for us. 4 A. I'm unable to read the first three. Perhaps others 5 in this room can help us if they can, but I'm not able to 6 read after if. 7 Q. Well then, Doctor, what you can do is read C - I - N 8 leg down. Interpret that for us, sir? 9 A. Well, I don't know what happens when he's not able 10 to put his leg down. 11 Q. Excuse me, Doctor. Just read it for us please, sir. 12 You' v e interpreted it once. Interpret it for us again. 13 A. There's a sentence w h i c h starts w i t h if. 14 Q. Yes. Then read the next one, read the next w ord 15 that you can, sir. 16 A. Something -- if not around anyone. I think that's 17 how it reads, if not around anyone. 18 Q. Doctor, what it says is if not a r o u n d a n y o n e and 19 can lay down, his nervous attacks last fifteen minutes. 20 A. It doesn't say nervous attacks. 21 Q. Oh, Doctor, what is it referring to? T h e entire 22 neuropsychiatrie p r o file here it talks about, it s t arts out 23 episodes of nervousness, doesn't it, sir? 24 A. Okay. 75 1 Q. It gives these episodes, and it describes the 2 episodes? 3 A. Correct. 4 Q. Then it says if not around anyone and can lay down, 5 lasts fifteen minutes. Now what about fifteen minutes? 6 D o e sn't know how long would last if couldn't relax. W h a t is 7 the man talking about, sir? 8 A. I would assume, sir, that he's talking about his 9 previous complaints, which is palpitations, nervousness, 10 stomach fullness. 11 Q. It talks about what is c alled episodes of 12 nervousness, correct, sir? 13 A. T hat might be so, sir, yes. 14 Q. Doctor, there isn't any question about it. A n d he's 15 had these episodes of nervousness according to this ever 16 since the exposure to the product of the explosion, isn't 17 that correct, sir? 18 A. .This is what the record reads, sir. 19 Q. Doctor, you could read it for us, and it does say 20 as I suggested to you that it said. It says he's had this 21 episodes of nerv o u s n e s s ever since the explosion, d o e sn't it, 22 sir? 23 A. That ' s what it reads, sir. 24 Q. Now, Doctor, you know that most of these others 76 1 have also said they've been nervous since the explosion, 2 correct, sir? 3 A. Some of them may have, sir* 4 Q. And you found in your 1953 examination that they 5 were nervous and had complaints of nervousness, many of them, 6 did you not? 7 A. Some of them did, sir, but since the explosion is 8 another matter, sir. 9 Q. Doctor, he's talking about now problems that he has 10 had, one problem that he has had, episodes of nervousness, 11 isn't he, sir? 12 A. Yes, sir. 13 Q. Now, Doctor, if he's had this episodes of 14 nervousness, are you interpreting that to mean that he is 15 p s y c h o n e u r o ti c ? 16 A. I b e l i e v e he is, sir. 17 Q. Are you interpreting this to mean that he is 18 psychoneurotic, sir? 19 A. I b e l ieve that -- yes. 20 Q. D o c t o r -- 21 A. The w hol e d e s c r i p t i o n is a d e s c r i p t i o n of a 22 psychoneurotic man* 23 Q. I think you answ e r e d my question when yo u said 24 yes. 77 1 A . Yes. 2 Q. Now this pa r t i c u l a r p s y c h o n e u r o si s is dat e d 3 according to this exhibit from the time of his exposure, 4 isn't itf sir? 5 A. No, sir. 6 Q. W h e n is it d a t e d from, sir? 7 A. A c c o r d i n g to this p a rticular sentence it is, but 8 he-- 9 Q. Yes, that's what I' m talking about. 10 A. But he d idn't have it in '49 and *50. 11 Q. Now, Doctor, what else in this report suggests to 12 you that it's not dated from the time of the e x p o sure? 13 A. I don't b e l i e v e in this report, sir, in this report 14 15 Q. Every t h i n g in this report. Doctor -- 16 A. In this report there is nothing to co n t r a d i c t it. 17 However, there is something to contradict it. 18 Q. Doctor, excuse me. Now, you know that I'm asking 19 about this report. 20 A. Okay. 21 Q. You're doing it again, aren't you, Doctor? Y o u know 22 that you're doing something that isn't proper when you add 23 that, don't you, sir? D o n ' t you, sir? 24 A. I'm only trying to be complete, sir. 78 1 Q. Doctor, you know that y ou're doing something that 2 is improper when you add that? 3 A. No, sir. 4 Q. You been told by the Court you can make y our 5 explanations on redirect, you been told, you been begged by 6 me to please respond to the questions and not require me to 7 go down some other path so that I can finish this particular 8 point, haven't you, sir? Haven't I begged you to do that, Dr. 9 Suskind? Haven't I, sir? 10 A. You have asked me, sir. 11 Q. Doctor, n o w referring to this report, sir, do you 12 understand what I'm asking you to refer to t his report, sir? 13 A. I am, sir. 14 Q. And, Doctor, this report dates this m a n ' s p roblems 15 from his exposure to the p r o d u c t s of the explosion, does it 16 not, sir? .17 A. That's what it reads, sir. 18 Q. Yes. An d there is n o t h i n g in this report that 19 contradicts that, is there, sir? 20 A. Not in this report, sir. 21 Q. All r i g h t . Now, Doctor, this a c c o r d i n g to these 22 problems then that are dated to the time of the exposure are 23 problems that did not go a w a y a c c o r d i n g to this record, isn't 24 that correct, sir? 79 1 A, No, sir. 2 Q. Doctor, didn't v/e e s t a b l i s h that this report has 3 nothing in it to contradict the statement that he's had these 4 problems since the exposure? Didn't we just establish that, 5 sir? 6 A. No, sir. 7 MR. CARR: Your Honor, would you ask the -- would 8 you read back the question that I asked with reference to 9 that report so the witness can be reminded that he did say 10 that, sir. 11 THE COURT: W h y don't you read it? 12 A. W ould you read it back please? 13 (Court reporter read back the question.) 14 A. Not in this report, sir. 15 Q. Does that refresh your memory, sir? 16 A. Yes, sir. 17 Q. All right. Doctor, then a c c o r d i n g to this report 18 his problems did not go away, did they, sir? 19 A. I really can't say, sir, I cannot answer that 20 question directly. 21 Q. Doctor, are you referring to this report? 22 A. I am referring to this report. 23 Q. Accordin g to this report w e r e his p r o b l e m s d a t e d to 24 the exposure to the product, sir? 80 1 A. Yes, sir. 2 Q. Did they go away according to this report or did he 3 still have them at the time he was examined in *79 according 4 to this report? 5 A. Would you read the question please. 6 (Court reporter read back the question.) 7 A. According to this report it's my interpretation 8 that the problems that he had in *49 and *50 went away. 9 Q. And, Doctor, where in this report, what i nformation 10 is there in this report, direct me to the material that tells 11 you the problems went away. What do you b a s e that o p i n i o n 12 upon, sir? 13 A. The interpretation of his -- 14 Q. Excuse me, Doctor. Di r e c t me to the p l a c e in the 15 report where it has that fact that supp o r t s y our 16 interpretation? 17 A. I said it was ray i n t e r p r e t a t i o n -- 18 MR. HEINEMAN: Excuse me, Your Honor. Object. The 19 question was what was in the report, then d i r e c t me to the 20 report. 21 Q. Direct me to the report please, sir. W h a t is in the 22 report, sir, to support your interpretation? 23 A. The paragraph w r i t t e n by the e x a m i n i n g p h y s i c i a n 24 about the psychoneurotic problem. 81 1 Q. Doctor, that par a g r a p h is what we just b een 2 reading? 3 A. Yes, sir. 4 Q. In which he describes episodes of nervousness? 5 A. Right. 6 Q. And those according to your examining d o c t o r there 7 he writes down, does he not, sir, ever since exposed to 8 product of explosion? Isn't that his handwriting, sir? 9 A. It is, sir. 10 Q. And he ties it up, does he not, with the explosion, 11 does he not, sir? 12 A. He didn't, the patient did. No, the doctor did 13 not, sir* 14 Q. Did the doctor say that it wasn't tied up to it? 15 A. The doctor is simply repeating w h a t the p a t i e n t 16 said. 17 Q. Doctor, did the examining doctor take it a w a y from 18 the exposure, did he say he didn't believe him? 19 A* The examining doctor simply repeated what the man 20 said, sir. 21 Q. Doctor, ray question is did the examining d octor say 22 he didn't believe him? 23 A. No. 24 Q. And, Doctor, do you b e l ieve the m a n w h e n he says 82 1 that he's had these episodes of nervousness ever since 2 exposure to the product? 3 A. Absolutely not, I do not believe him, sir. 4 Q. T h e n what y o u ' r e saying is the man is lying? 5 A. No, the man believes that he did, but in the 6 history of this man's record in *49 and '50 he didn't have 7 these things, sir. 8 Q. Doctor, he didn't have these problems that we went 9 through a number of times in 1953? Didn't you report, sir, 10 that he had significant prob l e m s associated w i t h -- 11 A. In *53 he had the palpitations, sir, but not in *49 12 and *50, and the b u s i n e s s about lying down and being nervous 13 he did not have in *49 and '50. T hat's in the record, sir. 14 Q. Doctor, did he not have pains in his legs in '49? 15 A. Yes, he did. 16 Q. Didn ' t t h e y b e come severe, sir? 17 A. He c l a im e d t h e y did, sir, yes. 18 Q. T h at's in '49, correct, sir? 19 A. Yes. 20 Q. And didn't he have pains in the chest, sir, in *49 21 and loss of libido and insomnia, sir? 22 A. Yes, sir. 23 Q. Didn't he have those p r oblems then in *53, the 24 chest aching, the shortness of breath, the low back pain i 83 1 posterior cervical pain, the depression, sir? 2 A. He complained about some of those problems, yes, 3 sir. 4 Q. He complained about all of those problems. I just 5 read tlo you from the *53 report. 6 A. I thought you w e r e reading from the *49 report, 7 sir, which is what we were referring to originally. 8 Q. No, I'm a s king you now, sir, about *53, frequent 9 headaches, aches and pains, extreme fatigue, nightmares, 10 numb, loss of libido, and in *53 at the time you -- I'm 11 reading the wrong man, I'm sorry -- the presternal aching, 12 the marked shortness of breath, the heart palpations, the 13 flushing, the low back pain, the cervical pain, the vertigo, 14 the sandy feeling and the d e pression were problems that he 15 still had, sir, in *53? Isn't that correct, sir, on Page 11 16 of the 1953 report, sir? Doctor, are you referring to Page 17 11? 18 A. I am reading it now, sir, yes. 19 Q. And he had those prob l e m s in '53, didn't he, sir, 20 according to his statement, according to your report of his 21 statement? 22 A. W ould you read the whole question please. 23 Q. Doctor, do you understand my question? 24 A. Well, I want to make sure I know what problems 84 1 you're talking about in *53, sir. 2 Q. Doctor, let me repeat them again, Doctor. He 3 complained of in 1953 the presternal aching, the shortness of 4 breath on exertion, heart palpations, flushing, low back pain 5 posterior neck pain, recurrent vertigo, that's dizziness, 6 sandy feeling in the eyes and depression, isn't that correct, 7 sir? 8 A. He complained of those things, and they are 9 different than *79. 10 Q. Doctor -- Doctor, do you c o n c e i v e in *79, did you 11 find in '53 that he was a poor p s y c h o l o g i c al adju s t e d person, 12 nervous? 13 A. Yes, we did, sir. 14 Q. Doctor, d idn't he in *79 have the same p r o b l e m of 15 nervousness that yo u said he had in '53? 16 A. I'm unable to find the word n e r v o u s n e s s in '53, 17 sir. 18 Q. D i dn't you tell us just a m o m e n t ago, sir, that 19 this was a psychoneurotic person? 20 A. I did, sir. 21 Q. Isn't a n e u r o t i c p e r s o n one that is by d e f i n i t i o n a 22 nervous person? 23 A. But it d o e s n ' t a p p e a r in the record. 24 Q. Excuse me, Doctor, isn't n e u r o t i c p e rson one 85 1 that's a nervous person? 2 A. Yes, sir. 3 Q. Didn't you tell us it was your judgment f r o m 1953, 4 sir, that he was a neurotic nervous person? 5 A. We said he was a neurotic person. 6 Q. Didn't you say that, sir? 7 A. Yes, sir. 8 Q- So, therefore, you found in 1953 that he w a s a 9 nervous person, didn't you, sir? 10 A. It was our judgment, sir, that he was a nervous 11 person. 12 0. He's got that same p r o b l e m in 1979, hasn't he, sir? 13 A. He has a p s y c h o n e u r o t i c p r o b l e m in '79, sir, yes,. 14 0. He has the same p r o b l e m of n e r v o u s n e s s in '79, 15 doesn't he, sir according to your statement of your m a n that 16 did the examining that he said? 17 A. No, sir. No, sir. 18 Q. Doctor, didn't we j u s t -- 19 A. He didn't com p l a i n of n e r v o u s n e s s in '53, sir. 20 Q. Doctor, you found that he was n e r v o u s in *53, 21 didn't you, sir? 22 A. We found that he was a p s y c h o n e u r o ti c , but he 23 didn't complain of nervousness. 24 Q. Didn't you find, sir/ that he was nervous in '53, 86 1 that he was a nervous individual, sir? 2 A. He was a psychoneurotic individual, yes, sir. 3 Q. W o uld you answer my question, sir? Is that a yes, 4 you did find that he was nervous in *53? 5 A. It was our overall estimate that he was, yes. 6 Q. And he also told you in '79 that he was nervous, 7 didn't he, episodes of nervousness? 8 A. He said he had episodes of nervousness. 9 Q. So he said in *79 that he was nerv o u s as you found 10 him to be in `53, isn't that correct, sir? H A. Yes, sir. 12 Q. Yes. And that p r o blem didn't go away, did it, sir? 13 A. Yes, sir, it did go away. 14 Q. Doctor, did he say that he had the p r o b l e m in *79 15 that you found him to have in *53? 16 A. Yes, sir. 17 Q. Yes. If he has that problem, he has that problem, 18 hasn't he, sir? 19 A. Yes, sir. 20 Q. And if he has it, it d idn't go away, d i d it, sir? 21 A. The psychoneurosis didn't go away, sir, no, sir. 22 Q. The nervousness that you f o u n d -- 23 A. The psyc h o n e u r o si s did not go away, sir. 24 Q. Sir? 87 X A. The p s y c h o n e u r o s i s -- 2 Q. Did you understand that I used the word 3 nervousness, Doctor? 4 A. I understand you did, but -- 5 Q. I didn't use the word p s y c h o neurosis. C o u l d you 6 answer my question, sir? Did the nervousness that you found 7 him to have in '53, did it go away or did he still have 8 episodes of nervousness according to him in 1979? 9 A. He had episodes of nervousness in 1979, he 10 describes it, sir. 11 Q. Could you answer my question, sir. 12 MR. CARR: Read the question to him again please. 13 (Court reporter read back the question.) 14 MR. HEINEMAN: Object, the witness just answered 15 that question. 16 THE COURT: Obj e c t i o n is overruled. It was not 17 answered. 18 A. My answer was, yes, it went away, sir. 19 Q. Doctor, my question was did he still have the 20 complaints of nervousness according to him, was he still 21 nervous in *79 according to him? 22 A. He was still nervous, he was nervous in '79, yes, 23 sir. 24 Q And did you find him to be nervous in '53? VI KJ 1 A. He did not complain of nervousness in '53, sir* 2 MR. CARR: Your Honor, would you direct the witness 3 to answer my question. 4 A. The answer is ho, sir, we did not find him. 5 Q. You did not f i n d hi m to be nervous in '53? 6 A. We did not get a complain of nervousness. 7 Q. Doctor, do you u n d e r s t a n d m y question? 8 A. I do indeed, sir. 9 Q. I didn't say complaint, did I, sir? I asked y o u -- 10 A. I interpreted your sent e n c e to m e a n -- 11 MR. CARR: Y o u r Honor, w o u l d you d i rect the witness 12 that he is absol u t e l y p l a y i n g games. He knows e x a c t l y what 13 I'm asking him. 14 MR. HEINEMAN: O b jection, Y o u r Honor. Ma y counsel 15 approach the bench? 16 THE COURT: Yes, you may. 17 (At this time a c o n f e r e n c e wa s had at the bench out 18 of the hearing of the jury.) 19 MR. HEINEMAN: Now, Your Honor, I object to Mr. 20 Carr's request that you instruct this w i t ness that he's 21 playing games. That is not a proper request. It would not 22 be a proper instruction f r o m the Court, and I w o u l d ask the 23 Court not to give such an instruction. I object to the 24 statement of counsel as b e i n g n o t h i n g but a jury speech, 1 something to enhance his position with the jury* that is* 2 counsel's position with the jury, and I object to it on that 3 basis. The Court may decide to instruct the witness with 4 respect to certain things that are proper for the Court to 5 instruct the witness, but playing games is not such an 6 instruction, and I o bject to it. 7 MR. CARR: I have nothing to say on the point. 6 THE COURT: There is no question that this witness 9 is attempting to evade the answer. He was asked about 10 complaints, he is answ e r i n g in terms of interpretation. He 11 happens to be game playing. X think the proper instruction 12 w o u l d be for him to answer the question that was asked of 13 him, and that is the instruction that I intend to give. 14 There's no question in my mind that this witness is 15 d e l i b e r a t e l y trying to evade the question that was asked of 16 him, and that is the instruction I will give. 17 MR. HEINEMAN: Obviously, Your Honor, I disagree 18 with your interpretation, and I ask that Mr. Carr's statement 19 about game playing be stricken and that the jury be 20 i n structed to d i s r e g a r d it. 21 THE COURT: O b j e c t i o n is overruled. 22 (The following proceedings were had in open Court.) 23 THE COURT: Doctor, I'm going to ask you to listen 24 to exactly what it calls for in the terms that it calls for 1 and answer that question and that question alone, no other, 2 no more and no less please. Mr. Carr, would you repeat your 3 question. 4 Q. Doctor, did you not find in 1953 that Mr. W i l l a r d 5 was a nervous individual, sir? 6 A. We found that he was a nervous individual, yes. 7 Q. Doctor, did he not have complaints of episodes of 6 nervousness in 1979 that he dated back to the time of the 9 exposure? 10 A. He had episodes of nervousness w h i c h he dated back 11 to the 1949. t 12 Q. Now, what in this record is their, sir, that tells 13 you that this m a n' s nervous problems that you found him to 14 have in 1953 went away? 15 A. T here is nothing in this p a rticular record, nothing 16 in this record w h i c h indicates that he was -- that the 17 n e r v o u s n e s s w h i c h he compl a i n e d about in 1953 did not go 18 away, nothing in this record, sir. 19 Q. Doctor, you told us earlier that he didn't c omplain 20 of n e r v o u s n e s s in 1953, you found the nervo u s n e s s in 1953. 21 He didn't complain of it in *53. Don't you recall that, sir? 22 A. We said he was a psychoneurotic in *53, yes, sir. 23 Q. Don't you recall, sir, that he did not complain. 24 that you said he didn't complain of nervousness in '53, but 1 that you found the nervousness in '53? 2 A. We found he was a psychoneurotic in *53, y e s f sir. 3 Q. Doctor, t hat is not a yes to my question. M y 4 question is didn't you find that he was a nervous person in 5 '53? 6 A. If nervousness and psychoneurosis is the same, yes, 7 sir. 8 Q. Doctor, aren't you the one that said they w e r e the 9 same? 10 A. No, they're not necessarily so. 11 Q. Doctor, aren't you the one in this c o u r t r o o m ten 12 m i n u t e s ago that said they were the same, sir? 13 A. T h e y could be overlapping, but they're not 14 identical. I can be nervous -- 15 Q. Doctor, m y question is are y o u -- 16 A. I can be nervous and not be a psychoneurotic. 17 Q. Doctor, listen to my question, would you? Aren't 18 you one that told us the neurosis and the nervousness mean 19 the same? 20 A. It can m e a n the same thing. 21 Q. My question is aren't you the one that told us 22 that, sir? 23 A. I may have if it's in the record, sir. 24 Q. Don't you recall just saying it a few m i n u t e s ago, 1 Doctor? 2 A* I don't know whether I did, but what I m e a n t -- 3 Q. Doctor, don't you recall just saying it a few 4 moments ago? 5 A. Yes. What I meant, sir, is-- 6 Q. Doctor, my question is d o n't you recall saying it 7 just a few moments ago? 8 A. I do. 9 Q. Now, Doctor, if this man has in fact, if he was 10 telling the truth that he had episodes of n e r v o u s n e s s in '79 11 that he dates back to the explosion, that's a p r o b l e m that 12 did not go away, isn't that correct, sir? 13 A. No, sir. 14 Q. Does he have the p r o blem according to him in '79? 15 A. He has a p r o blem in *79, yes, sir. 16 Q. Did he have that p r o b l e m in '79 a c c o r d i n g to him, 17 sir? 18 A. According to him, sir? 19 Q. Yes. 20 A. Yes, according to him, sir. 21 Q. Did it go away, sir? 22 A. N o ; according to him it didn't go away. 23 Q. All right. 24 THE COURT: Mr. Carr, is this a good point 1 for lunch? 2 MR. CARR: Yes, your Honor. 3 THE COURT: W e 111 break at this time. W e ' l l resume 4 again at 1:15. The admonishments I gave you earlier will 5 apply during this break also. Court's in recess for lunch. 6 (At this time a short recess was taken.) 7 8 (The following p r o c e e d i n g s were had in open Court.) 9 Q. Dr. Suskind, do you still have 1778 in front of 10 you, sir? 11 A. Yes, I do. 12 Q. Doctor, there were in fact two neurological 13 examinations condu c t e d of Mr. Willard, was there not, as 14 shown by that report, that is, the Mt. Sinai report? 15 A. There appear to be, sir, yes. 16 Q. There was one that took p l a c e in the section called 17 the general physical examination section, isn't that correct, 18 sir, beginning on Page 9574440? 19 A. Yes, there was one under that group, yes. 20 Q. And the -- that p a r t i c u l a r page in the -- rather 21 that particular section has on Page 46 in that section the 22 neurological reflex examination, d o e sn't it, sir? 23 A. It does, sir. 24 Q. And it has just -- it has the block for if all the 1 reflexes were normal off to the left, doesn't it, sir? 2 A. Umhm. 3 Q. Then it has tw o p a r a l l e l b locks for each p a r t i c u l a r 4 reflex on the right and left, doesn't it, sir? 5 A. Correct. 6 Q. Then there's a code given for the use of that 7 particular table, isn't there, sir? 8 A. Yes, there is. 9 Q. It's I for increased, D for d e c r e a s e and A for 10 absent, correct, sir? 11 A. Correct. 12 Q. Its not a n u m b e r i n g system, but it is a letteriing 13 system as I have indicated, isn't that correct, sir? 14 A. Yes. 15 Q. And in the case of Mr. W i l l a r d there w e r e no blocks 16 filled in, were there, sir, by any letters? 17 A. None of those letters. 18 Q. That would indicate that the exam i n e r found his 19 reflexes to be normal? 20 A. I b e l i e v e so. He checked the normal box, sir, yes. 21 Q. And he checked the normal box because he found the 22 reflexes were not increased, w ere not decreased and were not 23 absent, c o r r e c t , sir? 24 A. Correct, s i r . 50 1 Q. All right. So it's clear that his idea of grading 2 the reflexes is that he will check the -- if they are 3 abnormal, he will put the letter in, either increased, 4 decreased, or absent, that's considered abnormal according to 5 this particular page, is it not, sir? 6 A. I would believe so, yes. 7 Q. If they are not increased and if they are not 8 decreased and if they are not absent, they would be 9 considered normal, and he would put a check in the normal 10 box, correct, sir? 11 A. I w o u l d b e l i e v e so, yes. 12 Q. Now there is a special neurological examination 13 section for this p a t i e n t as well, is there not, sir, for 14 special n e u r ologic a l exam? It follows, immediately follows 15 the general physic a l section, starts on page 9574448, does it 16 not, sir? 17 A. Yes, I have it b e f o r e me, sir. 18 Q. It is ca p t i o n e d special neurological exam, isn't 19 it, sir? 20 A. It is, yes. 21 Q. And the reflex exami n a t i o n is found on Page 4453 in 22 that section, isn't it, sir? 23 A. Yes, it is, sir. 24 Q. And that is the page that has this scale for the X reflexes, the numbering system, one equals absent> two 2 sluggish and so forth, correct, sir? 3 A. Correct, sir. 4 Q. And in the columns on that particular page there is 5 the number two entered for these reflexes, upper and lower 6 extremities, i s n 1t it, sir? 7 A. Correct. 8 Q. Two acco r d i n g to that scale means what, sir? 9 A. According to this scale it would mean sluggish. 10 Q. All right. Now, Doctor, this special neurological 11 exami n a t i o n found his reflexes to be sluggish, correct, sir? 12 A. Yes. 13 Q. And the interpretation of that, of those sluggish 14 reflexes by Drs. Moses and Selikoff is found on the first 15 page of P l a i n t i f f s 1 Exhibit 1778, i s n 't it, sir, the second 16 paragraph, and this is a part that has been passed to the 17 jury, i s n 't that correct, sir? 18 A. Yes, I believe so. 19 Q. And they -- these tests performed on Mr. W i l l a r d 20 are interpreted to be decreased deep tendon reflexes 21 bilaterally, upper and lower extremities, correct, sir? 22 A. Yes. 23 Q. So they have interpreted the sluggish reflexes to 24 be decreased reflexes, haven't they, sir? __ y/ 1 A* That is correct, sir. 2 Q. All right. Now, Doctor, the -- we have gone t h r o u g h 3 the 11 persons who have been re-examined, have we not, sir, 4 that re shown on Plaintiffs' Exhibit 1734 and 1734A? 5 A. We haven't gone through all of them, no, sir, we 6 have not 7 Q. Well, Dr. Suskind, we have whether you remember it 8 or not, but we have gone through otherwise they couldn't be 9 on this board and we-- 10 A. I'm sorry, I thought you were referring to the way 11 we just did it, sir, individual by individual. 12 Q. Well, Doctor, we went through them individual by 13 individual as well. 14 A. No, sir. 15 Q. The way we just did it? 16 A . N o , sir. 17 Q. I'll suggest to you that your m e m o r y is not as 18 clear on the point as it should be, and the record will speak 19 for itself. Doctor, in addition to going th r o u g h these 20 individuals, we, of course, have accounted for 13 of the 21 other 36, have we not? 22 MR. CARR: Let me have a number 1 7 46A please. 23 MR. HEINEMAN: Objection, Your Honor. May counsel 24 approach the bench. 1 THE COURT: Sure. 2 (At this time a c o nference was had at the bench out 3 of the hearing of the jury.) 4 MR. HEINEMAN: I think I object to Mr. Carr's 5 statement about -- about the witness1 recollection, because 6 my recollection is also that I don't think we've covered 7 Charles Arthur yet in this last go round when he started 8 going through them one by one as to whether their situation 9 had changed with time. He went through Arthur when he went 10 through that Exhibit 1734, I think it is, but he d i d n ' t go 11 through Arthur, I don't think, in this last go round. I 12 object to his statement about the witness' recollection. I 13 think the witness' recollection is correct. 14 MR. CARR: If his is correct, he can point it out on 15 redirect, counsel, and show up that I did not cover him. 16 THE COURT: Let's go ahead. At some point in time 17 they've all been gone through 18 (The following proceedings were had in open Court.) 19 (Plaintiffs' Exhibit 1746A marked for 20 identification.) 21 Q. Doctor, the 1746A is a blow u p of 1746 that you have 22 in front of you, is it not, sir? 23 A. I have 1748, sir. Is that right? 24 Q. No, you've got a different -- 3 i\. 1 A. It's the same names and the same causes of death 2 and so on. I don't believe I have that, sir, not in front of 3 me. 4 Q. Well, we did have two Exhibits 1746 and 1748. 5 Could you give us please 1746? Here is 1746, and it is -- 6 1746A is a blowup of that, is it not, sir? 7 A. Yes, it is, sir. 8 Q. Doctor, 1748 -- 9 MR. CARR: Your Honor, I'd offer 1746A into 10 evidence. 11 THE COURT: A n y objection? 12 MR. HEINEMAN: We'd like to interpose the same 13 objections that we did w i t h respect to 1746 and I think 14 1745. I think the two were connected, as I recall, Your 15 H o n o r . 16 THE COURT: T h e y ' r e incorporated. It's a d m i t t e d 17 over objection. 18 Q. Doctor, 1748 is the e x h ibit that is -- has the same 19 men's name listed and identified, gives the life expectancy 20 and the average age as well, does it not, sir? Let me hand 21 you 1748 so you can be -- oh, you do have a c o p y of 1748? 22 A. Yes. 23 Q. It shows the life ex p e c t a n c y of each individual, 24 the plus or minus number of years and the average age at xuu 1 death. Otherwise/ it contains the same information as 1746/ 2 does it not/ sir? 3 A. Yes, it does. 4 Q* Yes. Now, Doctor, these reports that you m a d e over 5 the years as we have mentioned before, have been relied upon 6 and have been used by others in attempting to discover what's 7 -- what can be the consequences or health effects from 8 exposure to dioxin. Do you recall that, sir, we went through 9 that? 10 A. Are you referring to specific reports, sir? 11 Q. Doctor, I'm referring to the reports that you have 12 made in '73 and '78 and in '80 all as shown in the exhibits, 13 Plaintiffs' Exhibit 1751 that your reports have been reli!edt 14 upon as to the health effects of these Nitro w o r k e r s by the 15 world in general and scientific world in particular. Do you 16 recall that, sir? 17 A. We have m a d e -- we have made explana t i o n s of the 18 effects of exposure to 2,4,5-T manufacturing in the papers 19 you mentioned, yes, sir. 20 Q. Doctor, that isn't the question that I have asked 21 you. Now, if the yes, sir relates to the q u e s t i o n I asked 22 you, I'll accept it, but m y ques t i o n w a s not as you related 23 it, sir, but my question was these reports have been relied 24 upon with reference to the health effects from Nitro workers -LUX 1 by the world in general and scientific world in particular# 2 isn't that correct# sir? 3 A X assume they have# sir. 4 Q. And# Doctor# yo u also -- are you aware, of the fact 5 that the EPA reviews reports of this sort and uses reports of 6 the sort you have made in arriving at conclusions as to what 7 to do with dioxin spills and dioxin exposure? 8 A. I'm aware of the EPA reports, sir, yes, sir. 9 Q. Is that a l s o a ye s to m y question, sir, that you're 10 aware that the EPA uses reports of this sort and relies upon 11 reports of this sort in m a k i n g decisions relative to dioxin 12 spillage and c o n t a m i n a t i o n and things of that sort, relying 13 upon them among other things, not just on your reports? 14 A. I w ould have to a nswer no to that, sir, because -- 15 go ahead -- I'm a n s w e r i n g no to that, sir. 16 Q. You're not a w a r e of the fact that the EPA, has used 17 and relied upon your reports, sir? 18 A. Some reports, yes, some they have quoted# others 19 they haven't. 20 Q. Well, you k n o w t h e y ' v e relied upon your reports as 21 to the longevity of the h e a l t h effects of dioxin upon the 22 Nitro workers as y o u ' v e reported it, you know that? 23 A. No, sir. 24 Q. You don't k n o w that? J.UZ 1 A. About longevity, no, sir, I never heard them quote . 2 about longevity. 3 Q. Y o u ' v e never hea r d them talk about how long these 4 symptoms last, sir, according to your reports? 5 A. Longevity means length of life, sir. 6 Q. Doctor, I'm t a l king about l o n g evity in terms of the 7 health effects, the system, sir, the health effects upon the 8 human system, the longevity of those health effects? 9 A. Are you talking about persistence, sir, or lack of 10 persistence? 11 Q. Yes, how long those h e alth effects last, sir. \ 12 A. They may have. 13 Q. Well, don't you know that they have, sir? 14 A. Well, I can't quote offhand that they have, but 15 they may have. 16 Q. Well, you expect t h e m to at least, you expect them 17 to rely upon reports that you make, sir, that these are 18 problems that last for a couple of years and then go away, 19 you expect them to rely upon that kind of report, don't you, 20 sir? 21 A. I w ould hope that they w o u l d rely on my report, 22 s i r . 23 Q. Is that a yes to my question, sir, that you expect 24 them to rely upon the statements that you make as to how long iUJ 1 these health effects last, how long the chronic symptoms 2 last? 3 A. I would hope that they would, sir, yes. 4 Q. Yes. And are you aware that their most recent 5 publication on the health effects of dioxin relies upon what 6 you have said relative to how long these symptoms are 7 lasting? 8 A. W hile I have read some of the EPA reports I ' m not 9 sure what you're referring to at this time, sir. 10 MR. CARR: Do you have Plaintiffs' E x h ibit 1627 11 there? It's the big -- it's a thick book the EPA -- it won't 12 be in those, Tammy, 13 Q. Now, Doctor, if that is numb e r e d the same -- 14 MR. CARR: Your Honor, I have a page from that 15 paper, 8-62 to pass to the jury at this time. 16 THE COURT: Fine. 17 Q. Doctor, if you would turn to 8-62? 18 A. Yes, I will. Sir, did you say 8-52? 19 Q. 62. 20 A. 62. 21 Q. Are you there, Doctor? Doctor, are you on that 22 page, sir? 23 A. Yes, I am on that page, sir. 24 Q. Doctor, the first full paragraph on that page 1 refers to the Nitro, West Virginia study, does it not, sir, 2 the accident in Nitro West Virginia? Do you see that, sir, 3 the first full paragraph, first sentence, you see that, sir? 4 A* I have it on 8-61, sir. 5 Q. No, 8-62, Dr. Suskind. 6 A. This is the one I have, sir. 7 Q. Well, it's a different -- oh, you've got the 8 earlier draft, but the language is exactly the same, yes. 9 Doctor, the Page 8-62 the exhibit that you have is the first 10 draft of the EPA report -- there's another exhibit, I don't 11 recall the number offhand, that is the final draft, but the 12 language in question is exactly the same and directing your 13 attention to the first par a g r a p h on the page that I gave you, 14 sir, from the EPA book, it does refer to the 1949 exp l o s i o n 15 at Nitro, West Virginia, doesn't it, sir? Do yo u see that, 16 sir, the first full paragraph? 17 A. Yes, I do, sir. 18 Q. All right. Now, Doctor, it d e s c r i b e s the symptoms 19 included being nausea headaches, fatigue, muscular aches and 20 pains and chloracne, Zack Suskind, 1980. Do y o u see that, 21 sir? 22 A. Yes, it is. 23 Q. And that's the study from w h i c h this quote in 24 Plaintiffs' Exhibit 1730 from which it was taken, correct, XUO 1 sir, the Zack Suskind study in 1980? 2 A. It's not an exact quote, sir, no* 3 Q. Doctor -- 4 A. It's taken from the same -- 5 Q* Doctor, excuse me, y o u're c o n f u s i n g -- 6 A. I'm sorry* 7 Q. The Zack Suskind m o r t a l i t y study in 1980, ar e you 8 with me on that, Doctor? 9 A. Yes, I am. 10 Q. The statement that's c o n t a i n e d on Plaintiffs' 11 Exhibit 1730 was taken from that Zack Suskind 1980 report, 12 was it not, sir, exact quote? 13 A. 1751 is that? No, that's something else. 14 Q. Well, it's also on 1751. 15 A* Well, I can't see that so I b e t t e r look at it. 16 Q. Doctor, it reads in a few case w o r k e r s con t i n u e d to 17 complain of aches and pains of the lower extremities and 18 nervousness, excessive fatigue, and dyspnea? 19 A. Yes, I have that, sir. 20 Q. All right. That is the quote t hat's t a k e n from the 21 study, is it not, sir, that -- taken from the Zack Suskind 22 1980 study report? 23 A. That's taken from the 1980 report, sir, yes. 24 MR. CARR: And, Your Honor, for the record the page JLUO 1 that has been passed to the jury is not from Plaintiffs' 2 1627, which was the first draft, but it's page 8-62 from 3 Plaintiffs' Exhibit 1665, which was the final report. 4 Q. Now, Doctor, this statement in t his book p u b l i s h e d 5 by the EPA says, does it not, chronic symptoms l a s ting up to 6 two years were severe aches and pains, fatigue, peripheral 7 neuropathy, and some residual chloracne. You see that, sir? 8 A- Yes, sir. 9 Q. And, Doctor, the reports we have gone t h r o u g h -- 10 oh, strike that. This w o u l d suggest, d o e s it not, sir, that 11 these symptoms that we have gone t h r ough l asted o n l y two 12 years? 13 A. That's what it w o u l d suggest here, sir. T h a t ' s not 14 a quote from my paper, however. 15 Q. I understand that, Doctor, but the p e o p l e read your 16 various papers at this time in 1984, they certainly had 17 available to them all your v a r ious studies, did t h e y not, 18 sir? 19 A. Correct, s i r . 20 Q. And the co n c l u s i o n that the EPA got f r o m your study 21 at least the 1980 study that's cited here, is that these 22 symptoms lasted up to but not b eyond two years, isn't that 23 correct, sir? 24 A. That's what this reads, sir. J.U/ 1 Q. T h at's an i n t e r p r e t a t io n that they got p r e s u m a b l y 2 from your various reports, correct, sir? 3 A. I can't be r e s p onsible for what they did, sir* 4 Q. Oh, but. Doctor, I insist that you can be 5 responsible. 6 A. No, they m a y have misin t e r p r e te d -- 7 Q. Doctor, you are responsible for those reports that 8 you put out, are you not, sir? 9 A. Sure, and I stand behind them. 10 Q. Doctor, you e xpect p e o p l e to read these reports, 11 don't you, sir? 12 A. I assume that they do and read it accurately. 13 Q. Doctor, y o u expect them to beli e v e that as you -- 14 as shown in Plaintiffs' Exhibit 1751, that in a few cases 15 they continued to complain of it in a subsequent examination 16 and in 1727 that in a v e r y few cases t h e y con t i n u e d to 17 complain of mild pains, nervousness, and fatigue, and in 1728 18 you expect them to b e l i e v e that only a few cases did workers 19 continue to complain of pains, nervousness, and fatigue. You 20 do expect them to b e l i e v e those things, don't you, sir? 21 MR. HEINEMAN: Objection, your Honor. 22 A. I don't have this before me, sir, so-- 23 MR. HEINEMAN: Excuse me, Doctor. 24 A. Where are the exhibits? .LUU 1 THE COURT: Doctor/ please. 2 MR. HEINEMAN: Doctor, please, I'm making an 3 objection. 4 THE COURT: W h e n someone's trying to make an 5 objection, please stop. 6 MR. H E INEMAN: Okay. Your Honor -7 THE COURT: Gentlemen, why don't you approach the 8 bench for a minute please. 9 (At this time a c o nference was had at the b e n c h out 10 of the hearing of the jury.) 11 MR. HEINEMAN: W o u l d you -- I wonder if you wou l d 12 read back to me what that last question by Mr. Carr was, 13 because I thought he was referring to 1627 and reading in 14 words that weren't there. He said 1627 says a few. 15 MR. CARR: I said 1727, counsel, you c a n ' t hear, 16 1727 not 1627. 17 THE COURT: Okay. 18 MR. HEINEMAN: I understood you to ,say 1627. 19 MR. CARR: If I did, I misspoke. 20 THE COURT: W h y don't you restate 1727. 21 (The fol l o w i n g p r o c eedings were had in open Court.) 22 Q. Doctor, the reports of yours that I'm referring to 23 are the Mons a n t o E x h ibit 62 the Zack Suskind 1980 report, the 24 Plaintiffs' E x h ibi t 1727, w h i c h is your 1978 Lyon, France iuy 1 report to the cancer agency, and P l a n t i f f 's Exhibit 1728, 2 w h i c h is your 1970 report to the NIEH conference at R e s e a r c h 3 Triangle Park in North Carolina. You do recognize those 4 quotes that I cited, do you not, sir? 5 A. I do. 6 Q. Yes. And, Doctor, you expected people to -- would 7 it be reasonable a person reading those reports to come to 8 the conclusion, sir, that these chronic symptoms would go 9 away after a couple years? 10 A. No, sir. 11 Q. It w o u l d n ' t be reasonable for somebody to come to 12 that conclusion? 13 A. Not if they read the paper, sir. 14 Q. Doctor, your paper, the strongest language you used 15 was that in a few cases in the 1953 exam they continued to 16 complain. The other language that you used was to the effect 17 that in a very few cases they had, in very few cases workers 18 continued to complain of mild pains, nervousness, and 19 fatigue? 20 A. Correct. 21 Q. D i d n 't you intend to convey, sir, that these 22 problems were mild and short-lived? 23 A. I c a n 't answer that question as it's asked for, 24 sir. Short-lived is the problem. 1 Q. D o c t o r r you understand what I mean what I use the 2 word short-lived, don't you, sir? 3 A. No, I don't, sir. 4 Q. D o e s n 't last a long time, lasts a couple of years? 5 A. Well, in this instance it may have, some of them 6 may have lasted longer than two years. 7 Q. Doctor, that isn't what I'm asking you, sir. I'm 8 asking did you not mean to convey -- do you have 1751 in 9 front of you, sir, which has the three quotes in question? 10 A. I do, sir, yes. 11 Q. Did you not m e a n to convey in these three 12 publications that these problems that these workers had were 13 after a few years mild and short-lived? 14 A. Again I have problems with the short-lived. If 15 four years -- . 16 Q. By short-lived I mean lasting a c ouple of years? 17 A. If four years is short-lived, yes, sir, but this 18 says two years. 19 Q. I understand t h a t , D o c t o r . It w o u l d n 1t make a lot 20 of difference whether or not they put in there chronic 21 symptoms lasting up to four years or two years, w o u l d it, 22 sir, as far as this-- 23 A. I think it would. 24 Q. As far as the sense of what you meant? ill 1 A. It would to me, and it might be to this Court as 2 well 3 Q. Well, Doctor, it does m a k e a d i fference to this 4 Court, because you knew in *53 that it w a s n 't a few cas e s 5 that had these complaints, you knew it was 27 out of 29 as 6 we've established, isn't that correct, sir? 7 A. No, sir. 8 Q. It's not correct, sir, that w e e s t a b l i s h e d that? 9 A. No, sir, not to my satisfaction, sir. 10 Q. Doctor, you testified time and a g a i n that it was 11 your interpretation in this courtroom, it was your 12 interpretation that 27 out of 29 p e o p l e c o n t i n u e d to have I 13 these complaints. Don't you recall that, sir? 14 A. It wasn't my interpretation, it was yours, sir. 15 Q. Doctor, are you now saying it was not your 16 interpretation? 17 A. No. 18 Q. You are saying that it is not your i n terpretation? 19 A. It is indeed. 20 Q. Doctor, you don't recall the number of times that I 21 re-established that it was your interpretation, that I 22 established it over and over again, and you a g reed that it 23 was indeed your interpretation? 24 HR. HEINEMAN: Object. He just said it is indeed, XXX 1 didn't he? Did I misunderstand? 2 MR. CARR: No, he said it's my interpretation and 3 not his interpretation. 4 Q. I s n 't that what y ou're saying, Doctor? 5 A. I said it was not m y interpretation. 6 Q. But don't you recall, sir, that we've e s t a b l i s h e d a 7 number of times that it was your interpretation according to 8 your interpretation of your records? Don't you recall we 9 established that a number of times? 10 A. I can't recall that completely, sir, no, I don't. 11 Q. Doctor, on March 7th, 1986, P a g e 52, counsel. 12 Didn't I ask you these questions, Doctor? Question: There 13 were 27 out of 29 had these symptoms, didn't they, sir, and 14 your answer was, according to your records, sir, yes. Then 15 my question was, Doctor, acc o r d i n g to w h o s e i n t e r p r e t a t io n of 16 these records? These were symptoms a c c o r d i n g to who s e 17 interpretation? And your answer was, sir, according to my 18 record and my interpretation. Didn't you say that, sir, at 19 that time? 20 A. I may have said it at that time, sir, yes. However 21 22 Q. Doctor, I didn't ask you about a n y t h i n g calling for 23 a however. I established that time and time again. Don't you 24 recall that, sir? On Page 77 didn't you say that these were XXX 1 symptoms that these men had? 2 A. I don't have the transcript, sir, so I can't ve r i f y 3 it, sir. 4 Q. Doctor, do you have no m e m o r y at all that we 5 established -- and the Court even instructed you a couple of 6 times that you had testified that it was your 7 interpretation. You recall that, sir? 8 A. I recall that the Court instructed me to assume 9 that it was. 10 Q. And the Court i n structed you to a ssume that, sir, 11 based upon your te s t i m o n y that it Was your inte r p r e t a t io n of 12 your records. Don't you recall that, sir? 13 A. Based on that assumption. 14 Q. No, b a se d upon the fact that it was your 15 interpretation of your records. 16 A. It was my records, but the i n t e r p r e t a t i o n has a 17 variety of meanings, sir. 18 Q. Doctor, just so there won't be a n y p r o b l e m about 19 it, you said there 27 out of 29 and t hen a c c o r d i n g to my 20 records and ray inte r p r e t a t io n 27 out of 19 had these 21 symptoms. 22 A. I believe I was asked to a s s u m e that that was the 23 case. 24 Q. No, Doctor, look and see if you w e r e asked to .J XJ.4 1 assume that here, sir. You see that anywhere where you were 2 asked to assume that, sir? You see that anywhere# Doctor? 3 A. I do not see it here# sir# no. 4 Q. That is your testimony, isn't it, Doctor? 5 A. That was my testimony, sir, yes. 6 Q. Now, Doctor, these 27 out of 29 with these 7 particular symptoms you relayed to the world that only a very 8 few had these symptoms, didn't you, sir? 9 A. Yes, I did, sir. 10 Q. And the EPA has interpreted your reports to mean 11 that these chronic symptoms only lasted a relatively few 12 years, isn't that correct, sir? 13 A. Correct, sir. 14 Q. Now, Doctor, isn't that a reasonable interpretation 15 to reach based upon what you reported the case to be in these 16 three e x hibits? 17 A. Yes, sir. 18 Q. Yes. Now, Doctor, and the -- even at the time you 19 were making your various reports you, of course, as late as 20 in 7 -- in '80 and '73 and '78 you had just the *49, the 21 1950, and the 1953 examinations, didn't you, sir, to 22 interpret? 23 A. Yes. 24 Q. Yes. And, Doctor, by 1973 and *78 you in addition X XD 1 had seen the reports of Dr. Nessman relative to some of these 2 workers, had you not, sir? 3 A. I had seen his -- I can't remember, sir, whether I 4 saw all of them, but what I -- what I can recall is that 5 there was and this was reinforced by the memorandum of Mr. 6 Wager. 7 Q. Excuse me, Doctor, my question is you had seen the 8 Nessman reports? 9 A. Report, sir, not reports. 10 Q. Doctor, doesn't this exhibit here 1759 indicate 11 that you discussed with Mr. Stone the findings concerning the 12 p s y c h o n e u r o s i s in these employees, in most of these 13 employees? 14 A. T h at's what the m e m o r a n d u m reads, sir. 15 Q. Doct o r -- 16 (Plaintiffs' Exhibit 1779 marked for 17 identification.) 18 Q. Doctor, I'll hand you now what's been marked 19 Plaintiffs' Exhibit 1779, and I'll represent to you that 20 these are the the reports of Dr. Nessman that w ere given to 21 us a couple weeks ago at our request by Monsanto for these 22 r e p o r t s . 23 MR. HEINEMAN: Objection. M a y counsel app r o a c h the 24 bench? no 1 THE COURT: Sure. 2 (At this time a conference was had at the b e n c h out 3 of the hearing of the jury.) 4 MR. HEINEMAN: I object to that statement about 5 these being given to him a couple weeks ago. These documents 6 are among the Nitro documents that were provided to Carnow 7 and on which there was constructive production made over a 8 year ago. 9 MR. CARR: Your H o n o r , to my knowledge there*s 10 absolutely no truth in that statement that Mr. Heineman said. 11 I 'm not suggesting that he's m i s r e p resenting on purpose, he 12 simply doesn't know the facts of the case. We have inquired 13 and we did not find -- Court asked for these N e s sman reports 14 would be forthcoming. It isn't material to the point 15 anyway. The records that I have given to the witness are 16 Nessman reports that were given to us a few weeks ago. I 17 r epresented to the witness that these are reports M o ns a n t o 18 has given to us a few weeks ago. 19 MR. HEINEMAN: But the problem is -- 20 MR. CARR: Whether they had been given earlier or 21 not is -- and Mr. Heineman can represent what they were, and 22 I tell the Court to ray knowledge they were not, but it's 23 really a waste of time for the Court to try and decide 24 whether they were or were not. JL JL / 1 MR. HEINEMAN: My understanding is they were. They 2 were in that microfilm stuff. 3 THE COURT: I don't think either of you needs to 4 resolve that now. 5 MR. HEINEMAN: They were on the microfilm. 6 THE COURT: Let's go ahead. There's no question 7 what he said is correct as far as this whether you had -- 8 whether they were constructively produced before or not, they 9 were requested and produced a couple weeks ago. You're not 10 disputing that fact? 11 MR. HEINEMAN: No, the problem is the implication 12 in front of the jury. 13 THE COURT: Well, I don't think so. 14 MR. HEINEMAN: That they were withheld in some 15 way,and I don't think that's right. 16 THE COURT: I don't think that implication was 17 made. What was said was that he asked for them and yo u gave 18 them to him. That's -- I think there's a neutral implication 19 there in what was said. Since it is a neutral implication, I 20 think the other argument isn't really worth going into in 21 front of the jury right now anyway, so I'll o v e r r u l e your 22 objection. 23 MR. HEINEMAN: Okay. For the record I ask that the 24 Court that the remark of counsel be stricken, and the jury be -L-LO 1 instructed to disr e g a r d it. 2 THE COURT: Overruled. 3 (The following proceedings were had in open Court.) 4 MR. CARR: Your Honor, I'd like to offer 1779, I 5 think the number is, into evidence at this time. 6 THE COURT: Any objections? 7 MR. HEINEMAN: One moment, Your Honor. 6 THE COURT: Pardon? 9 MR. HEINEMAN: One moment please. 10 THE.COURT: Sure. 11 MR. HEINEMAN: Ma y c o u n s e l a p p r o a c h the bench. Your 12 Honor? 13 THE COURT: Sure. 14 (At this time a c o n f e r e n c e was had at the b e n c h out 15 of the hearing of the jury.) 16 MR. HEINEMAN: First of all, Your Honor, in 17 connection with what we were saying before, Mr. Nassif 18 informs me that the -- that the receipt w h i c h was given to 19 Mr. Carr along with these r e p orts recites something about 20 these are the ones that w e r e not prod u c e d before, so I 21 withdraw my objection, b e c a u s e -- but w i t h respect to the -- 22 with respect to the doc u m e n t s of this, I w o u l d object on the 23 basis that this document, a, these aren't all of the reports, 24 and I thought they were r e p r e s e n t e d to be all of the Nestmann ny 1 reports. Secondly, I would object on the basis there's no 2 identification, no authentication, and they're hearsay, so 3 there's no foundation been laid for them. 4 MR. CARR: It's already been by exhibits in this 5 case shown that Dr. Nestmann examined these people for 6 Monsanto. The authenticity is recorded in the fact that they 7 have delivered them to us from their records, and, well, I 8 don't think -- 9 MR. HEINEMAN: Well, the record also says, Mr. 10 Carr, that he examined people on behalf of the Workers' Comp 11 Commission, and that is s t ated in the docu m e n t w h i c h Mr. Carr 12 has, and so I don't know w h e t h e r this p a r t i c u l a r e xamination 13 was a result of anyt h i n g done by -- for Mons a n t o or whether 14 it was something done for the Workers' C o m p Commission. 15 MR. CARR: T h e r e is no docu m e n t at all that states 16 t h a t . 17 MR. HEINEMAN: T h e r e c e r t a i n l y is. 18 MR. CARR: T h e r e is not, period. 19 MR. HEINEMAN: I b e l i e v e I can show it to you. 20 THE COURT: That '56 m e m o stated that he examined on 21 behalf of Monsanto. W h a t other document are you talking 22 about? 23 MR. HEINEMAN: I b e l i e v e that there's a document -- 24 I'll ask -- I'll be glad to go get it. JLZU 1 THE COURT: If there is, go get it you can. 2 MR. HEINEMAN: Well, Mr. Nassif informs me that the 3 memo is in our office. I have seen it, I can tell the Court 4 that it's there, but I don't have it in the Court with me. 5 MR. CARR: If he's seen it, I haven't seen it. 6 THE COURT: O b jection is overruled. It's admitted 7 over objection. 8 (The following proceedings were had in open Court.) 9 MR. CARR: Your Honor, we ask leave to pass the 10 exhibit to the jury, 1779. 11 THE COURT: Fine. 12 Q. Doctor, this E x h i b i t 1779 consists of a number of 13 reports by Dr. Nestmann, does it not? Doctor, you can see 14 that just at a glance, c a n ' t you, sir? I'm not asking you to 15 read them all at this time, just to confirm that this exhibit 16 consists of a number of N e s t m a n n reports? 17 A. Yes, I believe they do, on several people, sir. 18 Q. And, Doctor, the first one is -- Dr. Nestmann, by 19 the way, we previously established is a doctor of internal 20 medicine, correct, sir? 21 A. Yes, I b e l i e v e we have stated that, sir. 22 Q. And the first one there is a date over to the left 23 hand side of appa r e n t l y J a n u a r y 25th, 1955, correct, sir? 24 A. Yes, sir. JL^J. 1 Q, And it deals with Chester Jeffers, who w a s a pipe 2 fitter in the building, correct, sir? You see that, sir? 3 A. Accordin g to this record, sir, yes, 4 Q. According to what Mr. J e f fers told Dr. N e s t mann, 5 who examined the man in behalf of Monsanto, he was all right 6 until this explosion, wasn't he, sir? 7 MR. HEINEMAN: Object to the question, your Honor, 8 on the basis previously stated to the Court. 9 THE COURT: Objection is overruled. 10 Q. You see that the very first sente n c e in the first 11 full-bodied paragraph, sir? 12 A. I do, sir. 13 Q. And, Doctor, he describes a n umber of chief 14 complaints that he had at the very top of the page, doesn't 15 he, sir? 16 A. He does. 17 Q. And these are complaints that he's h aving as of 19 18 -- as of the 1955 examination, isn't that correct, sir? 19 A. 1 assume that's so, sir. 20 Q. And that's some six years after the explosion, sir, 21 nearly six years, not quite? 22 A. Yes. 23 Q. And, Doctor, he states, does he not, sir, in the 24 third full paragraph there that -- I'm sorry, yeah, the third JL<^ 1 paragraph that his eye trouble started four years ago? That 2 would be about 1951? 3 A. That's what the record reads, sir. 4 Q. And also states that his nervousness is as bad as 5 when it started, that he thought it was due to his liver? 6 A. That's what this record states, sir* 7 \ 'CQ.' The record also states, does it not, sir, that 8 nervousness is present all the time? 9 A. That's what the p a t ient claimed, sir, yes. 10 Q. And the p a t ient also said, did he not, sir, that 11 he's been sleeping p o o r l y the last month? 12 A. That's what he claimed, sir. 13 Q- Now, Doctor, w h e n you use the word claim, are you 14 implying by that or meaning to imply by that that you think 15 the man was lying, that this c l a i m was not true? 16 A. No, sir, not at all, sir. 17 Q. Doctor, then the ques t i o n as I put it to you this 18 is what he stated, you would accept that, wouldn't you, sir? 19 A. Only as a complaint, sir, yes. 20 Q. Doctor, you d i dn't say as a complaint, you said as 21 a claim, didn't you, sir? 22 A. It's the same -- 23 Q. My question to you, sir, is he stated to this 24 doctor that he had this p a r t i c u l a r problem, did he not, sir? 3 1 A. Yes, sir* 2 Q. And, Doctor, he also stated to the doctor that he 3 had been sleeping poorly the last month, right, sir? 4 A. Yes, that's what he complained of, sir. 5 Q. He also d e s c r i b e d an ankle problem that he had, 6 didn't he, sir? 7 A. He did. 8 Q. Popping and cracking, isn't that correct, sir? 9 A. 1 assume he's referring to his ankle, sir, yes. 10 Q. You have heard of the phrase ratchet joints, 11 haven't you, Dr. Suskind? 12 A. I have on occasion. 13 Q. And you have heard, w h e t h e r you accept it as fact 14 or not, that others have said that d i o x i n expo s u r e can cause 15 rachet joints? 16 A. Absol u t e l y not, sir. 17 Q. Haven't you heard that, Doctor? 18 A. No, sir, not from a u t h o r i t a t i ve sources. 19 Q. M y q u e s t i o n is haven't you heard that, sir? 20 A. No, sir, I have not. 21 Q. Not from any source? 22 A. Not from any source. 23 Q- All right. And, Doctor, he also states that legs 24 ache more or less intermittently, worse at different times? 1/4 1 A, That is what it reads, sir, yes. 2 Q. He a lso describes that he has headaches -- I'm 3 sorry, earaches, he has stomach discomfort, he got a headache i 4 and weak stomach that started two weeks ago? 5 A. Can we take that one at a time, sir? He's had 6 headaches? 7 Q. First is the ear. 8 A. Earaches. 9 Q. Is the e a r a c h e s a n d then he's got disco m f o r t in his 10 abdomen, his lower a b d omen he has problems. On the next page 11 he describes h e a d a c h e and weak stomach that started two weeks 12 ago? 13 A. That was among his complaints, sir, yes. 14 Q. His headache is present all day long, is that 15 correct, sir? 16 A. His h e a d a c h e p r e sent all da y long, yes, that's what 17 he claimed. 18 Q. He states that as far as he was concerned he had 19 always had good health as far as the past history is 20 concerned? 21 A. That's how the record reads, sir. 22 Q. He also desc r i b e d his libido as not being affected 23 now, but that he had a p r o b l e m for some three years, is that 24 c o r r e c t , sir? 1 A. Yes, that is correct, sir, according to this 2 record. 3 Q. Doctor, his jerks on a scale of one to four or zero 4 to four would all be in the reflexes examination four plus, 5 would they not, sir? 6 A. That's how it reads, sir. 7 Q. That would be hyperactive, Doctor? 8 A. It might according to the judgment of the doctor. 9 Q. So according to judgment of this doctor, this man 10 had hyperactive reflexes in all of his extremities? 11 A. I don't know, sir. 12 Q. Doctor, doesn't he describe them as four pluses? 13 A. Yes. 14 Q. And haven't you a greed that four plus mea n s 15 hyperactive? 16 A. It could be, sir. 17 Q. Doctor, is there anything else that it could be? 18 A. It could be normal for this person. 19 Q. Doctor, I'm not asking you about that, did I? 20 Y o u're back on that again. I'm asking you about the activity 21 of the reflexes. 22 MR. HEINEMAN: Objection, Your Honor, he asked is 23 there anything else it could be. The answer is responsive. 24 THE COURT: Overruled. JLZO 1 Q. Doctor, isn't it correct that the four p l u s 2 describes hyperactive reflexes? 3 A. In some individuals, yes, but not all the time, 4 sir. 5 Q. Doctor, doesn't the desc r i p t i o n four p l u s m e a n 6 hyperactive reflexes? 7 A. It could. 8 MR. HEINEMAN: Object, asked and answered. 9 Q. What else does it mean, sir, if it d o e s n ' t m ean 10 hyperactive? 11 A. It could be, sir, but I'm not sure. 12 Q. Doctor, my question is what else could it be other 13 t h a n -- 14 A. It could be normal for this person. 15 Q. Excuse me, Doctor, I didn't ask y o u that, and you 16 d i dn't let me finish the question. W i t h regard to the 17 activity of the reflex, sir, not whether it's abnormal or 18 whether it's normal. It may be perfectly normal, Doctor, I'm 19 not asking you whether or not it's a normal reflex. Do you 20 u n derstand that, Doctor? 21 A. I do indeed, sir. 22 Q. You understood it when you gave m e the answer, 23 didn't you, sir? You understood that I'm asking you about 24 the grade of the activity. Now, Doctor -- J.4 / 1 A* The grade of the activity is -- 2 Q. What does four plus mean with respect to the 3 activity of the reflex other than a hyperactive reflex? 4 A. I think I said it could m e a n normal. 5 Q. Doctor, you again are interpreting. I 'm not asking 6 you for an interpretation whether it's normal or abnormal. 7 Do you understand me, Doctor? 8 A. I do i n d e e d . 9 Q. With respect to the grade of activity, sir, what 10 could four plus mean other than hyperactive? 11 A. It means four plus. 12 Q. Doctor, that's saying four plus m e a n s four plus? 13 A. It m e a n s -- 14 Q. Doctor, what I'm asking you -- 15 A. It means a vigorous reaction, that's w h a t it means. 16 Q. Doctor, what I'm a sking you is w h a t could four plus 17 m e a n other than with reference to grade of a c t i v i t y other 18 than hyperactive reflex? 19 A. Are you asking me for a generic inter p r e t a t io n ? 20 Q. Doctor, you understand what I'm asking you. Would 21 you answer my question please? 22 A. Sir, I have to apologize, but I'm not sure I do. 23 Q. Doctor, I'm sure you do, so p l ease a nswer m y 24 question. What could four plus mean, as you u n d e r s t a n d it xxo 1 based upon your experience, sir, of grading of activity of 2 reflexes, what could four plus mean other than hyperactive 3 reflex? 4 A, It could mean a vigorous -- 5 MR- HEINEMAN: Excuse me. Doctor. Objection. May 6 counsel approach the bench? 7 THE COURT: Yes, you may 8 (At this time a co n f e r e n c e was had at the b e n c h out 9 of the hearing of the jury.) 10 MR. HEINEMAN: Object to the statement of counsel 11 about I'm sure you do know what I m ean and ask that it be 12 stricken and ask that the jury be instructed to d i sregard 13 it. In addition to that, this q u e s t i o n has b e e n asked and 14 answered. He asked what else could it mean, and the m a n said 15 it could be a vigorous reaction. It's a l r e a d y b e e n answered. 16 THE COURT: First of all, we h a v e gone t h r o u g h this 17 at least once today, we have gone t h r ough it b e f o r e today. 18 V7e have gone through this same thing as far as his 19 interjecting. He knows v e r y well, and he knew v e r y well that 20 that answer was not called for, and I p r e v i o u s l y said it was 21 not responsive. I think under that context Mr. Carr's 22 question was correct. He started to give the answer that you 23 talked about in the m i ddle of a q u e s t i o n that was b e ing 24 asked. If he would wait and answer the q u e s t i o n after it is 1 asked and respond that way, it might very well be responsive 2 to the question, but he never gave it again after the 3 question was asked, so I don't know if it was responsive or 4 not. V7hen he did say vigo r o u s reaction, it was in the middle 5 of a question being asked, which he also persists in doing 6 despite requests not to do so. So I don't -- you and I 7 cannot tell whether it's responsive to that question or not 8 at this point in time. Your objections are both overruled. 9 MR. HEINEMAN: Your Honor, he's frequently 10 answering in the m i d d l e of Mr. Carr's questions, because Mr. 11 Carr continues to interrupt his answers, and to that end I 12 would disagree with the Court's interpretation of what 13 happened, but in an y event he has said a vig o r o u s reaction. 14 That's precisely responsive. 15 THE COURT: The only way to keep this witness from 16 continually giving nonresponsive answers in many 17 circumstances is to interrupt his answer. Mr. Carr is not 18 abusing that. Why don't you ask the question again. 19 (The following proceedings were had in open Court.) 20 Q. Doctor, the word hyper m eans more or greater than, 21 does it not, sir? 22 A. Yes. 23 Q. Like hypo m e a n s less than? 24 A. Yes, sir. J.OU 1 Q. Hyper m e a n s above or more than, correct, sir? 2 A. Right, right. 3 Q. H y p e r a c t i v e m e a n s m o r e than ordinary activity, 4 doesn't it, sir? 5 A. Yes. 6 Q. And what c o u l d four plus m e a n other than m o r e than 7 ordinary activity? 0 A. Depending upon the interpretation of what a four 9 plus reaction means -- 10 Q. Doctor, I'm not asking you to interpret the test. 11 I'm asking you w h e n the n e u r ologist conducts the test and 12 uses the number four plus, I'm a sking you to tell us a 13 neur o l o g i s t or an internist or a dermatologist, w h o ever uses 14 that with regard to g r a ding the acti v i t y of a reflex, what 15 could four plus mean other than a reflex that is more active 16 than ordinary, that is h y p eractive? 17 A. Well, if there is an ordinary reflex, and that IS would be a two plus or a three plus, this would be more than, 19 this would be m ore than a two or a three plus, this would be 20 a greater than. 21 Q. My quest i o n is what could it be other than that. 22 Doctor? 23 A. Well, you c o u l d n ' t have anything other than that. 24 Q. Thank you, Doctor. Now, in addition thereto, the ___ ____ JLOX 1 doctor found that his abdominal reflexes were one plus, did 2 he not, sir? 3 A. Right* 4 Q. And one plus would be hypoactive, wouldn't it, sir? 5 A. No, not necessarily. 6 Q. W h a t could it be other than my hypoactive, sir, 7 less than ordinary? 8 A. As I indicated in this other instance, Mr. Carr, I 9 really believe, honestly believe that a one plus reaction 10 c ould be a n o rmal reaction and even though it is -- now, what 11 I would say it is less than, it is less than a two plus or a 12 three plus and what a neurologist does is and Dr. Nestmann 13 did that is to interpret the significance of these reactions. 14 Q. Doctor, I'm not a sking you to interpret the 15 significance of these reactions, am I? 16 A. I'm not, I'm not interpret willing. 17 Q. Do you u n d e r s t a n d t h a t -- 18 A. Yes, sir. 19 Q. Do you u n d e r s t a n d that I was asking you whether or 20 not a neuro l o g i s t does interpret these reactions? You know 21 that I know that, you k n o w that the jury knows that, don't 22 you, sir? 23 A. No, I don't. 24 Q. You don't know that? J. 1 A. You haven't asked me, sir. 2 Q. Doctor, you have explained it and exp l a i n e d it, 3 other neurologists have been here and explained it. You know 4 that we know that, don't you, sir? 5 A. I would -- 6 Q. Doctor, referring to the one plus, that m e a n s a 7 less active reflex, does it not, sir? 8 MR. HEINEMANs Objection, he interrupted the last 9 answer. 10 A. It means less active than two plus. 11 THE COURT: Pardon? 12 MR. HEINEMAN: Never mind. 13 Q. If a two plus is a normal reflex as you s u g gested 14 it may be, it is a reflex then that is less a ctive than a 15 normal reflex, i s n 1t it, sir? 16 A. I would interpret it to be a less a c t i v e than -- 17 Q. Could you answer that question please, sir, not how 18 you interpret it. 19 A. Less active than an average. 20 Q. Thank you, Doctor. 21 A. Less active than an average. 22 Q. That's fine, Doctor. In addition t h e r e t o the man 23 found, his impression was that he had a moderately severe 24 psychoneurosis, did he not, sir? j j 1 A. That is the impression, sir, not the diagnosis. 2 Q. Now, Doctor, what does the d octor m e a n w h e n he says 3 impression? 4 A. It means that on the basis of this single 5 examination he has made, he has an impression -- 6 Q. No, Doctor, y ou're using the w o r d i m pression to say 7 impression. Now, I'm asking you to tell us what impression 8 means, and you can't define a word by using the worjs. Please 9 define what it means, sir. 10 MR. HEINEMAN: Objection, he interrupted the 11 a n s w e r . 12 THE COURT: Objection is overruled. 13 A. Let me try again, sir. 14 Q. Please do. 15 A. An impression of the p h y s i c i a n f o l l o w i n g a n initial 16 examination is his view of w h a t the i n dividual m a y have. 17 Q. Thank you, Doctor. 18 A. May have. 19 Q. Yes, Doctor. Nowthe next p e r s o n listed here on 20 this we have a report on is whatappears to be a Mr. 21 Cunningham, I think, I can't be sure of that, Cecil 22 Cunningham, I think that's what it is, correct, sir? 23 A. I think it is, too, sir, yes. 24 Q. And his reports, he has his chief co m p l a i n t s he has 1J4 1 nervousness, and when h e 's most nervous his som e t h i n g arm, ,2 apparently his arms and legs and chest will hurt, is that 3 correct, sir? 4 A- I believe that m a y be so* W h e n he is most nervous? 5 Q. Yes. 6 A. Yes* 7 Q. And he also des c r i b e d to the d octor that he's 8 messed up sexually, that he has had difficulty in getting 9 erections ever since the accident and that for one period of 10 time he was unable to get an erection for a period of two 11 months, correct, sir? 12 A. That is what the record reads, sir. 13 Q. He has trouble with his eyes dilating, things gets 14 blurred and grayish, correct, sir? 15 A. T h a t 's what the record reads, sir. 16 Q. He also reported to the doctor that he started 17 having the trouble with the n e r v o u s n e s s in F e b r u a r y of 1950, 18 i s n 't that correct, sir? 19 A. That's what the record reads, sir. 20 Q. He started having b e t w e e n F e b r u a r y and that May he 21 started having legs and chest hurting, w h e n e v e r he gets the 22 bad nervous spell, he has trouble with his legs and chest, 23 correct, sir? 24 A. That's what the record reads, sir. JLJD 1 Q. While he's having fewer nervous spells recently and 2 less leg and chest trouble, he says he stays nervous all the 3 time, has difficulty going to sleep and rarely sleeps more 4 than four hours at a time, correct,sir? 5 A. What what the record reads, sir. 6 Q. He also d e s c r i b e s that he w i l l simply go to pieces 7 with his nerves if he starts to exercise, he goes to p i e c e s ? 8 A. That's what the record reads. 9 Q. Doctor, that is indeed a v e r y series situation, 10 isn't it, sir, if a g r o w n m a n starts to exercise, just to mow 11 the yard and he goes to pieces with his nerves? 12 A. If it is accurate, sir. 13 Q. Well, it's either a c c u r a t e or he's lying, 14 correct,sir? 15 A. He m a y b e l ieve that to be so, sir. We went through 16 t h a t . 17 Q. He m a y b e l i e v e that he's going to pieces? 18 A. He may have t h a t -- 19 Q. Doctor, n o w y o u ' r e saying he m a y b e l ieve that he 20 has a nervous p r o b l e m and his belief that he has a nervous 21 problem is caused by nerves. Y ou're s aying n e r v o u s n e s s is 22 caused by nervousness. That's a redundant statement, 23 Doctor. 24 A. That is not what I said, sir. X JO 1 Q. Doctor, if this ma n indeed is telling the truth, 2 what he describes as going to pieces occurs, doesn't it, 3 sir? It's not something that he imagines or makes up, isn't 4 that correct, sir? 5 A. No, sir. 6 Q. T hat isn't correct? 7 A. No, he could be making it up, sir. 8 Q. Then he w o u l d be lying, wouldn't he, sir? 9 A. He might be. 10 Q. Now, Doctor, I haveasked you to assume that the 11 man is telling the truth, but you've testified a number of 12 times that all of these men in your judgment under oath here, 13 in the federal court you testified in your judgment all of 14 these men were telling the truth, that they w e r e n ' t lying. 15 Don't you recall that, sir? 16 A. T his is a n o ther instance, sir. This is a 17 compensation examination. 18 Q. Excuse me, sir, d o n 't y o u -- 19 A. This is a compensation examination. 20 Q. Excuse me, sir, when you saw him you examined him 21 for the company, when Dr. Nestmann saw him, he examined him 22 for the company, when you went to the Workers' Compens a t i o n 23 C o m m i s s i o n you testified in behalf of the company. Doctor, 24 the times that you saw the man you were called in by these 3 / 1 me n you were called in by the company to do this, weren't 2 you, sir? 3 MR. HEINEMAN: Objection, Your Honor. May counsel 4 approach the bench? 5 THE COURT: Yes, you may. 6 (At this time a co n f e r e n c e was had at the b e n c h out 7 of the hearing of the jury.) 8 MR. HEINEMAN: Your Honor, I am objecting to all 9 this a, as being irrelevant, and, b, as being misleading on 10 the part of counsel. 11 THE COURT: K e e p your voice down. 12 MR. HEINEMAN: Because I don't know of any evidence 13 that the doct o r ever looked at Jeffers and C u n n i n g h a m in 14 1953. Mr. Carr is suggesting that he did. 15 MR. CARR: No, I'm not. I'm suggesting that 16 Nestmann, these are the problems and he's looked at 17 N e s t m a n n ' s reports. 18 MR. HEINEMAN: No, you suggested that he has 19 exami n e d these people, and I'm objecting to that, b e c ause I 20 d on't know that there's any evidence that he did. 21 MR. CARR: The 36 people that he examined he 22 exami n e d this. 23 MR. HEINEMAN: Oh, really? 24 MR. CARR: I'm not suggesting that he examined this J.J o 1 person. 2 MR. HEINEMAN: Well, you certainly did by your 3 question. 4 MR. CARR: We'll clear it up if you think t h a t ' s 5 the case. 6 THE COURT: I did not get that implication from the 7 q u e s t i o n that he v/as implying that he had. Your o b j e c t i o n is 8 overruled. You may proceed. 9 MR. HEINEMAN: How about my objection as to its 10 irrelevance if he hasn't examined them. 11 THE COURT: You want to address that? 12 MR. CARR: The relevance is that this shows what 13 there was or was at least reported to be in 1955. Dr. 14 Suskind, as I understand, saw these reports, he saw these 15 reports, many of these same men, and he's announced to the 16 world they didn't have any problems. Monsanto -- and 17 Monsanto, of course, knew that he announced to the world, 18 because Zack was an employee of Monsanto when he made that 19 announcement to the world. They prepared that document 20 together. Monsant o knew these problems did not go away, 21 Monsanto knew that at least as late as 1955 that your 22 p h y s i c i a n reported that the -- therefore, this goes on to 23 impeach Monsanto's position that it's taken in the world. 24 MR. HEINEMAN: Your Honor, there's no evidence, J.J2 1 there's no evidence in this record that this witness has seen 2 any reports with respect to these individuals. There is no 3 such identification of the individuals in the Butch Viager 4 memo that Mr, Carr's referring to. It doesn't say, and the 5 witness denies seeing reports, he said he saw a report, but 6 he denied seeing more than one report. There's no evidence 7 that he saw any of these reports that are in Plaintiffs' 8 Exhibit 1779 as outlined in Butch Wager's memo. It isn't even 9 outlined that these are -- any of these people were the 10 people that Dr. Nestmann examined on M o n s a n t o ' s behalf. That 11 memo doesn't say, doesn't give the names of any of these 12 people. 13 THE COURT: A r e you saying that there c o u l d be more 14 of these types of memos that you haven't produced then? 15 MR. HEINEMAN: No. What are y o u t a l king about? 16 THE COURT: Okay. Your objection is overruled. 17 (The following p r o c eedings w e r e had in open Court.) 18 MR. CARR: Would you read the last question please. 19 (Court reporter read back the last question.) 20 A. No, sir. 21 Q. Doctor, did an y of these w o r k e r s ever call you in 22 on their own to examine them and treat them? 23 A. No, sir. 24 Q. Is it a fact that each time you came in and J.**U 1 examined and treated these men that you did so at the request 2 of the company? 3 A. No, sir. 4 Q. W h o requested you other than the company, Doctor? 5 A. When I casually examined Mr. Cunningham at the 6 workmen's compensation-- 7 Q. Doctor, I 'm not t a l king about Mr. C u n n i n g h a m 8 specifically. 9 A. Well, I am, because this is the case we're talking 10 a b o u t . 11 Q. Doctor, I 'm a sking y o u questions, sir, about all of 12 the workers that you saw. Did you not examine these workers 13 at the request of M o n s a n t o ? 14 MR. HEINEMAN: Objection, he i n t e r r u p t e d the prior 15 answer. 16 THE COURT: O b j e c t i o n is overruled. 17 A. The answer is no, sir. 18 Q. Did you examine these w o r k e r s or some of these 19 workers at the request of s o m e b o d y other than M o n s a n t o ? 20 A. Yes. 21 Q. Who requested you so to do, sir? 22 A. In November of 1956 I exam i n e d at the hearing, I 23 examined Mr. Cunningham, b e c a u s e he was there at the request 24 of the commission. x<* 1 Q.; W h o requested y o u to e x a mine them# Do c t o r ? 2 A. The commissioner asked me to look at these people 3 while they were there. They were -- they were -- 4 Q. Doctor# w e r e you -- and you saw who at that time# 5 Doctor? 6 A. I saw Harold Young# I saw Cecil Cunningham# the man 7 we're talking about now. 8 Q. Go ahead. D o c tor? 9 A. I saw Louie H a l l o r a n -- Hallman# I'm sorry# and Carl 10 Haning and Paul W i l l a r d at the time# and I w a s n ' t there to 11 examine people# sir. I w a s there as a -- to tell the 12 commission what I knew about the overall problem and what 13 kind of research I had done on this problem. I w a s n ' t there 14 to examine the people# but I was asked to. 15 Q. Doctor# you w e r e there at the request of Monsanto 16 to testify in behalf of Monsanto, were you not# sir? 17 A. I was asked to t e s t i f y as to w h a t I knew. 18 Q. Doctor, could you a n s w e r my question. You've 19 answered this question a dozen times before# and you have 20 testified that you were there at the request of M o nsanto 21 and-- 22 A. I was there at the r e q u e s t -- 23 Q. That you did t e s t i f y in behalf of M o n s anto? 24 A. I was there at the request of Monsanto. X*4 1 Q. And, Doctor, w h e n yo u exam i n e d these p eople on the 2 occasion of the time that you were there appearing for 3 Monsanto in 1956, were you aware of Dr. Nestmann's report 4 relating to Mr. Cunningham? 5 A. I was not, sir. 6 Q. Had you seen that report at the time in June of 7 *56, I think that m e m o is J u n e of 56? 8 A. '55. 9 Q. '55 w h e n y o u had this m e e ting th a t ' s referred to? 10 No, it's November of '55. 11 A. Right. 12 Q. The Mr. W a g e r m e m o in w h i c h these findings were 13 discussed with you, sir? 14 A. We didn't look at reports like you have given me, 15 s i r . 16 Q. Doctor, when you t e s t i f i e d in front of the 17 commission, you were aware of the fact that Dr. Nestmann, who 18 examined a number of employees for Monsanto had stated that 19 they were psychone u r o ti c , y o u w e r e aware of that fact, 20 weren't you, sir? 21 A. I was aware that he had examined some of the or 22 all, I really don't k n o w r I didn't know at the time how many 23 he examined and what the reports contained. 24 Q. Doctor, you -- my question -- 40 1 A. Individually# s i r 2 Q. Y o u*re aware that he stated they were 3 psychoneurotic? 4 A. I didn't know whether it was Cunningham that was in 5 that group# sir. 6 Q. Doctor# I'm not a sking you about C u n n i n g h a m at this 7 point in time. My question relates to what you knew at the 8 time you testified in front of the commission? Did you know 9 at that time that Nestmann had examined a number of these 10 workers, employees for Monsanto and made reports on these men 11 to Monsanto? 12 A. I knew that he had examined them# whether he 13 examined them for Monsanto, I can't remember, but I knew that 14 he had examined them a n d -- 15 Q. And did you know -- 16 A. -- We discussed -- . 17 Q. Doctor# my ques t i o n is did you know that he had 18 made reports to Mon s a n t o as to the condition of these men? 19 A. I'm not sure I knew that. I knew that he had -- 20 Q. Doctor -- 21 A. He had the impression-- 22 Q. Excuse me, Doctor. 23 A. He had the impression, sir. Let me finish. He had 24 the impression that these mean according to the Cornell 1 Medical Index test, which is not a very good one, were 2 psychoneurotic. 3 Q. Doctor, did you not advise the Monsanto a t t o r n e y s 4 that you would see about getting another opinion as to the 5 value of this particular test done by Dr. Nestmann? Didn't 6 you tell them that, sir? 7 A. I must have if that's what the record reads, sir. 8 Q. And you knew at that time that Mr. Stone was 9 a p p r e h e n s i v e as to the implications that could be d r a w n if 10 the Nestmann reports were submitted as evidence, you knew 11 that as well, did you not, sir? Doctor -- 12 A. That's what the Wager memorandum reads, sir. 13 Q. And you have no m e m o r y to dispute that, do you, 14 sir? 15 A. I can't recall whether that was so, sir, no. 16 Q. My quest i o n is you have no m e m o r y to d i s p u t e that, 17 do you, sir? 18 A. I have no memory to dispute that, yes. 19 Q. Thank you, Doctor. Now, Doctor, did you tell the 20 commi s s i o n that Nes t m a n n had found these employees, including 21 Mr. Cunningham that you examined there, that they were -- had 22 severe or moderately severe psychoneurosis? 23 A. I didn't have to, sir. 24 Q. Doctor, my question is-- 14D 1 A. No, I did not, sir. 2 Q. Did you tell them that, sir? 3 A. No, I did not, sir. 4 Q. And, Doctor, do you -- I think you t e s t ified 5 earlier that you were told by the Monsanto attorneys that 6 they would inform the commission as to the Nestmann 7 findings? Is that what you testified you were told earlier, 8 sir? 9 A. NO. 10 Q. Are you listening to me, Doctor? 11 A. I said in my testimony here, sir -- 12 Q. Yes. 13 A. -- That I believed that Dr. N e s t m a n n w o u l d be a 14 witness before the commission, and I believe he was. 15 Q. Doctor, you said that based upon what a t t o r n e y s 16 told you, correct, sir? 17 A. No, because I knew that he had e x a m i n e d -- 18 Q. W h o told you that, Doctor, who told you that he was 19 going to be a witness if it weren't the attor n e y s ? 20 A. I said I assumed, sir, that the d o c t o r -- 21 Q. Doctor, you also -- you also te s t i f i e d that you 22 assumed that from what you were told by the attorneys. Don't 23 y o u recall saying that? 24 MR. HEINEMAN: Objection, he cut off the witness in 146 1 the middle of the answer. 2 THE COURT: Overruled. 3 A. What's the question? 4 (Court reporter read back the last question.) 5 A. I don't recall saying that, but I might have done 6 that, sir. 7 Q. All right, Doctor^ 8 A. I might have done that, but I knew that he was 9 going to testify. 10 Q. Do you have any knowledge that he did in fact 11 testify, sir? 12 A. I believe I do now. 13 Q. And the source of that knowledge is what, sir? 14 A. The Monsanto attorneys. 15 Q. The Mons a n t o lawyers here have told you that Dr. 16 Nestmann testified? 17 A. When I asked them. 18 Q. Did the Monsanto att o r n e y s -- 19 A. I asked them, sir. 20 Q. -- Tell you that Dr. Nestmann tes t i f i e d at the 21 compensation commission hearings? 22 A. I asked them, and they said they b e l i e v e d that he 23 did. 24 Q. Doctor, my question is did these lawyers tell you 147 1 that he did in fact testify at the commission? 2 A. After I asked them, sir, yes. 3 Q. All right. Now, did they ever show you a 4 transcript of his testimony, sir? 5 A. No, sir, I haven't seen that, sir. 6 Q. Then you have no kno w l e d g e o t h e r t h a n what these 7 gentlemen have told you that he testified, isn't that 8 correct, sir? 9 A. I have no knowledge, I have no papers in hand. 10 Q. Doctor, my ques t i o n is you have no k n o w l e d g e as to 11 whether or not Dr. Nestmann testified other than what 12 Monsanto attorneys have told you, isn't that correct, sir? 13 A. After I asked about it, yes, sir. 14 Q. You haven't read a document? 15 A. No. 16 Q. You haven't read a report of the commission, you 17 haven't read anything in which he's described as having 18 testified, isn't that correct, sir? 19 A. That's true, sir. 20 Q. Yes. Now, D o c t o r -- 21 THE COURT: Mr. Carr, is this a good point for a 22 break? 23 MR. CARR: Yes, Your Honor. 24 THE COURT: We'll take a short break at this time 148 1 and then resume testimony. The admonishments that I gave you 2 earlier will apply during this break also. Court's in 3 recess. 4 (At this time a short recess w a s taken.) 5 6 (The fol l o w i n g p r o c e e d i n g s w e r e had in open Court.) 7 MR. CARRs Your Honor# may we approach the bench? 8 THE COURT: Yes# you may. 9 (At this time a c o n f e r e n c e wa s had at the b e n c h out 10 of the hearing of the jury.) 11 MR. CARR: The witness has indicated that counsel 12 has told him that Dr. Nes t m a n n t e s t i f i e d at the c o m p e n s a t i o n 13 hearing. 14 THE COURT: Yes. 15 MR. CARR: The transcripts that have been furnished 16 to us do not include a n y t e s t i m o n y of Dr. Nestmann. I'd like 17 counsel to state w h e t h e r or not there is a n y such t e s t imony 18 by Dr. Nestmann# whether or not there is any transcripts of 19 testimony of Dr. Nestmann. 20 MR. HEINEMAN: The answer to that q u e s t i o n is yes# 21 Dr. Nestmann has testified and that's information -- it's 22 public record# it's been a v a i l a b l e to Mr. Carr. 23 MR. CARR: I don't have it. It has not made 24 available to me 149 1 MR* HEINEMAN: There's so many times when you said 2 you didn't have something and we had to demonstrate that you 3 have it. 4 MR* CARR: In that mess of microfilm that you gave 5 us that you know there are reels and reels and reels of 6 microfilm. To my knowledge it is not in there* I have 7 testimony from the commission hearing. I do not have any of 3 that testimony, any testimony of Dr. Nestmann, and I ask the 9 Court to order counsel to produce the testimony Dr. Nestmann 10 to me if he has it this evening after Court. 11 MR. HEINEMAN: Your Honor, I have no p r o b l e m in 12 reproducing to Mr. Carr the tes t i m o n y of Dr. Nest m a n n -- 13 THE COURT: Great. 14 MR. HEINEMAN: -- That we have. 15 THE COURT: Great. 16 MR. HEINEMAN: I b e l i e v e that Mr. Carr a l r e a d y has 17 i t . 18 MR. CARR: In what form? 19 MR. HEINEMAN: As a transcript. 20 MR. CARR: I don't. 21 THE COURT: If you don't have any problem producing 22 it, if you don't have any producing it, w h y don't y o u have 23 one of your people call your office so it can be ready. 24 MR. HEINEMAN: Well, it isn't very long. He says 150 1 he doesn't have the Nestmann transcript. 2 MR. CARR: Testimony of Nestmann at the comp 3 hearings. 4 MR. NASSIF: He may not, I don't know. 5 THE COURT: Why don't you call-- 6 MR. NASSIF: H e's got it on microfilm.% I don't k now 7 if he's copied it or not. 8 THE COURT: Wait a second. Since there is no 9 p r o blem reproducing it, why don't you have someone call your 10 office and xerox it so it can be reproduced. Since you said 11 there's no problem, then there's no problem. 12 MR. HEINEMAN: All right. 13 THE COURT: Okay. 14 MR. HEINEMAN: Okay. I can give you -- 15 MR. CARR: I have no -- I have a copy of the 16 commi s s i o n hearing, but it did not include an y tes t i m o n y of 17 Dr. Nestmann. 18 MR. NASSIF: It's in the c o mmission records. v 19 MR. HEINEMAN: I have a copy of a p o r tion of it, I 20 know. I don't know how much else we have in St. Louis. 21 THE COURT: Umhm. Why don't you have someone call 22 both and put it together and then reproduce it. 23 MR. HEINEMAN: If there is something we don't have 24 in St. Louis, we m a y have to get it from Charleston. 151 1 THE COURT! I understand that* That's where it took 2 place* X understand that. 3 MR. HEINEMAN: I know we have some of it here. 4 THE COURT: Okay. 5 (The following proceedings were had in open Court.) 6 Q. Doctor, b efore the break you testified? 7 THE WITNESS: If Your Honor pleases, may I ask a 8 question, sir? 9 THE COURT: No, just please answer the question. 10 Mr. Carr, you may proceed. 11 THE WITNESS: T h e r e ' s something about the last 12 question that I answered, sir. 13 THE COURT: Doctor, please just answer the q u e stions 14 as they are asked of you. As I have explained to you before, 15 the a t t o r n e y for Mons a n t o has the right of redirect 16 examination where they can ask you various clarifying 17 questions or supplem e n t a l questions or any other questions 18 they in their professional judgment feel should be asked, and 19 the time when anything else other than this attorney asks you 20 should be c o v ered is w h e n the other attorneys asks. Mr. 21 Carr, you m a y proceed. 22 MR. CARR: Yes, Your Honor. 23 Q. Doctor, you testified shortly before the break that 24 you testified at the compensation commission hearing, and I 152 1 think you previously agreed that did you testify in behalf of 2 Monsanto, Are we clear on that? 3 A. I testified at the request of M o n s a n t o r sir, yes, 4 Q. No, I'm going more than that, Doctor, I'm saying 5 you testified in behalf of Monsanto, not just at their 6 request? 7 A. I'm saying I did not, I testified in m y own behalf 8 at the request of Monsanto, and what I did was to -- 9 Q. Excuse me, Doctor, you answered my.ques t i o n . You 10 said, your answer was that you did not testify in behalf of 11 Monsanto if I've got your answer correct, is that right, sir? 12 A. Yes, I'm saying that I testified at their request, 13 sir. 14. Q. No, Doctor, you understand, and t h at's the reason I 15 have to ask these questions over again when you give me a yes 16 answer, w h e n you preface it with some other remark, b e c a u s e 17 you're not answering my question. My question is, sir, you 18 testified in behalf of Monsanto at that commission hearing, 19 did you not, sir? 20 A. Well, I'm not altogether sure I u n d e r s t a n d what the 21 difference is on behalf or at the request. 22 Q. Doctor, my question is simply. You t e s t i f i e d in 23 behalf of Monsanto, did you not, sir, and you've read the 24 transcript that describes you as having testified in behalf 153 1 of Monsanto? 2 A- W e l l , if it says so then# I will agree t h a t that is 3 correct# sir. 4 0- Oh, Doctor, my ques t i o n is -- it's not w h e t h e r or 5 not I can prove that you're stating something wrong here. 6 That's not the important issue. The important issue is 7 whether or not you did in fact know then and know now that 8 you've testified in behalf of Monsanto. That's what's 9 important here. You do understand that, don't you# sir? 10 A. No, I do not, sir. 11 Q. Doctor, you have read your transcript of t e s t i m o n y 12 at the compensation commission, because I've asked you about 13 it -- 14 A. Correct. 15 Q. -- Before today, correct, sir? 16 A. Yes, yes. 17 Q. Don't you recall then after examination# sir# that 18 you did agree that you did testify in behalf of Monsanto 19 then, and you're now requiring me to cover the same 20 territory? 21 A. If that's what I said at the time#sir, then that's 22 how it stands. 23 Q. Doctor, I know that. No# my q u e s t i o n is don't you 24 recall that you testified that way, sir? Don't you recall 154 1 that, Dr. Suskind? Doctor, I'm asking you to search you're 2 memory and not your records. Dr. Suskind, do you hear me and 3 understand me? 4 A. Yes, sir, but this is -- . 5 Q. I 'm asking you don't you r e c a l l -- 6 A. -- 30 years ago, sir -- 7 Q. No, Doctor, I'm a s k i n g y o u -- 8 A. And I want to, I would like to make sure of the 9 language* 10 Q. Doctor, I'm asking you to t e s t i f y as to what you 11 recall about your testimony here, not 30 y ears ago* 12 A. It occurred 30 years ago, sir. 13 Q. I understand that, Doctor, but yo u tes t i f i e d here 14 just a few days ago. 15 A. Correct. 16 Q. Doctor, now my q u e s t i o n is do you recall having 17 testified here that you tes t i f i e d in b e h a l f of Mons a n t o at 18 that hearing? 19 A. If that's what I said, then I stand by it. 20 Q. No, Doctor, it's not just what you said. I'm just 21 simply asking you do you recall it, sir. If you don't recall 22 it, simply say you don't recall it, sir. C ould you answer my 23 question, sir? 24 A. Well, I c a n 't recall it, but I'd like to see it. 155 1 Q. That's finer Doctor. Now, do you have your copy of 2 your testimony at the compensation commission hearing? 3 A. I do indeed, sir, yes. 4 Q. W o uld you turn to p a g e numb e r e d 3, sir. 5 A. Yes, sir. 6 Q. Does it not describe you there as a witness called 7 in behalf of the employer? 8 A. Right, it does indeed. 9 Q. All right. Yes, Doctor. Now, Doctor, you also 10 testified here that you e x a m i n e d these six p e o p l e at the 11 request of the commission. Do you recall that, sir? 12 A, I did. 13 Q. Now, Doctor, you have your c o m p l e t e transcript of 14 testimony in front of you, d o you not, sir? 15 A. Of the t e s t i m o n y b e f o r e the -- 16 Q. Yes. 17 A. Yes, I do. 18 Q. When were you requested to examine these men for 19 the commission? 20 A. I really can't recall whether it was before the 21 hearing or whatever, but I know I examined them before the 22 hearing. 23 Q. Oh, I know that, Doctor, b u t m y ques t i o n is when 24 were you requested by the commission to examine them? 156 1 A, I d o n 't recall. 2 Q. Doctor, do you have any record at all that you were 3 ever requested by the commission to examine them? You have 4 no recollection, do you, sir? So my question, sir, is do you 5 have any record to indicate that you examined these men at 6 the request of the commission? 7 A. I don't have any record. It's my recollection, 8 sir. 9 Q. Doctor, you m e a n to say you do recall that the 10 commission asked you to examine them? 11 A. T h i s is my -- 12 Q. Or was it an a t t o r n e y that asked you to examine 13 them? 14 A. Sir, this is my best recollection. 15 Q. Sir, it is your recollection that the c o mmission 16 asked to you examine them? 17 A. That's what I said this morning. 18 Q. W h e n did t h e y ask you, sir? 19 A. T hat I can't tell you. 20 Q. Did you appear there at the commission just on one 21 day, Dr. Suskind? 22 A. Yes. 23 Q. Did you have a n y contact with the c o mmission a 24 month before that hearing, sir? 157 1 A. I can't recall, sir. 2 Q. Doctor, you did have contact w ith the attorneys, 3 did you not, sir? 4 A. Yes. 5 Q. And, Doctor, you examined these men the d a y be f o r e 6 you testified, didn't you, sir? 7 A. If that's the way it reads, then it must be so, 8 sir. 9 Q. Doctor, it's not -- that's not the question is that 10 the w a y it reads, whet h e r or not I can prove what I'm asking 11 you of, sir. The question is you did in fact examine them 12 the day before, didn't you, sir? 13 A. Well, sir, I cannot recall w h e ther it was the same 14 day -- 15 Q. Turn to Page 21, sir, of your testimony. Doctor, 16 do you find on that page the question asked of you by the 17 M o n s a n t o attorney, sir, this question, have you had a chance 18 to examine any of the 13 claimants whose claims are being 19 heard here today? W a s n ' t that the question asked of you by 20 the M o n s a n t o attorney? 21 A. Yes. 22 Q. And your answer was there, yes, we have, isn't that 23 right, sir? 24 A. Yes, and I see where I did. 158 1 Q. Sir? 2 A. And I see it was the afternoon before, sir* 3 Q. Doctor, there isno suggestion or statement here 4 that you examined these men in behalf of the commission, is 5 there, sir? 6 A* No, sir. 7 Q- And there is nothing in this record other than the 8 question, have you had a chance to examine any of the 13 9 claimants, isn't that right, sir? 10 A. That is right, sir, 11 Q. So you in f a c t -- 12 A. I didn't examine the 13 claimants. 13 Q. No, the question was had you had a c hance to 14 examine any of the 13 claimants. 15 A. Any of the 16 claimants, sir. 16 Q. Well, m y record is very poor, and it looks like a 3 17 to me, but I'll c e r t a i n l y accept 16, sir. 18 A. Yes, sir. 19 Q. And, Doctor, that's the question, isn't it, sir? 20 A. Yes, sir. 21 Q. If you had examined these people in b e half of the 22 commission, the commission would have asked you the question, 23 wouldn't they, sir? 24 A. Not necessarily. 159 1 Q. Doctor, didn't the atto r n e y for M o n s a n t o ask y o u to 2 examine these claimants? 3 A. I can't recall whether that's so. 4 Q. You can recall that it's not so either, ca n you? 5 A. No, I can't recall that it's not so. 6 Q. All right, Doctor. Doctor, you also at that time 7 before you testified you had read the reports of Dr. 8 Nestmann, had you not, sir? 9 A. No, sir. 10 Q. Doctor, turn to Page 48 of the c o m m i s s i o n hearings, 11 sir. 12 A. Page 8? 13 Q. Page 48. 14 A. 48, sir,thank you. 15 Q. It starts atPage 47 at the bottom. 16 A. Okay. 17 Q. Were you not asked, sir, by the M o n s a n t o a t t o r n e y 18 at the present time based upon your personal examination of 19 some of the claimants ye s t e r d a y and from y o u ' r e reading of 20 the reports of the special medical exa m i n i n g board, the 21 reports of Dr. Nestmann and O'Dell, and the s u m m a r y of the 22 testimony by Dr. Halloran, do you feel that there is any 23 existing disabilit y referrable to the skin; or other o rgans of 24 the men? 160 1 A. Right. 2 Q. Do you see that q u e s t i o n being a s k e d you, sir? 3 A. Yes, sir. 4 Q. And you did indeed read the reports of Dr. 5 Nestmann, did you not, sir? 6 A. No, sir. 7 Q- Doctor, did you -- 8 A. Not at the time of that hearing, sir. I had read 9 them since. 10 Q. Doctor, this ques t i o n -- 11 A. But not at the time of the hearing. 12 Q. Doesn't the quest i o n ask you, sir, f rom your -- 13 based upon your personal e x a m i n a t i o n and from your reading of 14 the reports of Drs. Nest m a n n and O ' D e l l ? D o e s n ' t that -- 15 isn't that in that question, sir, from your reading of the 16 these reports? 17 A. That's right, t hat's what the que s t i o n reads, sir. 18 Q. Doctor, did you say, no, you did not read the 19 reports of Nestmann? 20 A. No, I didn't: answer it that way, sir. I said from 21 my examination. 22 Q. Did you say that you did not read the reports of 23 D r . Nestmann? 24 A. No, but I d idn't say I read a report of Halloran 161 1 either. 2 Q. Doctor, I'm asking you -- 3 A. Or O'Dell. 4 Q. I'm asking you about Dr. Nestmann. How w o u l d this 5 attor n e y -- Had you in fact read the summary of the testimony 6 of Dr. Halloran? 7 A. The only thing I recall is that in Wa g e r ' s 8 memorandum -- 9 Q. Doctor, I'm not di s c u s s i n g W a g e r ' s m e m o r a n d u m now. 10 I'm asking you, sir, the a ttorney for M onsanto incorporated 11 in the question he asked you at the present time based upon 12 your personal examination and from your reading of the 13 reports of Dr. Nestmann, among others, what was your 14 opinion. Doctor, it's clear from the q u estion there that you 15 had read the reports of Dr. Nestmann, didn't you, sir? 16 MR. HEINEMAN: Objection, Your Honor, he 17 interrupted the prior answer of the witness. 18 THE COURT: O b j e c t i o n is overruled. Not 19 respo n s i v e . 20 A. This question indicates that the reports of Dr. 21 Nestmann, O'Dell, and the summary of Halloran, summary of the 22 testimony of Dr. Halloran were either a v a i l a b l e to us or we 23 had read them, but, sir, I honestly can't recall, honestly 24 can't recall that at that time I had gone over all of these 162 1 reports prior to my examining these people- I can't recall 2 that. 3 Q. Doctor, that's p e r f e c t l y all right -- 4 A. That's 30 years ago. 5 Q. -- That you can't recall it, but what y o u h a v e said 6 here, sir, is that you in fact did not read the reports. 7 A- Correct. 8 Q. And you swore under o ath that y o u d i d not read 9 them? 10 A. Correct. 11 Q. That you could recall what went on 30 y e a r s ago. 12 A* It was my best r e c o l l e c t i o n -- 13 Q. No, Doctor, you d i d n ' t say that. Yo u told us that 14 you d i d n 't read them. And, Doctor, here w h e n the a t t o r n e y 15 asks you the question that from your reading of it give an 16 opinion, you didn't say, well, hold it, I haven't read those 17 and I can't give an o p i nion b a s e d upon that- You gave your 18 opinion, didn't you, Doctor? 19 A. I gave my opinion from the examination that I did 20 of the men, sir. 21 Q. Now, Doctor -- 22 A. And what I k n e w about them. 23 Q. But the que s t i o n a s k e d you i n c l u d e d the reports, 24 didn't it, sir, based u p o n the report of the special medical 163 1 examining board/ report of Dr. Halloran, the report of 2 Nestraann, the report of O'Dell, it included all those things 3 in addition to your personal examination/ didn't it, sir? 4 A. I believe that this refers to the -- 5 Q. Isn't that correct/ sir, my question as s t a t e d -- 6 A. Yes, but I believe it refers to the report -- 7 Q. My q u e s t i o n -- 8 MR. CARR: Your Honor, would you ask the witness to 9 answer my question. 10 THE COURT: Doctor, please respond o n l y to the 11 question asked. 12 A. Would you repeat the question please. 13 (The court reporter read back the last question.) 14 A. This is how this thing reads here, yes. 15 Q. Doctor, did you tell the c o m m i s s i o n in your 16 testimony that Dr. Nestmann called most of these e m p l oyees 17 psychoneurotic? 18 A. No, I did not, sir. 19 Q. No, you did not, did you, sir? 20 A. No, I did not, and I had no reason to. 21 Q. Doctor, if the question was asked you -- strike 22 that. You were asked questions about whether or not these 23 people had emotional problems, anxiety and apprehension, 24 weren't you, sir? 164 1 A. Yes, I was. 2 Q. You were asked, matter of fact you w e r e exam i n e d at 3 some length on that point as we have established earlier, 4 isn't that right,sir? 5 A. That's quite true, sir. 6 Q. So you would have a reason then, would you not, 7 sir, to refer to Dr. Nestmann's diagnosis or impression? 8 A. Not necessarily, sir. 9 Q. Not necessarily, Doctor, but if you're b e i n g asked 10 about the anxieties and their problems and their e m o t ional 11 problems, nervousness, and all that, and you have already 12 been asked earlier to refer to the reports, your attention 13 has been direc t e d to them, woul d n ' t you have a reason to tell 14 the doctor, tell the commis s i o n about what N e s t m a n n has said? 15 A. Not necessarily, sir. 16 Q. Or could it be, Doctor, that the N e s t m a n n reports 17 were edited in some way or another? 18 A. What are you, what are you inferring-- 19 Q. You know w hat the w ord edit means, don't you? 20 A. I sure do. 21 Q. Could it b e -- 22 A. I take offense at what you said, sir. 23 Q. Oh, I'm not accusing you of editing them, Doctor? 24 A. W h o are you accusing of editing? 165 1 Q. I don't know who edited them/ Doctor/ but m y 2 ques t i o n is hypothetical* Could it be that the N e stmann 3 reports were edited? 4 A. I have no idea, sir, and I don't think they would 5 have been. 6 Q. Well, they sure, the Monsanto attorneys are sure 7 apprehensive about the implications, aren't they, sir? 8 A. Yes, but they made them available to the 9 commission* They made all of Nestmann's reports, available to 10 the commission, and you know it, sir. 11 Q. Oh, did they, sir? 12 A. Yes, sir. 13 Q. And do you know it, sir? 14 A. Yes, I do now. 15 Q. And who told you that they made all the reports 16 a v ailable? 17 A, The M o n s a n t o attorneys told me so and there's 18 evidence to prove that in memoranda, sir, which you should 19 have. 20 Q. And the m e m o r a n d a is what, Doctor? 21 A. Well, I don't k n o w what the Mem o r a n d a is, but I 22 know there is a memorandum. 23 Q. F r o m what, attorneys to somebody else that I should 24 have? 166 1 A* No, from the Monsanto files. 2 Q. Well -3 MR, CARR: Your Honor, could I include that among 4 the requests as well? 5 THE COURT: Gentlemen, could you approach the bench 6 please. 7 (At this time a co n f e r e n c e was had at the b e n c h out 8 of the hearing of the jury.)' 9 THE COURT: What memorandum is he talking about? 10 MR. HEINEMAN : I'm not sure I know, and, therefore, 11 I 'm -- 12 MR. CARR: I w o u l d like to request of Mon s a n t o any 13 documentation, memos, reports that they have that was 14 submitted to the c o m m i s s i o n in the form submitted, and I 15 would like to also have any memorandum referring to what will 16 or will not be sub m i t t e d to the c o mmission w i t h reference to 17 Dr. Nestm a n n or Dr. O 'Dell or a n y body else that submitted 18 reports. 19 MR. HEINEMAN: Sure. I can produce whatever has 20 been -- you want, you want what's been submitted by Monsanto 21 to the commission? 22 THE COURT: Umhm. 23 MR. CARR: R e p orts submitted b y Nestmann, O'Dell to 24 the commission, I want c opies of those reports that were in 167 1 fact submitted. If there is a memoranda or memorandum even 2 referring to what's going to be submitted to the commission 3 or not submitted to the commission, I would like to have that 4 as well. Any documents that you have that refer to the 5 matter of what the c o m m i s s i o n is going to be told relative to 6 Nestmann's reports. 7 MR. HEINEMAN: Yeah, I'll find out from Charleston. r 8 I don't have any idea. 9 THE COURT: Fine, and again to forestall any 10 problems, it either has to be submitted to Mr. Carr or if you 11 have a claim about it, it has to be sub m i t t e d to me in 12 camera. Anything that is in existence has to be submitted 13 either to Mr. Carr or to me just as before, same ground 14 r u l e s 15 MR. HEINEMAN: Okay. You m e a n in terms of if 16 there's any privilege to be a s s e rted? 17 THE COURT: If you are a s s e r t i n g any, then that has 18 to be given to me. If you are not asserting any, then give 19 it to Mr. Carr. 20 MR. HEINEMAN: Do you w a n t legal m e m o s that we've 21 written, memorandum that we've written to the Court? By we, 22 I mean, you know, that the lawyers that were h a n d l i n g this in 23 Charleston back in 1956. 24 MR. CARR: I w ant what e v e r m e m o r a n d a m i g h t be in 168 1 existence relative to what was or what was not given to the 2 compensation commission regarding Nestmann's reports, 3 including the reports, and the memoranda that may have gone 4 with the reports, if there was m e m o r a n d a that m a y be in the 5 lawyers' files relating to what they were or were not giving 6 to the commission, v/hat t h e y did give the c o m m ission* 7 MR. HEINEMAN: Well, obviously any memorandum that 8 would be in the lawyers' files is going to be -- well, that 9 depends on what it is. 10 THE COURT: Talk to the l a w yers in C harleston. 11 MR. HEINEMAN: W e ' l l have to see w h a t there is. 12 MR. CARR: May be something that the witness has 13 scene. 14 THE COURT: W h a t e v e r exists here in St. Louis or 15 Charleston is to be produced. 16 MR. HEINEMAN: All right. 17 (The following p r o c e e d i n g s w e r e had in open Court.) 18 Q. Doctor, you did respond to the commission, did you 19 not, sir, that it was impossible for you to say whether or 20 not their anxiety p r o b l e m s and a p p r e h e n s i o n s and fears had a 21 real basis and was connected to the exposure? 22 A. I believe I did that, sir, yes. 23 Q. And you gave that at the time you were privy to the 24 reports of Dr. Nestmann, d i d n ' t you, sir? 169 1 A. I knew of Dr, Nestmann's reports yes,, sir, 2 Q. All right. Now, Doctor, w i t h regard to Hr. W i l l a r d 3 while we're on the point of the commission and what was told 4 the commission, you, in fact, told the c ommission about Mr, 5 Willard's complaints, you didn't describe those as imaginary 6 or the product of psychoneurosis or the product of 7 nervousness at the time you talked to the commission, did 8 you, sir? Do you understand my question, Doctor? 9 A. Yes, I did, sir, and it's on Page 113. 10 Q. Doctor, before we get to 113, if you w i l l turn to 11 Page 94, at the bottom of the page you say, do you not, 12 Doctor, I can site these as when the symptoms of aches and 13 pains and nervousness and so- c a l l e d loss of vigor w e r e 14 moderate were Stiehl, Willard, Westfall, Berry, Hudnall, 15 Beckman, and Stover, isn't that correct, sir? Bottom of Page I16 94 and the top of Page 95. Do you see that, sir? 17 A . Yes, 18 Q. And you do desc r i b e those symptoms, those s ymptoms 19 of aches, pains, nervousness so-called loss of vigor that 20 were moderate with respect to Mr, Willard, did yo u not, sir? 21 A. I believe he is included in that, yes, sir. 22 Q. Doctor, my ques t i o n is you did so d e s c r i b e those 23 problems or those symptoms rather of Mr. Willard at that 24 time, didn't you, 3ir? 170 1 A. Yes, 1 did/ sir. 2 Q. Doctor/ on the next page on 95 you were ask e d 3 whether or not these men that told you that were truthful, 4 didn't you, sir, weren't you, sir, and you said at that time 5 that in the main these men were fairly truthful, you said 6 that, didn't you, sir? 7 A. I said fairly truthful. 8 Q. Didn't you, sir, You said that? 9 A. Fairly truthful. 10 Q. Doctor, on Page 96 you were asked whether or not 11 the aches and pains were there and what did you say about the 12 aches and pains that these men had described to you, sir, 13 that Willard among others had described to you? 14 i A. I said that the aches and pains w e r e there, they 15 believed they had them, yes. 16 Q. Oh, Doctor, now you've added something. Please 17 read to the jury what you said then without the addition. 18 Read exactly what you told the commission as to whether or 19 not the aches and pains were there. 20 A. My answer is, I would say that the aches a n d pains 21 were there. It's followed by an explanation, sir. 22 Q. Doctor, there is no explanation followed. That is 23 the complete answer that you gave at that time, is it not, 24 sir? 171 1 A. No, there is a -- 2 Q. Doctor, did you read the complete answer that you 3 gave? 4 A* I did, but there is an explanation after that, sir. 5 Q. Doctor, there is another q uestion that's asked you, 6 isn't that right, sir? 7 A. Yes, but in the answer to that ques t i o n -- 8 Q. Excuse me, Doctor. Doctor, your answer that you 9 gave at that time was whole and complete, wasn't it, sir? 10 A. No, sir, b e c ause other questions were asked about 11 it, sir, and they're on Page 96 and 97. 12 Q. Doctor, the q u e s t i o n was asked you, w o u l d the fact 13 that you were not, that you cou l d not find t h e m be c o n c l u s i v e 14 towards saying that the aches and pains were not there? 15 Wasn't that the question asked you? 16 A. That was the first question, sir. 17 Q. Doctor, m y ques t i o n is wasn't that q u e s t i o n asked 18 you? 19 A. Yes, it was, sir. 20 Q. Wasn't your response to that question whether or 21 not you could say that the aches and pains were not there, 22 wasn't your answer to that question, I would s a y that the 23 aches and pains w e r e there. W a s n ' t that your a nswer at that 24 time? 172 1 A. Indeed it w a s f sir, that is the answer I gave, and 2 I believe that. 3 Q. Sir? 4 A. I believe that. 5 Q. Doctor, all I asked you wasn't that your answer at 6 that time? 7 A. It was indeed at that time. 8 Q. Doctor, your answer in 1956 to the commis s i o n was, 9 w ith regard to Mr. W i l l a r d is that the aches arid pains were 10 there, isn't that correct, sir? 11 A. Yes. 12 Q. Yes. And, Doctor, you didn't examine Mr. W i l l a r d 13 after 1956, did you, sir? 14 A. Yes, I did, sir. 15 Q. You exam i n e d him in 1979, didn't you, sir? 16 A. Yes, but you asked me whether I examined him 17 afterwards, and I said yes, sir. 18 Q. All right. And you did indeed, but you did not 19 examine him in between the time you examined him there the 20 day before this hearing, sir, and 1979, did you, sir? 21 A. I don't b e l i e v e I did, sir. 22 Q. Doctor,, w e ' v e a l r e a d y gone through your b elief at 23 the present time, isn't that correct, sir? 24 A. I don't k n o w w h a t you're talking about belief. 173 1 Belief as to what? 2 Q, W h e t h e r or not his aches and pains were there, 3 A, I think my answer is in this 1953 hearing that the 4 aches and pains were there, 5 Q. This is a 1956 hearing, Doctor. 6 A, '56 I mean. 7 Q. And on Page 97 you say that in 1953 there were 8 still men not working as caused by the aches and pains, did 9 you not, sir? 10 A. W i t hout any o b j e c t i v e findings is w r i t t e n after 11 that, sir. 12 Q. Doctor, m y q u e s t i o n to you, sir, is you -- did you 13 not say in 1953 that there w e r e m e n w h o w e r e still not 14 working because of their a c h e s and pains w i t h o u t objective 15 findings? 16 A. I did, sir, 17 Q, Did you not say that they w e r e n ' t w o r king because 18 of their aches and pains, sir? 19 A, That is what 1 said. 20 Q. Wasn ' t W i l l a r d among those p eople who were not 21 working in 1953, sir? 22 A. That is true, sir. 23 Q. Yes. An d you said at that time he was not working 24 because of his aches and pains, isn't that correct, sir? 174 1 A. Because he believed he had aches and pains. 2 Q. No, Doctor, that isn't what you said then. You 3 said then, sir, that he wasn't working because of his aches 4 and pains, did you not, sir, on Page 97, sir? Doctor, w o uld 5 you look to Page 97 and answer my question? 6 A. I will as soon as I get to the *53 report. 7 Q. Doctor, I'm not asking you about the 1953 report. 8 I'm asking you what you testified to before the commission, 9 sir. 10 A. I did, and it had to do with the 1953 report, sir. 11 Q. Indeed it did, sir. 12 A. Sure. 13 Q. It had to do with your 1953 examination. But m y 14 question to you, sir, is you said to the commission that he 15 wasn't working because of the aches and pains, didn't you, 16 sir? 17 A. That's what I said, sir. 18 Q. Yes. Now, Doctor, and you've also d e s c r i b e d in 19 this report, you don't describe in this commission testimony, 20 you don't describe him as a psychoneurotic, do you, sir? 21 Matter of fact, you don't even come close to the word 22 psychoneurotic. You describe him as a tense person, as a 23 very tense person, don't you, sir on Page 113? 24 A. Yes, there is additional m a t e r i a l on Page 98 that _ 175 1 you can refer to, sir. 2 Q. Doctor, my question to you, sir, is that y o u did 3 not refer to this m a n as p s y c h o n e u r o ti c or unstable, did 4 you,sir, or neurotic or nervous -- not nervous, you did say 5 he was nervous at one place in point of time, but you did not 6 say that he was psychoneurotic, did you, sir? Did you, sir? 7 A. I believe I have, sir, on Page 98 as a general 8 discussion of the -- of the problem of fear of job of 9 physical condition. 10 Q. Doctor, on Page 98 you said you didn't think any of 11 these men at the present time had any fear? 12 A. Yes, that i s -- 13 Q. -- Of the job or physical condition. T h a t ' s w h a t 14 you told the commission. 15 A. T h at's what I said. 16 Q. You said the exact opposite of the me n being 17 neurotic. You told the commi s s i o n that they di d n ' t have any 18 fear at the present time. That's what you told the 19 commission. 20 A. Not necessarily, sir. 21 Q. Doctor, that is e x a ctly what you said. I do not -- 22 The part you referred us to, I do not think that a n y of these 23 men at the p r e sent time have an y fear of his job or physical 24 condition. Isn't that what you said then, sir? 176 1 A. There is another part -- 2 Q. Doctor, isn't that what you said then, sir? 3 A. That's an incomplete -- 4 Q. Doctor, isn't that what you said then, sir? 5 A. -- Quotation, sir. That's an incomplete quotation, 6 sir. Read the rest of it. 7 Q. You went on to say, and if they do, and I think 8 that is a dual presumption, because I don't think they do. 9 A. Okay. 10 Q. T h a t ' s what you said, isn't that right, sir? 11 A. Correct, sir. 12 Q. Because it doesn't interfere w i t h their job by 13 their ov/n admission. You were giving an argument to the 14 commi s s i o n at that time that these men were not neurotic, 15 that t hey did not have any fears associated w i t h their jobs 16 or their physical condition, isn't that correct, sir? 17 A. No, sir. 18 Q* Where do you tell them that there, that they do 19 have fears of their jobs and physical condition? 20 A. I say that -- 21 Q. Point out the page to me please. 22 A. Page 98, the aches and pains. 23 Q. 98 we just read, didn't we. Doctor? 24 A. No, at the b o t t o m of the page, sir, their aches and 177 1 pains did interfere with the performance by these men in 2 their jobs, but since they do not have aches and pains any 3 more, there i s n 't anyt h i n g to interfere w i t h them. 4 Q. Doctor, you told the commission, and this is not 5 anything regarding their neurotic condition -- my question to 6 you so we w o n 't get off on that point, m y question to you, 7 sir, is that you were trying to convince the commission that 8 these men were not neurotic, that they did not have any fears 9 or apprehensions connected with their jobs or physical 10 condition, isn't that correct, sir? 11 A. No, sir. 12 Q. Well, w h e r e i n -- i s n 't that w h a t you say on Page 13 98? 14 A. No, not necessarily. 15 Q. Oh, Doctor, not necessarily. That can cover the 16 world. D o n 't you s a y -- 17 A. We didn't discuss neuroses here, sir. 18 Q. Doctor, don't you say, I do not think that any of 19 these m e n at the p r e s e n t time have a n y fear of his job or 20 physical c o n dition ? 21 A. Correct. 22 Q. Doctor, is there a n y w h e r e in this report that you 23 describe Mr. V/illard as being anything other than very tense? A. I h a v e n 't read t h r ough this w h o l e report. Q. Doctor, you cer t a i n l y don't d e s c r i b e hi m as being a neurotic in this paragraph,, do you, sir, this sentence that we just read, isn't that right, sir? A. Are you asking me there is nothing in here that describes him as a neurotic? Q. Doctor, could you listen to m y q u e stion? MR* CARR: Would you read the question to him piease. A. Would you read the question? (Court reporter read" back the last question.) A. Not in that sentence, sir. Q. Doctor, the only other reference to Mr. W i l l a r d or his mental or emotional condition by you is on Page 113, isn't that correct, sir? A. 115, sir. Q- 115? A. Umhin. I'm sorry, 113, y ou're right, I apologize. Q. 113, Doctor, d e s c r i b e s Mr. W i l l a r d as a v e r y tense individual, doesn't it, sir? Isn't that the sole d escription you make of his emotional condition or psychological condition? A. No, sir. Q. Where else do you d e s c r i b e h i s -- A. But he was concerned with the fact-- j 179 1 Q. Doctor, where else do you d e s c r i b e his emotional or 2 psychological condition? 3 A. On Page 113, sir. 4 Q. He states a concern w i t h the fact that the doctor 5 told him he had a heart disease? 6 A. Correct. 7 Q. That's certainly something t h a t -- 8 A. That's correct. 9 Q. -- Absolutely normal, well a d j u s t e d p e r s o n w o u l d be 10 concerned about if the doctor told him he had a heart 11 disease, wouldn't it, sir? 12 A. Not necessarily, sir. 13 Q. Doctor, you m e a n to say that if an o r d i n a r y normal 14 well adjusted person is told by his doctor that he has a 15 heart disease, that he should not be c o n c e r n e d a b o u t it, that 16 he wouldn't be concerned about it? He would be insane not to 17 be concerned about it, wouldn't he,sir? 18 A. Yes, there were other reasons, too, sir. 19 Q. Doctor, my question is b e c a u s e he is co n c e r n e d with 20 the fact that his doctor told him he had a heart disease 21 doesn't in any way indicate that he's a neurotic individual, 22 does it, sir? 23 A. If it persists, yes, sir. 24 Q. Doctor, but w e ' r e not t a l k i n g a b o u t persistent, 180 1 because the only thing you site there, sir, is not a 2 persistence of it, but what you say is the doctor t o l d him 3 that he had a heart disease that was incurable and he was 4 concerned about it. 5 HR. HEINEMAN: Objection. 6 A. As of 1953, sir. 7 MR. HEINEMAN: Objection, Your Honor, may counsel 8 approach the bench? 9 THE COURT: Yes, you may, 10 (At this time a c o n f e r e n c e w a s had at the b e n c h out 11 of the hearing of the jury.) 12 MR. HEINEMAN: Do you think that persistence would 13 be covered by the phrase from w h i c h the m a n has recovered? 14 Now, that's in there. Now, I object to the q u e s t i o n as being 15 a false misleading statement of what's there. 16 THE COURT: Shh. 17 MR. HEINEMAN: The problem is -- 18 THE COURT: Wait. Let me read it. 19 MR. CARR; It's not in any w a y c o n t r a d i c t o r y w hat 20 I'm asking the witness, Your Honor. W e ' r e t a l k i n g concern, 21 the question is concern of the man. 22 MR. HEINEMAN: The question is w h e t h e r or not the 23 man would still have the c o n cern once he k n e w t h a t the 24 prob l e m wasn't there, and here it says that the guy's problem 181 1 is the doctor told him he had this, and the doctor caused 2 heart disease from which the man has recovered. 3 MR. CARR: Does that say the man knew it? 4 MR. H E I N E M A N : How do we find out? 5 MR. CARR: Y ou're m aking the objection. Does it say 6 that the man knew it? 7 MR. HEINEMAN: I don't have to answer your 8 questions. My objection is that the question is misleading, 9 and he's talking about persistence, and the issue is that the 10 man recovered from it. That's what the testimony was. 11 THE COURT: Objection is overruled. That's not what 12 it says, that's not the implication. 13 MR. HEINEMAN: Not what it says? 14 THE COURT: You read that. The problem with your 15 position is just what Mr. Carr stated as far as the inference 16 of that sentence, that's the problem with the position that 17 you've taken as far as the basis for your objection. Your 18 objection is overruled. The question is not misleading. 19 MR. HEINEMAN: May I read this into the record. 20 THE COURT: I thought you did. 21 MR. HEINEMAN: So that at the App e l l a t e Court it 22 will be there for the App e l l a t e Court. 23 MR. CARR: I'm going to read it to the witness when 24 I get back 182 1 THE COURT: Go ahead. Why have it read twice? 2 MR. HEINEMAN: I need to have it part of my 3 objection. 4 THE COURT: It's referred to. I don't need to have 5 it read twice. Objection is overruled. Mr. Carr, you may 6 proceed. 7 (The following proceedings were had in open Court.) 8 Q. Doctor, the c o m m i s s i o n ' s transcript goes on to say, 9 it says, does it not, this man, who is very tense, was Paul 10 Willard. His concern was not with his acne and not with his 11 liver, but he was concerned about the fact that a doctor had 12 told m a n y he had heart d i s e a s e w h i c h was incurable, and this 13 man had what I regarded and put into the record -- I can't 14 make out that word on m i n e -- what diacter-- 15 A. Iatrogenic. 16 Q. I got a D on mine. Isn't there a D there? 17 A. It's a tr a n s c ription error. 18 Q. D- I -- 19 A. It's a transcription error, sir. 20 Q. Well, it reads diactorenia, doesn't it, sir? 21 A. No, it should read iatrogenic, I-A-T-R-0-- 22 Q. In any event you s a y you put into the record 23 iatrogenic, w h i c h m e a n s the d octor caused heart disease, from 24 w h i c h the man has* recovered? 183 1 A. Right. 2 Q. Is that correct, sir? 3 A. Correct. 4 Q. Doctor, is there a n y indication there that the man 5 was told by his doctor that he had recovered from this heart 6 disease? ; 7 A. I believe he indicated to us that he had. 6 Q. Doctor, m y q u e s t i o n to you, sir, in this record of 9 some 30 years ago is there any -- nearly 40 -- 30 years ago, 10 is there any indication that this man was told by his doctor 11 that he had recovered f r o m the heart disease? 12 A. Not in this record, sir. 13 Q. All right, Doctor. Where in this record, sir, is 14 there any indication that this man was a neurotic, unstable 15 individual who had fears and apprehensions about his physical 16 condition? 17 A. I haven't reviewed this record completely, but I 18 don't know of any statement that we made at the time which 19 specifically menti o n s that these men were psychoneurotic, I 20 do not. 21 Q. Doctor, in point of fact, you were arguing w i t h the 22 commission or at least Monsanto was taking the position that 23 you were supporting that t h e y had no problems that stemmed 24 from their exposure emotionally, isn't that correct, sir? 184 1 Isn't that correct, sir? 2 A. I believe at that time this was our view# sir. 3 Q. Yes# indeed. D octor back# to w h a t Mons a n t o knew in 4 fact was the condition of these men, back on the report of 5 doctor -- of his report with reference to Mr. Cunningham, he 6 points out there -- it's reported# is it not, sir, about him 7 going to pieces with his nerves? 8 A. Are you referring -- 9 Q. I'm now on Exhi b i t 1779# Dr. Suskind. 10 A. Yes, sir. 11 Q. Doctor, in 1955 -- strike that -- in 1956 w h e n you 12 testified in front of commission, you knew that Dr. Nestmann 13 had reported that this m a n said he'd go to pieces w i t h his 14 nerves if he starts to exercise, isn't that correct, sir? 15 A. X didn't see this report before, sir. I had no -- 16 Q. Doctor, we have gone t h r ough the c o m m i s s i o n 17 transcripts to e s t a b l i s h that you w e r e s eeing Dr. Nestmann*s 18 reports, and Mr. Cunningham was one of those claimants# was 19 he not, sir? 20 A. He was# sir. 21 Q. You test i f i e d w i t h regard to Mr. Cunningham, did 22 you not, sir? 23 A. I -- he was one of the p e o p l e I examined, sir. 24 Q. You didn't tell the commission# did you# sir, that 185 1 this man has problems reported by Dr. Nestraann that he's go 2 to pieces with his nerves? 3 A. I can't recall doing that, sir, but that's 30 years 4 ago. 5 Q. It's not in the record here, is it, sir? 6 A. It certa i n l y is not. 7 Q. All right, Doctor. The man w e n t on to d e s c r i b e the 8 problem that he had with his sexual ability, does it not, 9 sir, difficulty with erection? Middle of the page. Doctor, 10 starting with the sentence that says he's had t r o uble w i t h 11 his sexual life starting in 1951. 12 A. Yes. 13 Q. Doctor, he also d e s c r i b e d to the d o c t o r that he's 14 got eyes that have been dilating for which he's received 15 treatment, correct, sir, takes m e d i c a t i o n to b r i n g t h e m d own 16 to normal size, correct, sir? 17 A. This is what he told the doctor, sir. 18 Q. He told the doctor in addition that he's seeing Dr. 19 Breisacher for that and g e t ting medi c i n e for it, d o e s n ' t it, 20 sir? 21 A. He told the doctor that, sir. 22 Q. Do you have an y reason to doubt w h a t he wa s saying 23 was the truth? A. I have no opinion on that, sir. 186 1 Q. Doctor, if the eyes are in fact dilating, started 2 dilating in 1952, that's a serious problem, isn't it, sir? 3 A. X have no idea, I'm not an o p t h a m o l o g i s t , and I 4 can't comment here or anywhere on it, 5 Q. Doctor, if it was occurring, it w o u l d be an 6 indication of something going wrong with the central nervous 7 system? 6 A, Not necessarily, sir, no. 9 Q- Could it, Doctor? XO A. No. II Q- It could not? 12 A. No, it doesn't have to be. It could be a --- 13 Q. Doctor, I d i dn't ask you didn't it have to be. 14 said it could be, didn't I, sir? 15 A. It might be, but remotely, sir. 16 Q. That's what I have asked you. 17 A. Remotely, sir. 18 Q. Doctor, it could be, coul d n ' t it, sir? 19 A. At the moment I would say no. 20 Q. All right, Doctor. But in any event he had the 21 p r o b l e m and did you ever find out an e x p lanation for it 22 than d i o x i n exposure? 23 MR. HEINEMAN; Objection, Your Honor, it a s s umes he 24 knew about it 187 1 A. What's the question, sir? 2 THE COURT: Objection overruled. 3 A. Can you repeat the question? W h a t is the question? 4 (Court reporter read back the last question.) 5 A. I can't answer that question, sir. First of all, 1 6 have no idea whether or not any of these things are caused by 7 dioxin. I have no idea. 8 Q - You have no idea? 9 A. I have no idea. 10 Q - All right, Doctor. If you have no i dea-- 11 A. I would say that in the m a j o r i t y -- 12 Q - We can pass on if you have no idea, Doctor, tj^t me 13 finish please, sir. If you have no idea w h e t h e r or not 14 dioxin can cause these problems, let's pass to the next 15 question. 16 A. Let me finish my answer, sir. 17 Q. My concern in this case is w i t h w h a t d i o x i n can 18 cause, and if you have no idea 19 A. Dioxin cannot cause a dilated eye. 20 Q. Oh, then do you have a -- 21 A. Oh, I actually do. 22 Q. So when you said you had no idea, you w ere 23 incorrect, is that right, Doctor? 24 A. No, I was not incorrect. You have. 188 1 Q. Do you have an idea or not, sir? 2 A. Mr. Carr, you have attempted to confuse me by 3 asking long questions. 4 Q. Doctor, please believe me, I'm incapable of 5 confusing you. Doctor, do you or do you not have an idea 6 whether or not dioxin can cause central nervous system 7 disorders and/or problems with the eyes, including dilation 8 of the eyes? 9 A. Yes, I do. 10 Q. And your judgment, sir, is that it cannot do any of 11 those things? 12 A. I have never heard o f -- 13 Q. Excuse me, Doctor. Is your judgment that it cannot 14 do a n y of those things? 15 A. No, I didn't say that. It's in m y judgment. 16 Q. Can it do some of those things. If so, w h i c h ones 17 in your judgment? 18 A. In my judgment an acute exposure might cause some 19 central-- acute exposure might cause some central nervous 20 system effects, but I have never seen -- 21 Q. W h a t effects, Doctor, would t h o s e -- 22 A. Let me finish, sir. 23 Q. Doctor, I'm not interested in what y ou've ever 24 seen. I'm interested in your judgment, sir. 189 1 HR. HEINEMAN: Objection, Your Honor. 2 A. That is ray judgment. I make a judgment on what my 3 experience has been and if you have -- if you would have the 4 courtesy to allow-- 5 THE COURT: Doctor, counsel for Monsanto was trying 6 to object. If he has an objection to interpose, please let 7 him do so. Give him a chance. 8 MR. H E INEMAN: My objection, Your Honor, was that 9 the witness was asked a question about his opinion and his 10 judgment, and he was in the m i ddle of giving that when Mr. 11 Carr interrupted him again, and I object to it and ask that 12 he be allowed to finish his answer. 13 MR. CARR: Y o u r Honor, I d idn't ask him what his 14 experience was. I asked what his judgment was, because once 15 he gave me his judgment. I was going to examine him on that. 16 I didn't ask him what his experience was. 17 THE COURT: O b j e c t i o n is overruled. Yo u m a y 18 continue please, Mr. Carr. 19 Q* Doctor, what o t h e r -- what problems with the central 20 nervous system do you b e l ieve diox i n can cause? 21 A. There is evid e n c e that some -- 22 Q. Doctor, stop a m o m e n t there so we can get on the 23 same question. I'm not a s k i n g you w h e t h e r there is or is not 24 evidence for anything. I'm a s k i n g you what central nervous 190 1 system disorders in your judgment can dioxin cause? 2 A. In my opinion, sir, none. 3 Q. All right. 4 A. Okay. 5 Q. All right. 6 A. Okay. 7 Q. All right. D o c t o r , now, the p r o b l e m that this man 8 had he also had in v i s i o n problems that started in *49 or 9 *50, isn't that right, sir? He says he a lways had good 10 vision, sir? Do you see that, sir, third p a r a g r a p h from the 11 b o ttom that starts past history, he says that his vision was 12 good until he had the a c c i d e n t and has needed -- I can't read 13 that. 14 A. Glasses. 15 Q. Glasses since '49 or 1950, do y o u see that, sir? 16 A . Yssi 17 Q. He dates his p r o b l e m w i t h his eyes, his v i sion to 18 the exposure, does he not, sir? 19 MR. HEINEMAN: Objection, your Honor. May counsel 20 appr o a c h the bench. 21 THE COURT: Yes, you may. 22 (At this time a c o n f e r e n c e was had at the bench out 23 of the hearing of the jury.) 24 MR. HEINEMAN: T h i s w o r d looks to me like health, 191 1 not vision. 2 THE COURT: Which one are you on? 3 MR. HEINEMAN: Past history, he has always had good 4 health until the time, not vision. 5 THE COURT: The second one talks about vision. I 6 think it does say that. After that he says his v i s i o n was 7 good until he had the accident and has needed glasses since 8 1949 or 1950.. I think that probably does say health on top. 9 MR. CARR: Fine with me. 10 MR. HEINEMAN: All right. 11 THE COURT: Okay. L e t 's go on. 12 (The following p r o c e e d i n g s were had in open Court.) 13 Q. Doctor, that p a r a g r a p h says t hat he always 14 something had, oh, he has a l w a y s had good h e a l t h until the 15 time of the accident, I guess, the time of his accident. He 16 says that his v i sio n was good until he had the a c c i d e n t and 17 has needed glasses since *49 or *50, is that correct, sir? 18 A. T h a t 's what this record reads, sir. 19 Q. He also says he w a s n ' t n e r vous b e f o r e the accident, 20 doesn't he, sir? 21 A. He said he denies nerv o u s n e s s p rior to the 22 accident, yes. 23 Q. Isn't that saying that he w a s n ' t n e r v o u s b e f o r e the 24 accident? 192 1 A. Yes, sir, 2 Q. Doesn't he also say that he has noct u r i a two or 3 three times a night, that is, he has to go to the bathroom 4 two or three times a night? 5 A, Where are you reading from, sir? 6 Q. The last par a g r a p h on that page. Doctor. He has 7 had nocturia two or three times? 8 A. That's what this reads, sir. 9 Q. But this was thought due to his n e r v o u s n e s s ? 10 A. That's what it reads, sir. 11 Q. I can't make out what the rest of that is, there's 12 a number over it. But he stillgets -- he gets w h a t ? He 13 gets di something in his nervous spells? Can you m a k e that 14 out, Doctor? 15 A. No, I can't. 16 Q. Oh, shortness of breath, he gets sho r t n e s s of 17 breath, dyspnea in nervous spells, correct, sir? 18 A. It might be dyspnea, it's covered by -- 19 Q. He has a dull ache in his chest, w h i c h he notes 20 with the nervous spells, is that correct, sir? 21 A. That's what he claims, sir. 22 Q. Top of the next page he tells us t hings that I 23 can't make out in the first couple of lines, but in the third 24 line he says nerves are bad. He states he has b l a c k e d out 193 1 something, oh, as long as two minutes at a time, and this is 2 a symptom that has only started since January 10th, 1955, and 3 he's had it eight or ten times since then, correct, sir? 4 A. C orrect, s i r . 5 Q. This doctor also performed a neurological 6 examination as far as reflexes, did he not, sir? 7 A. Correct, sir. 8 Q. He found that his ankle jerks w e r e absent, di d n ' t 9 he, sir? 10 A. Correct, sir. 11 Q. Doctor, he concluded with saying that the m a n had a 12 m o d e r a t e l y severe or severe psychoneurosis, correct, sir, 13 that was his diagno s i s ? 14 A. That was the diagnosis on this man, sir. 15 Q. Now, he d idn't say impression there, did he, sir? 16 A. No, sir. 17 Q. He said his diagnosis there, c o rrect,sir? 18 A. That's what he said, sir. 19 Q. The next report is on Donald Stover, is it not, 20 sir? It's one of our persons that you re-examined in 1 9 7 9 / is 21 that correct, sir? 22 A. I believe so. 23 Q. Doctor, he reports a c c ording to Dr. Nestraann that 24 he -- his chief complaints he stays tired, he can't do a hard 194 1 day's work and he has hemorrhoids, correct, sir? 2 A. Correct* 3 Q. Doctor, he points out that he has n o t -- he tells 4 the doctor he hasn't been well for the past two, two and a 5 half, three years, is that correct, sir? 6 A. Y e s , y e s , s i r . 7 Q. And he says after enduring the time he had the 8 rash, he noticed he had nervous spells, would get overly 9 tired,and he's had to force himself to do his work ever 10 since, isn't that right, Doctor? 11 A. T h at's the w a y the record reads, sir. 12 Q* So if that is true, that means the man has gone to 13 work, but he's forced himself to do it? 14 A* That's what he claims, sir. 15 Q. If that is true, is that right, sir? 16 A. I don't know if it's true, but that's what he 17 claims. 18 Q. Doctor, I asked you if that is true, that m e a n s the 19 m a n has forced himself to go to work, doesn't it, sir? 20 A. That's what he says he's done. He says he's forced 21 himself to do his work ever since. 22 Q. Doctor, what did you understand I was aski n g you? 23 A. You asked me whether he -- didn't he force himself 24 to do his work 195 1 Q. N o , I asked you if it'3 true, sir? 2 A. I said yes. 3 Q. I asked you if it's true, sir. 4 A. I don't know, sir. 5 Q. Doctor, I'll ask yo u if this is true, if what he 6 told the doctor is the truth, this man has had real problems 7 doing his job since the time of the exposure, has he not, 8 sir? 9 A. No, sir. 10 HR. HEINEMAN: E x cuse me. Your Honor, I'll object 11 to the form of the question as asking the witness to assume 12 something that's not in evidence. 13 THE COURT: Objection is overruled. 14 Q. Does he say that, Doctor? 15 A. Does he say what, sir? 16 Q. That he's had real problems doing his work since 17 the a c cident? 18 A. He doesn't say it that way, sir. 19 Q. No, indeed, he does n ' t say it that way, but that's 20 the essence of what he says, isn't it, sir? 21 A. No. 22 Q. Doctor, if y o u can't, if you stay tired and you 23 can't do a hard day's work and you have to force yourself to 24 work, you get overly tired, isn't that a real problem? 196 1 A. If it's true, sir. 2 Q. That's what I said, Doctor, if it's true, that's a 3 real problem, isn't it, sir? 4 A. If it's true, and I don't think it is here. 5 MR. CARRs Your Honor, would you ask the jury to 6 disregard what the doctor said. I didn't ask him what he 7 thought. 8 THE COURT: I think it was not responsive to the 9 question. The jury is ordered to disregard the last remark 10 by the doctor. 11 MR. H E I N E M A N ; Your Honor, ma y c o u n s e l app r o a c h the 12 bench? 13 THE COURT: Yes, you may. 14 (At this time a c o n f e r e n c e w a s had at the bench out 15 of the hearing of the jury.) 16 MR. H E I N E M A N : He asked the ma n to a s s u m e something 17 on which there's no evidence at all, and that is that it's 18 true. All right. He asked the plan to assume it's true and 19 then says if it's true, then s u c h and such w o u l d be the 20 case. The man says if it's true, that w o u l d be the case, but 21 I don't think it's true. 22 THE COURT: Right, and that last part was not at all 23 responsive to the question. It was not c a l l e d for in the 24 question, I've alr e a d y o v e r r u l e d your o b j e c t i o n as far as it 197 1 being -- not being in evidence, and it's obvious from the 2 record what happened. He interjected this as he's 3 interjected a million other things before, and it's outside 4 the parameter of the question that was asked of him involving 5 having to gone back and involves a conference at the bench. 6 It's just killing time. Your objection is overruled. 7 MR. HEINEMAN: Your Honor, all right, as long as -- 8 THE COURT: The objection is overruled. 9 MR. HEINEMAN: It's clear that I'm making the 10 objection, and the Court's overruling my objection. 11 THE COURT: It is. 12 (The following p r o c e e d i n g s w e r e had in open Court.) 13 Q. Doctor do you think w h e n I a s k e d you that last 14 question that I asked your opin i o n as to w h e t h e r or not it 15 was true or not? Doctor, are you listening to me? 16 A. Yes, I a m listening, sir. 17 Q. Would you answer m y q u e s tion? 18 A. I'm thinking, sir. 19 Q. Sir? 20 A. I*m thinking. 21 Q. Can you answer m y qu e s t i o n ? 22 A. No, I don't b e l i e v e so. 23 Q. You know what I asked you was whether or not -- I 24 asked you if this is true, that's a real p r o b l e m is what I 198 1 asked you, didn't I, Doctor? 2 A. if it is true, yes, sir. 3 Q. And if it is true, it is a real problem, isn't it, 4 sir? 5 A. If it is true, sir, yes, sir. Q. You have a d v ised us earlier that you t h o ught these 7 men were truthful, didn't you,sir? w>8 A. Not in this case, sir. 9 Q. Doctor, didn't I ask you about D o n a l d S tover w h e n 10 we went through his problems and didn't y ou-- 11 A. When I examined him, sir. 12 Q. Didn't you tell me at that time that y o u t h o u g h t he 13 was truthful? | 14 A. When I examined him, yes, sir. 15 Q. Yes, that's right, sir.; 16 A. But this is a d i f f e r e n t examination, t h i s is an 17 examination -- 18 Q. Doctor, all I'm going on is y o u r jud g m e n t that Mr. 19 Stover told you the truth when he talked to you. 20 A. When he talked w i t h me I b e l i e v e d -- 21 Q. That's all I'm a s k i n g you. Yo u t h o ught he wa s a 22 truthful man, didn't you, sir? 23 A. I believe that in m o s t instances he was. 24 Q. Excuse me, Doctor, you thought he w a s a truthful 199 1 man, didn't you, sir? Didn't you, sir? 2 MR* HEINEMAN; Object. It's been asked and 3 answered. 4 THE COURT: Objection overruled. 5 A. I thought he believed he was telling me the truth. 6 Q. No, Doctor, that isn't what I've asked you. I 7 asked you you told me that he was a truthful man in you're 8 judgment, you said that in the Federal Court at Nitro as 9 well, did you not, at Charleston, didn't you, sir? 10 A. What is the last question? 11 Q. M y question is, Doctor, did you not -- 12 A. What was the last part of the last question? 13 THE COURT: Excuse me, Doctor, he's reasking the 14 question for your benefit. Please listen. 15 Q. Did you not testify that you thought Mr. Stover was 16 a truthful man. 17 THE COURT: Doctor, please answer the question. 18 It's been asked twice. 19 A. Yes, I will, sir. 20 Q. Doctor, you're looking through your notes. Have 21 you made notations on what you've testified to earlier? 22 A. I made notations, sir, on the records that I have 23 of Mr. Stover. 24 Q. Are you no w looking to see if you tes t i f i e d in this 200 1 case that he was truthful? 2 A. No, I'm not doing that. 3 Q. My quest i o n refers, Doctor, to whether or not you 4 told you this jury that you think the man is truthful or was 5 truthful when you saw him. 6 MR. HEINEMAN: Objection, your Honor. I thought the 7 reference was to the Nitro testimony? 8 A. You asked me about Nitro, and that's w hy I asked 9 about the question, cause I didn't testify about Stover. 10 THE COURT: Objection is overruled. Ask the 11 question again please. 12 Q. Because it gave you problems, Doctor, I w i t h d r e w 13 the Nitro question, I rephrased the question. 14 A. I didn't hear you w i t h d r a w it, sir. 15 Q. Doctor, did you hear my question? Di d n ' t you 16 testify here that Mr. Stover is a truthful man? 17 A. I believe I said that he was in most instances 18 truthful, yes. 19 Q. Now, Doctor, he was also found by the exami n a t i o n 20 of this doctor to have one plus reflexes, didn't he, sir? 21 A. One plus reflexes where, sir? 22 Q. At the ankle. 23 A. Yes, sir. 24 Q. And we don't need to go through that again to show 201 1 what that would indicate, do we, sir? 2 A. No, sir, we do not. 3 Q. Doctor, you had no line on what the four plus, is 4 but there is four plus on abdominals, and we don't need to go 5 through on what four plus means, do we, sir? 6 A. I don't believe we do any longer, sis. 7 Q. Doctor, he ended up with a diagnosis, did he not, 8 that of severe psyc h o neurosis, that is, Dr. Nestmann's 9 diagnosis was among others severe psychoneurosis? 10 A. Correct, that was a Nestmann diagnosis, sir. 11 Q. Yes. Doctor, w i t h regard to Mr. Saxton, w h o m you 12 have seen before, he was seen in 1956, wasn't he, sir, March 13 15-- could be May 15 -- it looks like March 15, 1956, is 14 that correct, sir? 15 A. It looks like M a r c h 15, 1956, sir. 16 Q. His chief complaints to Dr. Nestmann at that time 17 was he feels weak and run d o w n short-winded frequently, back 18 bothers him when he does heavy work, correct, sir? 19 A. That's what he said, sir. 20 Q. Doctor, he also said to the doctor that he had 21 seen, that he's had that weak and run down feeling for about 22 four years, stays the same, didn't he, sir? You see that, 23 Doctor, the first sentence, weakness and run d o w n f e e ling for 24 about four years and stays about the same? 202 1 A. Yes, I do, sir. 2 Q . Doctor, tha t ' s cer t a i n l y -- four years from '56 3 would be 1952, wouldn't it, sir? 4 A. Yes, sir. 5 Q. That's a problem that would give him great concern, 6 w o u l d n 1t it, sir? 7 A. Yes. 8 Q . And he went to at least ten doctors, and Dr. O'Dell 9 -- Dr- O'Dell, by the way, seeing these men along with Dr. 10 Nestraann in behalf of the company, isn't he, sir? 11 A. ' I don't know hov; these were done. 12 Q - You don't k n o w that? 13 A. No. 14 Q . I 'm sorry? 15 A. I don't k n o w ho w these were done, whet h e r O'Dell 16 did examinations for the company or the commission* I have 17 no idea, sir, but a p p a r e n t l y in this i n s t a n c e -- 18 Q. Doctor, you read the reports, he's not part of the 19 commission examining board, is he, sir? He's a Monsanto paid 20 examiner, isn't he, sir? 21 A. He's a p h y s i c i a n wh o examined. 22 Q. For Monsanto? 23 A. At the request of Monsanto. 24 Q Yes. Now, Doctor, he was told by Dr. O'Dell that 203 1 his trouble was too much coffee, correct, sir7 2 A. That is what this records says, sir, 3 Q. Doctor, he also de s c r i b e s the s h o r t w i n d e d n e s s that 4 began four years ago, he also describes the back problem that 5 started five years ago, and describes heavy work causes him 6 discomfort, however, all heavy work will not do it, gets pain 7 lasting 10 to 35 minutes, correct, sir? 8 MR. HEIN E M A N : Objection, Your Honor. May counsel 9 approach the bench? 10 THE COURT: Yes, you may. 11 (At this time a co n f e r e n c e wa s had at the b e n c h out 12 of the hearing of the jury.) 13 MR. HEINEMAN: I object to Mr. Carr paraphrasing 14 this document. He reads something like the first three wor d s 15 of a sentence where the g u y says he's got a p r o b l e m and then 16 leaves off the part where it says but it's less freq u e n t now 17 or it's gone away or something like that. I object to him 18 reading in snips and snags from this thing, and if he's going 19 to read it to the doctor, then he ought to read it to him,and 20 I object to the paraphrasing. 21 MR. CARR: Your Honor, the doctor has the report, 22 each juror has the report, and I'm trying to move the 23 examination along. 24 THE COURT: The jury does have the report. Your 204 1 objection is overruled. 2 (The following proceedings were had in open Court.) 3 Q. Doctor, he had these co m p l a i n t s that he made to Dr. 4 Nestmann, did he not, sir? 5 A. Yes. 6 Q. Doctor, he also stated that his right leg feels 7 numb at times, correct, sir? You see that, sir, under the 8 words, following the words system review, right leg feels 9 numb at times, feels like -- 10 A. Yes, I see that, sir. 11 Q. Doctor, he also has had his reflexes t e sted by Dr. 12 Nestmann as shown on the next page, has he not, sir? 13 A. Yes. 14 Q. All of his deep tendon reflexes ar e all one plus. 15 aren't they, sir? Doctor, you see that? 16 A. That's correct, sir. 17 Q. Knee jerks, ankles jerks, b i ceps an d t r i c e p s are 18 all one plus? 19 A. That's correct, sir. 20 Q. And again we've a greed on w h a t one p l u s means, have 21 we not. sir? 22 A. I'm not sure, but we'll leave that as it'is, sir. 23 Q. Doctor, he was found b y d octor not to be psychoneurotic, did he not, sir, he found that there was 205 1 psychoneurosis p r e s e n t -- no, he said it w a s not a p p a r e n t 2 there was psychoneurosis present, isn't that right, sir? 3 A. That is a statement which Dr. Nestraann made. 4 Q. Doctor, the -- 5 A. The diagnosis is there, too. 6 Q. Doctor, the next p erson exam i n e d is a H a n i n g -- 7 Vaning, I can't make that out. In any event, it's an 8 employee of Monsanto, is it not, sir, oth e r w i s e it w o u l d n ' t 9 be given to me. 10 A. I don't know, sir, I can't read it either. 11 Q. Doctor, this person, wh o ma y be H a n i n g H - A - N -- 12 there was a Haning, wasn't there, sir, you saw a Haning, did 13 you not, sir? 14 A. I examined a Haning in 1956 at the c o m m i s s i o n 15 hearing. 16 Q. I'm sorry? 17 A. At the co m m i s s i o n hearing. 18 Q- And this is an employee -- 19 A. I don't know whether it's the same Haning, but I-- 20 Q. It may not be, but at any rate it is a Haning, 21 isn't it, sir? 22 A. Yes, sir. 23 Q. Mr. Haning has legs that b o t h e r h i m a lot, knees 24 ache, feet and ankles, something, I can't make that out. 206 1 ankles ache, feet and ankles ache, is that right, sir? 2 A. I believe that might be the -- 3 Q. He has b o t t o m of feet that are always -- oh, no, 4 bottom of feet stay numb all the time? 5 A. That's what this reads, sir I, believe. 6 Q. Doctor, there is certainly on these men seen by Dr. 7 Nestmann there's a lot of similar problems related, aren't 8 there, sir? 9 A. They sound similar, sir. 10 Q. His eyes bother him, he's seeing Dr. Breisacher as 11 well, is he not? 12 A. According to this record, yes, sir. 13 Q. He's also had sexual problems getting erections for 14 four or five years, he has the desire, but he has no ability 15 to perform, isn't that correct, sir, is that what he says? 16 A. He claims that, sir, yes* 17 Q. Doctor, you emphasize the word claims as if you 18 don't believe this man. Do you believe he's lying, sir? 19 A. I don't know, sir. 20 Q. Well then -- 21 A. I didn't take the history, sir. 22 Q. All right, Doctor. Then this is w h a t he states, he 23 doesn't put it in the form of a claim, it's a complaint of 24 his, isn't it, sir? 207 X A. It's the same, sir. 2 Q. Doctor, you think a complaint is the same thing as 3 a claim? 4 A. It's one of the -- the two words are used often 5 synonomously by doctors taking a history, sir. 6 Q. Doctor, w h e n some b o d y says they c l a i m something, 7 you ordinarily mean that it's not necessarily true? 8 A. Not necessarily so. 9 Q. Isn't that the wa y it's interpreted? I c l a i m -- 10 A. Neither is a complaint, sir. 11 Q. T hese are d e s c r i b e d -- 12 A. Neither is a complaint, sir. 13 Q. Doctor, these are described as chief co m p l a i n t s and 14 not as chief claims, a ren't they, sir? 15 A. The y are, and it's the same thing, sir. 16 Q. Doctor, you think a complaint and a c l a i m is the 17 same? 18 A. In the parlance of a physician, yes, sir. 19 Q. Doctor, wh y is it that I never read reports whe r e 20 they say chief claims? T h e y always say chief c o mplaints or 21 complaints. 22 A. You will see, however, that the patients m a y -- in 23 the doctor's record the patient claims that, it's a very 24 common usage, sir 208 1 Q. But this m a n isn't described as claiming this, is 2 he, sir? He's described by the doctor-- 3 A. It's the same thing, sir, 4 Q. Excuse me, Doctor, he's described by the doctor as 5 making these complaints, isn't he, sir? 6 A. C o r r e c t , s i r . 7 Q. He also says he doesn't feel good at any time, 8 doesn't he, sir? 9 A. That what ' s he's complaining about. 10 Q. Doctor, this p r o b l e m that this man has had of not 11 feeling good at any time, do you think that that just might 12 interfere w i t h his e v ery day enjoyment of life, take the edge 13 off of enjoyment? 14 A. I have no idea. 15 Q- If it's true, Doctor, don't you have an idea? 16 A, I have no idea, sir. 17 Q. Doctor, you mean to say that you don't have an idea 18 that, if a p e rson goes a r o u n d not feeling good at any time, 19 that that would d e t r a c t f r o m his abil i t y or from his 20 enjoyment of life? You do have an idea of that, don't you. 21 sir? You're just telling us that you say you have no idea. 22 In point of fact you d o h ave an idea, don't you, sir? 23 A. If this is true, sir. 24 Q. Yeah, th a t ' s right, sir, if it is true, it does 209 1 take the edge out of the enjoyment of life, doesn't itf sir? 2 A. It's a big a s s u m p t i o n and if it's true, sir. 3 Q. Doctor, I d idn't ask you is it a big a s sumption or 4 a small assumption. X asked you if this man is telling the ' 5 truth, if this is true, that takes the edge out of the 6 enjoyment of life, d o e s n ' t it, sir? 7 A. If it is true, it should, yes, sir. 8 Q. Doctor, the man also tes t i f i e d as to w h e n he 9 started or rather described to the doctor as when he started 10 having the aches and pains, isn't that right, sir? He says 11 that the aches and p a ins w e r e w orse then, that is, shortly 12 after the accident, but they are now more areas involved, 13 isn't that right, sir? Do you see that, sir? You do see 14 that, don't you, Dr. Suskind? 15 A. No, sir, I do not. I see his past history. 16 Q. Sir? 17 A. His past h i s t o r y is, X believe, prov i d e s a clue as 18 to some of the problems that he has, sir. 19 Q. Doctor, d o n ' t you read as I ' m reading that the 20 pains were worse then, but there are m o r e areas involved 21 now? Are you on the same page that I'm on, Doctor? 22 A. I m a y not be, sir. W h a t page a r e you on? 23 Q. I'm on the first page of the report of Dr. Nestmann 24 referring to Mr. Haning, in the first full paragraph under 210 I 1 the part that says chief complaints in the paragraph called 2 present illness. Are you there, sir? 3 A. Yes, sir. 4 Q. And it does say as X have read, d o e s n ' t it, sir? 5 A. What paragraph are you reading from, second? 6 Seriously, I'm not following you, sir. 7 Q. Doctor, aren't you listening to m y q u e s t i o n s ? 8 A. Yes, I am, sir, but I'm not able to follow y ou on 9 this page,sir. 10 Q. Doctor, what you're doing is y o u're reading ahead 11 and trying to anticipate a problem, aren't you, sir, rather 12 than a question? 13 A. No, I'm not, no, I'm just looking for your 14 quotation, sir. 15 Q. Doctor, do you recall I just a s k e d you a b o u t he 16 does not feel good at any time? 17 A. I see that, sir. 18 Q. I went right to the next paragraph. You see that, 19 Doctor? 20 A. Right. 21 Q. And I asked you then it describes pains that were 22 worse s h o rtly after the accident, but no w t h e r e are m o r e 23 areas involved. Isn't that there, sir? 24 A. No, I read it a little differently, sir. 211 1 Q. Well, how do you read it, Doctor? 2 A. The sentence that you're referring to the pains 3 were worse then. 4 Q. Yes. 5 A. But there are more areas involved now. 6 Q. That's exactly what I said. 7 A. I don't know what he means by then, w h e t h e r it's 8 two weeks, four weeks after the accident or a month after the 9 accident or two months after the accident. It's a little 10 difficult to tell from this description, sir. 11 Q. Doctor, he's describing the aches and p a ins that he 12 had in a period of time close to the accident, isn't he, sir? 13 A. Yes, I believe so. 14 Q. Yes. And he tells you that the p a i n s w e r e w o rse 15 then, doesn't he, sir, in that period of time? 16 A. That's what he said, yes. 17 Q. But now there are more areas involved, c o r r e c t , s i r ? 18 A. Yes, sir, that's what he said. 19 Q. Now at the present time. Doctor, he d e s c r i b e s the 20 w o r r i e s about his knees and hip, and his kne e s w o r r y h i m at* 21 night and his right hip feels insecure w h i l e he walks, isn't 22 that correct, sir? 23 A. That's true, sir. 24 THE COURT: Gentlemen, could you a p proach the bench 212 1 for a minute please? 2 (At this time a conference was had at the b e n c h out 3 of the hearing of the jury.) 4 THE COURT: Is this a good point to b r e a k ? I t 1s 5 about quarter till? I want a report in the morning on the 6 production we talked about earlier. We'll break now and 7 start tomorrow morning. 8 MR. CARR: Your Honor, if they have some of these 9 records in their office I'd like to have them this evening. 10 THE COURT: That's right. 11 (The following proceedings w e r e had in open Court.) 12 THE COURT: Ladies and gentlemen, w e ' r e going to 13 break for the day at this time. We'll resume tomorrow 14 morning at 9:30. I would remind you as I do on a n y overnight 15 break besides the regular admonishments that I've given you 16 during the day that you're not to read, listen to, or w a t c h 17 anything about this case in particular or subject matter in 18 general in any of the media. Thank you for y o u r a t t e n t i o n 19 and cooperation. Court's adjourned. 20 21 22 23 24 213 1 STATE OF ILLINOIS ) ) SS. 2 COUNTY OF ST. CLAIR ) 3 4 I, M A RSHA SCHNIPPER, certify the foregoing to be a 5 true and accurate transcript of the testimony and proceedings 6 in the above-entitled cause. 7 Dated this 0 3av of March, 1986. 8 9 10 11 12 a13 ^f\(\ (1A j q Q n~s 14 15 16 17 18 19 20 21 22 23 24