Document ymQa3jYMBp02zGVw5BR00axw6

] 121 THE CIRCUIT COURT OP THE TWENTIETH JUDICIAL CIRCUIT * ST. CLAIR COUNT*, ILLINOIS 1 PRANCES E. KEMNER, ET AL, A Plaintiffs, 5 vs 6 MONSANTO COMPANY, I ! 7 Defendant NO. 80-L-970 91 10 REPORT OP PROCEEDINGS 11' July 22, 1985 12 n 14 Before the HONORABLE RICHARD P. GQLDENHSRSH,* Circuit Judge 15 I 16 APPEARANCES: IT Mr. REE CARR and MR. JEROME SEIGPREID, Attorneys at 13 Lav, on Behalf of the Plaintiffs; and 19, MR KENNETH HSINEMAN and MR. JOSEPH NASSIP on Behalf of the Defendant, Monsanto Company. :o 21 23 l Kathleen Watson Brunamann 24 Official Court. Reporter I IHiSEX Or WITNESSES Called on baiialr of the Plaintiffs: DR. JZQRli ROUSH Clarification Examination (Sy Mr. HainemanJ..... 2 INDEX OF EXHIBITS PLAINTIVE'S EX. N O . MARKED VOR IDENTIFICATION ADMITTED INTO EVIDENCE 1312 52 MONSANTO'S- EX. NO. 910 91 1 5J 55 BX IT RRMEMBERBD AND CERTIFIED, that heretofore, on to-witi July 22, 1985, the matter as hereinbefore sat forth cama an far hearing bafora tha Honorabla Richard p. Goldanhersh, Circuit Judge in and for tha Twentieth Judicial Circuit, and tha following was had of racord, to-witi (Tha clarification examination of Dr* George Roush by Mr. Heinaaan contlnuad as follows!) (Tha following procaadlngs vara had in chambers, out of tha prasanca and haarlng of tha jury2 ) MR. CARRj Judga, there's baan soma dlsputa on the racord as to whether or not tha rafaranca ranges that va have used for porphyrins and for tha creatinines are tha normal rafaranca rangas that have baan given by tha labora tory. And there was dispute as to whether or not I had ever asked for them, or what they ware, what these ware that had been given to me. I checked tha records, and on April the 15th, 1985 I had just baan delivered the day before tha pile of material dealing with tha Krusuarich Health Study, tha madl cal records. I had had an opportunity to briefly scan I1 !' I r i 3 4 5 l 6 7 8 9 10 11 i: ui 14 15 I 16 17 i 18i 19 20 i 21 22:1 23: ( 24' l the laboratory results and discoverad that there ware no I I noritlx tor tha porphyrins at that tima. And tha Court will not, on April tha 15th/ 1935, on page 107, I asked that they giva ma the normal ranges used. That was on a weekend* And the following Monday, 1 guess it was, at any rata a few days later, on the 22nd of April, 1985 they did, Indeed, !s j i | i produce these exhibits, 3846, 47 and 48, which deal with the porphyrins and the creatinine levels. i Now, unless Counsel stipulate that the sequence of events, and that these were furnished to me in respoase to ay request made on April the 15th, I want to make an i 1 additional record by putting Mr. Hassid on the stand to confirm that this is the sequence of events, and that these test ranges given me, 3846, 3847, 3348, were given to me in response to that request for the normal reference ranges. TBS COURT: First of all, is there any dispute as to that? I think that was the first point, wasn't it? MR. CARR: Yes If there is no dispute, then Z think it's Exhibit 1509 that can be no challenge as to the ; authenticity of that They may not have challenged it, but X don't think they have admitted in court at least that these were the Metpath Test Ranges for the porphyrins that were given to me, and for the creatinines that were given to me in response to my request. 3 I MR. HEINZMAN: I am trying to recall in my own ' m mind, Judge, the occasion when this first came up in the 3 testimony or Dr. Roush. X may be incorrect, but X think my 4 recollection is that Mr. Carr asked Dr. Roush whether those 5 documents were, in fact, the normal reference ranges. And 6 X think at the same time, perhaps, may have represented that 7 they were furnished by Monsanto's attorneys for something 8 to that affect. My recollection is that Dr. Roush said that 9 they were, indeed, the normal reference ranges. Didn't he? 10 MR. CARRi Yes. But you objected to their M authenticity. You said you didn't -- and X had on the copy 12 that had been put into evidence, X had written on it "tfltro 13 normal," or "Suskind Laboratory," because it was, in fact, 14 the same. As X learned from Carnow and Conibear, it was 15 the same reference ranges used in the Suskind Morbidity 16 Study for Nitro. And you challenged that at that time on 17 the record in front of the jury. You said, "Why these don't 18 even refer to Xruamrich," or something of the sort, "These 19 are the Mltro." I represented then to you that these 20 were the normal reference ranges given to me in the 21 Kruxnmrich. You again expressed a doubt, or X'm sure objected 22 on the record to the use of these values. Xf you didn't 23 object on the record, then there is no problem. 24 THE COURT: Well, okay. There was an objection 1 on the record. These were admitted* 1509 was admitted on T m July 16th, and my notes have they were admitted over objec 3 tion. 4 MR. HZXNEMAN: If we're talking about -- I'm 5 not sure that we're talking about the same occasion. 6 THE COURT: This is when they were first used i 7 on the 16th. i is MR. HEINEMAHt All right. \ 9 THE COURT: I have in my notes that they were IP admitted over objection at the time. 11 HR. HZXH2MAN: You don't have in your notes 12I what the objection was? 13 THE COURT: I don't. 1 14 MR. HZINEMAH: I don't know. Was the objection IS only that his handwriting was on them, and they said "Nitro?|" 16 HR. CARR: The objection was that these were I 17 not connected, these were not shown to be the normal IS reference ranges, and you weren't going to take any represen i 19 tation that they were. I represented to the Court that they 20, were produced to me, and your objection was to their autherit 21 or that they were, in fact, the normal test ranges. You're 22 not making that objection now. There's no problem. 23 All I want is on the record a statement from you that these 24' were the normal test range values given to me by you in / I response to my request of April the 15th, and that these are ! I 1 the noraal test ranges that were used in the laboratory m 3 reports that ve have in evidence in this case, referring to the Krumarich Health Study. '4 THE COURT] My notes do indicate that you, Mr. 5 6 Carr, indicated that these were produced in response to an order of court. 1 don't have noted down what the specific 7 a objection was. MR. HZIHSMAHi Do you know whether Or. -- whether 9 he asked Or. Roush about it right at that point? Because 10 I have a recollection, maybe incorrect, that Roush said# 11 V "Yes, these, indeed, are the noraal reference ranges for por> 12 i 13 phyrins from Metpath." uj MR. CARRi He has testified on the rscord that 15' these are the normal test ranges used at Metpath. That is not my quarrel. I have him on the record three or four 16 17' times in which he agreed that these were the normal test IS' ranges. That's not the equivalent to a stipulation by you that they are, or that by an agreement by you. Because you >i 20 made the objection on the record that you don't know the 21 authenticity of them, and you challenged them, and you -J'l objected to them, and Z want it clear on the record from mm 23 : Counsel that what I represented was correct, that these 24 were produced by you in response to my demand or request ( ] fax these normal values, normal test ranges, - THE COURTi Whatever position you took than, do you have any objection to that now? Let1a put it that way. MR. KEINEMAH: First, I want to read the transcript hare. TEE COURT: Sure, go ahead. MR. HEXMZMAN: Of the in-chambers conference. Then I will need to ask Joe Massif if they, indeed, are the same ones that were produced. MR. CARR: Jesus, Ken, you can see the minbexs on the receipt, and the numbers -- well, never mind. Toe do whatever you need to do. MR. HEINEMAN: Oh, there's a receipt here? Okay. THE COURT: That's just before the actual documents. MR. HEXNEMAN: Well, from the receipt they obivously are the same documents that were produced. THE COURT: Fine. MR. CARR: Well, are you stipulating and agreeing that exhibit 1509 represents the normal test range values as shown for those three urine specimens, whatever they .are, for the Krummrich Health Study? MR. EEINEMAN : What X would stipulate to is that these three documents, which I don't remember exactly i .i what comprised 1509 -- THE COURT: Those three documents. MR* HSIHZMAMx These three document* art 12097 THS COURTl YS. MR HSIHSHAN: But i these act 1209, that these thrtt documents demonstrating that Metpath'a normal reference ranga art for aicrograms par twenty*four hour sample art, indeed, the normal rtftctnct range that Metpath uaed. MR CARR: Well, X want acre than that X want that thaaa were given to at in ay response for the value -- asking for the value, normal values given for the porphyrin. MR HEIN2MAN: X am sure, a I sit here, that these documents were provided to Mr. Carr in response to the request that is set forth in this transcript. MR. CARRx Then that's all X want. THS COURT: Fine. Great. Okay, we'll start in a couple of minutes MR. NASSXF: I remember a request from Mr. Carr for the Metpath reference ranges, and to my recollection those three documents were produced in response to that request 8 THE COURTj Okay, gentleman We'll start in a couple of minutes. Thank you. HR. CARR: Yes, your Honor. . (The following proceedings were had in the presence and hearing of the jurys) GEORGE ROUSH, hawing previously been called as a witness under Section 2-1102, having previously been sworn, continued clarification examination .as followst. EXAMINATION BY HR. HEINEMANI THE COURT: Good morning, ladies and gentlemen. I apologise for starting a little bit late. As I've told you before, you've heard this many times, there are certain matters that have to be taken up in chambers, outside the presence of the jury. We had one of those this morning, and I believe we've resolved it. So we're ready to proceed. Mr. Heineman. Q (By Hr. Heineman) Yes. Dr. Roush, on Thursday, when we closed court at the end of the day, we had begun discussing the Zack-Suskind-Study> had we not, sir? ." I A Yes, sir. j i Q And I'd like to hand you a copy of that study 1! 3 as it's been previously marked as Monsanto Exhibit Number 4 62, and I'd like to ask you some questions about it, sir. 5 Now, as.I understand it, sir, the only way that those who 6 could have been exposed to the clean-up of the '49 accident 7 could be determined was through the chloracne records; is 8 that right? 9 A Yes, sir. 10 Q Nov, as a matter of fact, the paper states, does ir it not, that it's subject is the chronic health effects to 12 exposure to TCDD as reflected in the mortality experience of 13;i a cohort of Monsanto Company workers who developed symptoms 14 of chloracne following a trichlorophenol process accident 15' at the Nltro, West Virginia plant in 1949? I 16 A Yes, sir. 1?, 2 And if you'dlook atthe lastparagraph in the 18 right column on the first page of Exhibit 2, would you read 19 that first sentence, please, to the jury. 20. A *Employees whoworked in thearea of TCP 21 i production or were involved in the clean--up began to develop 22 , symptoms immediately following exposure to the material 23 which was discharged from the autoclave." 24 t Q Thank you. And then it goes on to discuss theset symptoms; correct, air? | A Yes, air. 0 And would you tell us what it says the symptoms were. A Should 1 rsad them or just tall you7 Q Well, pitas rtad that. A "Symptoms included aya and raspiratory tract irritation, headache, dirriness and nauaea, and a aarara irritant raaction of the expceed shin" Q Then it goes on to discuss the sysptoaLS subsiding; does it not, sir? Would you read that next portion? A "After these initial symptoms subsided, the chloracne and other symptoms became evident." Q Now, what it appears to be discussed there, sir/ " is an acute exposure with acute symptoms;is that right? A Yes. As a matter of fact; the ismediate reaction following that autoclave discharge was manifests- ticns of irritant and thought to be due to the caustic content of the material that came out, not due to the TC -- MR. CARR* Your Honor, I object unless the witness is testifying from his own knowledge. If he's not, he should identify the source of his knowledge. It appears as if he's stating something as a fact. THE COURTi Objection is sustained. Could you 11 r 1 J 4 5 1 6 7 8 9 10 ' 11 12 i 13 15 l 16 17 i 18 120 21 '24 rephrase the question so that matter Is cleared up. Q (By Mr. Heineman) Doctor, Dr. Roush, with respect to the acute nature of the symptoms that arose and of the exposure, how does that relate to the fact that the study is talking about results after a long period of time? MR CARR: Your Honor, Counsel isn't going to rephrase that question, I ask that the jury be instructed to disregard what the doctor said. TEE COURT: Objection is sustained. The jury is to disregard. TH2 WITNESS: I'm sorry. Would you repeat the question? I'm not sura how it related -- TEE COURT: Could you read back the question please. (Question read.) THE WITNESS: Well, these workers did have acute reaction immediately following the release, but those symptoms subsided quite rapidly, and then after a period of days to months they developed a skin reaction quite different than the irritant reaction, and that when it came on over a period of days to a month or more was called chloracne. So that identified group was based on the identification of the chloracne or the skin reaction. Q (By Mr. Heineman) Now, was it possible in 1979 I1 I or 1977 when this study -- whan you began working on this l study, is it possible at that time to determine all of the J people who were.exposed in the 1949 accident? 4 MR. CARR: Your Honor, first 1 would object. 5i Counsel hasn't established that this witness has that 6 knowledge, of his own knowledge, or if he's referring to 7 this exhibit, whether or not this exhibit says that it's 8 possible. It's not clear what he's referring to. Is he t 9i referring to the witness1 own knowledge? If so, if he 10 hasn't established that the witness has such knowledge. I 11 MR. H2IHEMAN: Well, your Honor, I'd like to .. 12 establish Dr. Roush testifying on behalf of information that U, was developed by people working under him. i 14 , I MR. CARRi Well, I object to that, your Honor. I 15 i If he's going to refer to this study, refer to this study. 16 , If he's referring to some hearsay documents, or hearsay in 17 formation, that should be here so I can cross examine and 18 1 determine the authenticity of it. 19 , THE COURT: I'm sustaining the objection. Would 20 you rephrase the question? 21 Q (By Mr. Heineman) Doctor, do you have personal 22 ' knowledge with respect to the way in which, or the effort 2J that was undertaken to try to determine a cohort for this 24 study that's reflected in Defendant's Exhibit 62? I A Yes, sir. J Q All right. Mow, would you tell us pleas what 3 was done to try to determine the people who wr exposed? 4 Was there any way to determine all of the people that were 'J exposed in that 1949 incident? '6 MR. CARR: Your Honor/ I object to that. That's 7 tvo questions. First of all, what was done? I think he 8 has to establish that. 9 TH2 COURT: You can answer both of them in 10 sequence. II THE WITMZSS: In an attempt to identify those 12 who had been involved in that accident/ they attempted to 13 l find whether there's records available on work records that M would identify who had been working in that accident, and 15 they were unable to do so. The other approach to deciding 16 who was exposed is to determine those who had chloracne. 17 Dr. Suskind sent me the first group of people he knew were 18 exposed* and there were about fifty of them, fifty to 19 fifty-three, as I recall. Then we went back, and to add on 20 to that population who had chloracna, we went and got a 21 copy of Mr. Voir'a files in which he listed those that were n m m on the Workmen's Compensation list. In addition to that, we i 23 checked with Workmen's Comp, and verified those names that 24 obviously had chloracne. So what we have then is a list of i \ I people who were identified by Dr. Suskind, by those who (2 came in from d Volz, and then the Workmen's Compensation files. And that constituted what they called the chioracne i 4 group. That means that there could have been some people 5 who were there who had chloracne that was so mild that it 6 was not included, because a decision of who had chloracne 7 was made by the doctor. They cross-checked the medical 3 records, but it still wasn't clear if a man had a blackhead 9 whether the physician thought that was chloracne or not. 10 So we were unable to determine those who did not have 11 chloracne and who were involved in the clean-up. We believe j 12 that we picked most of them who had significant chloracne 13 by t^:e method used. 14< Q (3y Mr. Heineman) Now, when you say you had 13 access to Or. Suskind's files, now Or. Suskind had indeed 16: examined a number of these people back at the time of the i 17 incident, and subsequently? IS; A Yes. 19 Q So he had files withrespect topeople who were 20 his own patients? l 21 A Yes, sir. n mm Q And these wereemployees involved in the 23 incident? 24 A Right i A 1 Q `.v'Than you said something about Ed Volz1* fires. J A .''Right- * 3 \Q How Ed vaa the Safety Director of the,plant? 4 A Yas, ha was 5 Q And ha leapt trade of thoaa people who had 6 filad Workmen's Compensation claims? 7 A That's right But ha also had a responsibility 8 to-keep that list up-to-date for tha plant manager. Tha 9 plant'manager wantad a ragular raport of how auch chloraena 10 thara was M Q So ha kapt a racord of who had chloraena? 12 A Yas, sir 13 Q . And. than you said you want to Worker's Compensa 14 tion files? 15 A Yas 16 tQ Hart those kapt .by Monsanto or by tha State? 17 A By tha State. IS Q . State of West Virginia? 19 A Yes. v 20 Q And from those, three sources you compiled tha \ 21 group of who had chloraena and who did not? 2" MR CARRt ..Your* Honor, I object as to who had i 23 chloraena, not who ware exposed and did not have chloraena. 24 ' MR HSINEMAHi I'm sorry, I misspoke. i MR. CARRt Yes, you did Q (By Mr. Heineman) You had the list of who had chiorsen? A Yes, sir. Q Those Wara tha people vho vara followed In this study? A They became what va call tha cohort. Tha population that va could study. Q Nov, I want to gat to tha dlffaranca, sir, batvaan an acuta exposure and a chronic exposure Paopla that wars tha subject of this study, what sort of exposure did they have? A These paopla vho developed this chloraene at that time vara related to tha episode in which there was a large discharge of tha 2, 3, 7 TCDD. Q So which would that be? Would that be an acute or chronic? A An acuta exposure, g That would be an acute exposure? A Right. g Something that takes place over relatively short period of time? A Yes, sir. g IThere's a statementthat want to direct your cI \ * 3 i 4 J 6 I I 7' I a 9 10 \ i 11 12 1J 14 15 16 17 IS. 19 i i 20 21 22 i 23 ( 24: attention to. If I could direct your attention to the second peg of Exhibit 62, the right-hand column. There's a portion there that says "Population and Methods;" is that correct? A Yes, six. 0 At the end of that first paragraph there's a sentence that begins with the words "An analysis." Do you see that? A Yes, sir. Q Would you readthat to thejury,please. A "An analysis of the chloracnecases and exposures not associated with this accident but rather with the normal TCP/2,4,5-T production processes will be the subject of a future paper." Q Now, what is it that the authors of this document are referring to in that sentence? A This study was a study of those involved in the acuta accident. This subsequent study was to be related to what health effects were associated with the normal operation and production of TCP, and the 2, 4, 5-T at the plant over a period of time. Q So that would it be possible, sir, to describe the second group of people to be examined in a future paper, the subject of a future paper, would that be a . 13 i 1 chronic exposure that's being dealt with there? ; '1 A Well, the normal TCP/2,4,5-T production process ! 3 would involve a continuing, long-term exposure as opposed 4 to an episode 5 g All right. Now what was the second -- the 6 second one is the Zack-Gaffey Study? is it not, sir? 7 A Yes, sir. 8 Q Now, what is the difference between the two? 9 What are the two separate studies accoaplishing? 10 A Well, the first study ves a concern for the 11 possibility that those workers involved in this accident 12 in which there were people who were quite ill. They were 13 sick. Four of them were hoepitalized at the University M of Clncinati, some hundred miles away from Nitxo, West 15 Virginia, for a study in depth. So these workers had 16 significant exposure. And the question was for these 17 hundred and twenty-two people identified with exposure, that IS heavy exposure had any adverse affect on their mortality 19 experience 20 g All right. Now how does that differentiate 21 from the second one? 22 A The second study took those workers who had 23 been working at the plant for a period of about twenty years 24 or during that twenty years, and had exposure to continuing 1 I over moat of this time, or at least up until 1969, and the I question was at the* lover level* of exposure, but over i I I3 thia long period of time, did that have any affect on their ' 4 mortality experience* 1 Q Now, it may veil be that there were some people \ in the second study who were also exposed in the first one? A Yes, sir* 3 Q And there may beseme people in thefirst one 9 who were not involved in the second one because they weren't 10 involved in the subsequent 2,4,5,T production; is that right? 11 A Yes, sir* 12 Q One was forchronicexposure, one was for acute 13 exposure? \ 14 A Yes. IS Q Now, with respect to the Zack-Gaffey Study, sir, 16 does that study purport to say -- 17 KR. CARR2 Your Honor, I object to the leading IS form of the question* I haven't objected to now, but I do I 19 object now. :o( THS COURTS Rephrase it, please* I believe it 21' is leading* 22 Q (By Mr. Heineman) All right. What, if anything 23^ sir, does that study say with respect to whether or not 24 anybody who was the subject of it -- strike that* Let me \ 1 i [  U r t over Again, hat does that study purport to say, if anything, sir, aoout whether anybody who wa3 listed as not exposed in the Gaffey Study had ever been exposed to TCDD in the past? A It didn't address that question* The study was simply a comparison of the mortality experience of those involved either in the regular operation, on a regular basis or a year at least who had their job was making the TCP, or making 2,4,5-T, and they want to know whether they had -- what their mortality experience was. And for comparison the comparison craw was the rest of the plant. And the rest of the plant could include those who were not assigned to that unit, but were a part of the whole work force. *j Now, sir -- now, in dealing with these two studies, sir -- now, Mr. Carr went through with you and he said, did he not, sir, that there were four people -- this is exhibit 1462-A, sir, I want to show you. He pi^ks out four people that were exposed, listed as exposed in the trichlorophenol process accident in 1949? correct? A ?es, sir. u And then he showed you Plaintiff's Exhibit 251-a in which he stated that those same four people were included that's the wrong one. Here, we are. Here we go. I had the wrong one. r I i[i J3 4 i5 6 7 3 9 10 11 I I 12 131 I !4 ; 15, 161 17 13 19 -20 ' 21 1 n m 23 ; 24 , 1462-3, air- Keeping in mind 1462-A, H a t e d the four people, listed or had underlined four people who had been exposed in the *49 trichlorophenol process accident; correct? A Yes, sir. 0 1462-3, had underlined the same four people as being listed in the not exposed to 2,4,5-T table from the Zack-Gaffey Study. A Yea, sir. Q Is that right, sir? A Yss, sir- Q Now, how could it be, sir, that the four people who were listed as exposed in the trichlorophenol process accident could be listed as not exposed to the 2,4r5-T in the Zack-Gaffey study? A The definition of who was going t be in the Zack-Gaffey exposed group were those who were working with TC? or 2,4,5-T during the period of 1955 to 1977. And these four people were not in that cohort as I've just described that's going to be studied. They were there because they could not be identified by virtue of looking at the work records. So that while they may have been exposed to TCCD in the trichlorophenol process accident in 194.9, they were not exposed to the chronic, low-level group, or just Kt i i chronic let's just use that word -- the chronic exposure ` jin the day-t-day operation of the 2,4,5-T Department from *55 to *70? A That's right. MR. CARR: ' Your Honor/ X would object unless counsel and the witness will point out somethin? in the Zack-Caffey Study where it says this excludes anybody who was wording before 1955 in the TCP accident, in the TCP production. THE COURT: Objection sustained. MR. HEINE.MAN: 1 thin*, your Honor, I thin* the Zack-Caffey Study itself defines the cohort. MR. CARR: That's the reason I'm asking Counsel, that's the reason I'm making the objection, because I'm suggesting to you that it says nowhere that the people who were exposed before 1955 were excluded from this study. The representation that you're making to the jury is wrong. MR. HEINEMAN: Well, sir, I think the represen tation is that those were the people who were working in that department between *55 and '70. THE COURT: Okay. Objection is sustained. MR. CARR: Those weren't your words, Counsel. THE COURT: The objection directly relates to the I proposition oeing put to the witness* The objection is . i 7 * ! sustained. I'll allow you to rephrase the question, if you | i wish. 4 ^ (By Mr. Heineman) Doctor, in light of the 5 objection that Mr. Carr has made, sir# would you define the 6 cohort to the Zack-Gaffay study carefully? 7 A The cohort that was going to be studied for the I 8 effect of working with TCP# 2#4#5-T was all of those who 9 could be identified by the work records that had worked 10 with these materials# these two materials# over the period 11 i from the first time we had work records available# 1955 12 up to 1977. We could not go beyond that. 13 i Sir# that study# the attempt to identify that 14 t cohort, was begun when? 15 * About the same time# 1978, *79. 16 v' Sometime around 1978? So in 1978 you were 17' trying to go back and find out who worked inthe2,4,5-T -- 18 ` let's see -- the 2,4,5#-T, TCP production process? 19 A Right. 20 Q And as of that date the only work records you had 21 began in 1955? 77 mm A That's right. 23 Mow there were people, were there not, who were 34 at work in 1955, in that process# who may have been at work 24 / / in that process before 1955; isn't that right? A Yea. 0 And had they been at work for a year/ a year or more after 1955, they would be included in the cohort? A That'a right. Q In addition to that, air, were there people, or do you know whether there were people who were not working with the company in 1955 who may have been exposed in that process prior to 1955 and whoa you -- could you identify people of that kind? A NO. Q So there may have been people who had previously worked in the process but as to whom you did not have work records prior to 1955? ,A That's right. Q How, what Mr. Carr sought to have youdo was ! to take the people from 19 -- from the 1949 incident that | had cancer and add them to the people in the Zack-Gaffey Study; is that right? A Yes, sir. Q All right. How, can you do that? A What do you mean by can you do that? I i i i Q Well, under theprinciples ofepidemiology, can you do that, sir7 1 A If you're trying to combine what we thought was | the affacta of an acute exposure, plus those from a chronic exposure, and think of then at the sane tine, you can* Q All right. But under what circumstances do you have to do it7 what's required in order for you to be able to do that, sir? A Well, several things* first of all, you have to make sure that your definition of those two cohorts are consistent, and that's difficult to answer, because they were defined differently* And there's subtle differences when you start talking about a cohort* You don't define a cohort after you've completed the study. Both of these studies wert done by a study group that was defined before they looked for the experience. The health experience. In other words, that hundred and twenty-two was put together and then they went back and looked to find out whether those who had left were alive or dead, that was done after the cohort is designed. Otherwise it becomes a bias study* The same thing on the Zack-Oaffey Study, that population was defined and then the mortality experience was looked at* So when you start trying to put them together, yes, you can do it. But you're not sure what you've done in terms of how you've changed the definition of the cohort, because you don't have a clear definition of the cohort you're looking at* That's 26 & I ri T ;J 4 5 '6 I 7 ,& i 9 10 II 12 13 14 15 16 17 IS 19 20 21 1 22 1 23i 24 one reason. Q You mean if you put them together? A Yes Q Because the two cohorts were put together with different things in mind; is that right? A And defined differently. Q Defined differently? A Yes. Q So if you jumble them together, you don't know what the definition of your cohort is? A That's right. Q How, in connection with anepidemiological study, you said that you defined the cohort first without regard to what the experience is. What do you mean by that, sir? A We define tiiat first cohort as those who had chloracne, and we were able to identify that population group we're going to look at as a hundred and twenty-two workers, and we took out one. The nurse was in there. Since there was one female, we dropped her out just because of the consistency. Hundred and twenty-one of them were males. The second population group was those who had worked continuously in that operation, or for at least one year during that time period of time. That's how that 27 population w a b defined Q Now, when you make the definition of the population/ at that time do you have any idea what the actual mortality experience is for that population? A No/air. Q So you define it first/ and then you find out where the chips fall? A That's right. Q And that's done in both studies? A Exactly the same. Q And you don11 maneuver them? You don't change the cohort once you find out what the mortality experience is? A No, sir. Q You've already defined what the cohort is? A That's right. 0 Nov so that while it is true to say, or it may he true to say that both groups studied could have been exposed to TCDD, that would be true/ you say? A Yes/ sir. 0 They were exposed under differentcircumstances; correct? A Yes. Q And the purpose of the studies was to find o u t ' r *,. 1 3 '4 5 6 7 3 9 ib - 11 12 13 14 13 i 16I l 17 13 19 20 21 ** I 23 24 the differing -- whether those differing circumstances produced differing mortality experiences; correct? A Yes, sir. Q Now, when Mr. Carr asked you to start adding them together, the first thing he did was ask you to name certain people and he picked them off, I think. Exhibit 1460, which was a list of everybody that was included in theVZack- Suskind Study; isn't that right? A Yes. j Q And then -- then, sir, he had you start doing some computations; didn't he? A Yes, sir. Q And what he would do is take the deaths' as to a certain type of cancer as compared to- the total number of deaths in the Zack-Caffey Study, and then have you add in the cancer deaths from the Zack-Suskind Study; correct? A Yes, sir. Q And he had you add those to the numerator and he had you add those same to the denominator; correct? A No, air. Q Now, what1a the difference? Why is it, sir? Why is.it that you can't compare them by just lumping in the* cancer deaths from the other study without any reference to the total number of deaths in that study? i A That first line up there shows that thsrs were 10.54 caasti deaths expected, and he divided it hy ths population in ths Gaffey Study, in which thsrs wsrs 58, and hs says 18.5 percent of ths deaths wsrs due to cancer. But then hs took ths -- hs took 47 -- hs took 53 and added 9 -- that1* hard to tell fro* that -- hs addsd 9 cancer dsaths froa ths xack-Suskind Study to ths population of Sack-Gaffey to cone up with 67. In other words, his population now was 47, and hs got 18.9 percent, and said hs would expect 12.4. But you can't do that. Q But, sir, hs used the 18.9 percent, which is ths result of determining how aany are expected in this population -- A Right. Q . -- correct, six? A Right. j That isn't the nuaber of expected in this population, is it? A No. He's trying tocalculate it there. Q Right. But what inaddition do you have to do, even if this 10.94 is not the expected for this created population of taking ths 9 and adding the* to 53, there's still something further wrong with it, isn't there, sir? A Yes I I Q Ok.Ay, How w4b'ft that? 2 A He ha* to chan? that population froa the 57 -- 3 ha haa to add tha total population of tha Zack-Suskind 4 Study to it 5 Q At laaat that portion of tha total population & which ia not duplicatad? 7 A That'a right. I S u In tha Zack-Caffay Study? 9 A That'* right. 10 U So you1ve got to find ou t how many total daatha 11 thara ara in tha coabiaed -- 12 A Itight. 13 Q -- group? You can't just taka tha cancers -- 14 that's lika taking tha rad applaa out of yallow and rad 15 apples, and rad applaa out of yallow and rad applaa and 16 lat'a taka thaaa rada and thasa rads, and put than over 17 hara and say aaong this bunch of applaa we've got a lot 18 oca cads* 19 A That's right. 20 Q But that doasn't show what tha total incident 21 la, doas it? 22; A That's right. 23 W You've got to taka tha yallow apples from hara 24 and bring than over with tha yallow apples from hara, don't you. air? A That'a right. Q So you're showing the number or red apple, which may be the number of people exposed to TCDD in the entire population, not just in that portion of the population; correct? A Yes* Q Now,so then..if you look atExhibitH6 4 - A here, sir, he says here that the deaths observed were 13 and not 9. A Yes* Q But he compares it with the deaths expected to the. deaths expected only from the Zack-<3affey Study popula tion; correct? A No, sir. He compared it to that recalculated one on the other page right behind it* Q All right* Back here? A Yes* That right there* That one two six* Q Twelve point six? A Twelve point six, yes. Q All right* So you calculated -- what's this, thi new expected? A Yes* 0 Now this is the new expected for this 3 'i ,1: C 2i i 3; L i 4' 1 I 5 6i t 7 ;i 9! ! 10 j. I 11 1i 12 ; 3 M 15 16 17 IS 19 20 21 I 22. I 23 . j **4 population? LJ A Year and that's not a population. II Q But what*a the new expectad for the real population which ia how many people? A Fifth-eight plus thirty-two minus four I thinic, So it'a -- it's 86 What you should do is taice that 86 times -- 13.9 if in fact the percent expected in a larger population would be the same as it was in the first popula tion and that's not correct 0 So that changes too doesn't it7 A Right. ?ou can't do that That percent expected in the Zacic-Gaffey Study was derived from a computer program which- corrects the expected by virtue of, \ age As a population gets older the canc>er * experience ,, increases So you never can pick up and identify the expected First of all the age expected mortality from cancer in any population is about twenty percent So that's pretty close But that that's expected in any special population is dspendant upon the age of the population So when you start to add taice 189 percent in the Zach-Susicind Study which was considerably cider than the Zach-Gaffey because it was based on that population bach in 1949 the expected is going to be quite different from that. And you can't do it anyway -- you can't taice 13.9 and multiply it 3. I i Ii : I tin th Sack*Gafey mortality and just add the cancer to * it and say that*a th population, Th population is the 5a 3 plus 32, minus the overlap. So that's campletsly wrong, the r 4 way that was done, I 5 Q Now, why is that, sir? Are there principles of 6 epidemiology we're talking about here? 7 A The expected in mortality experience in any 8 papulation is dependant upon correcting it for age. And in 9 order to correct it for age, you can do it manually, but it 10 would take days. So there are computer programs that have n been written to take a population in which you insert the agi 12 of each one of the people involved in this study, into the 13, program, and then it calculates the expected cancer experience 14 based on age. l 15 Q All right, Well, let me direct your attention 16 again, if I may, to Defendant's Exhibit 62 If you'll lock 17 at the second page of the exhibit, sir -- IS A Are you talking about -- 19 Q Tea, the Zack-Suskind Study. 20 A I don't have it -- Zack-Suskind, all right. 21 Q All right. The second page, right where you n mm were. 23 A All right. 24 Q Right there. Right down at the beginning of 1 this paragraph. Dr. Suskind Is describing there, is he not, I ,2 one of these generally recognized computer programs? 3 MR. CARR; Dr. Suskind or 2ack? Is the principle 4 author Suskind -- * 5 q (By Mr. Heineman) All right. Zack and Suskind 6 are discussing here one of these generally recognized 7 programs; isn't that right? .8 A Yes. 9 In other words, when they say "The data were 10 analyzed by the modified life-table method using the updated II Monson program," it doesn't tall you right here what the i 12 updated Monson Program is, does it? 13 A No, sir. 14 Q So that the people, this being written for 15 other epidemiologists, I suppose, people will know what the 16 updated Monson Program is? 17 A Yes, sir. IS Q Wouldn1t they? 19 A Yes, sir. 20 Q Why do they know that? 21 A Because it's commonly used. 22 Q Everybody uses it? 23 A Yes. 24 Q All right. So that whenyou're talking about 1 **** epidemiological computer programs, these are things 2 that ax used all ovr the country? 3 A res, sir. 4 Q And these art statistical analyses employed by 5 mathematicians; correct? 6 A res, sir. 7 Q Nov, if indeed this process was used by Mr 8 Carr, where he added only the deaths, only the cancer deaths 9 from the Zack-Suskind Study and not the total number of JO deaths, sc that things, as I understand it, that are wrong II hare are one, you can't just take the cancer deaths, you've 12 got to bring in the total nuaber of deaths into your 13 denominator here? 14 A Right. 15 U Don11 you? 16 A res, sir. 17 Q In addition to that, your expected changes, 18 doesn't it7 19 A res. He was trying to calculate the expected 20 there, but it is not -- but you can't even do that that way. 21 Q All right. So your expected changes? 22 A res. 23 Q In addition to that your expected changes not 24 i only because of the number of people involved, but your expected changes because of the differences in age or the people involved? A Yes, sir. And time of death. Q And the time of death -- A Right.' Q -- is another factor. So all of those have to be plugged into the computer in order to come up with what in fact is the incident of death, whether it is statistically significant? A Whether it's greater than the number of expected, all that has to be done. Yes, sir. 0 Doesn't it? So that this figure, where other types of cancer deaths have been calculated by Mr. Carr, that's not correct either, is it? A No, sir. Q For the reasons that we've just talked about? A Right. Q And this one for a different kind of cancer death, that's not correct either, is it, for the reasons we talked about? A That's right. Q And the same would be true of this one? A Yes, sir. Q All right. That gets into the next study. We'll 37 I I r ,i 3 i 4 i 5 i i 6 7 9 9 10 ' II' 12 13 , 15 16 ' I 17 ' I 18 \1 19 20 21 22 ' 23 l 24 worry about that later. Now, in the Zack-Suakind Study, you! t studied a hundred and twenty-one people) correct? A Yes, sir. Q Now out of the total deaths, there were how many, 32? A Thirty-two. Q And hov many were expected, sir? A Out of 46.4. THE COURT] I'm sorry. What was that number? THS WITNESS] yorty-aix point four. THE COURTi. Thank you. Q (By Mr. Heineman) Now in that study, Dr. Suskind says on page -- well, it's the third paga of the exhibit, right in the "Results" section -- MR. CARR) What exhibit are you talking about? MR. HEINEMAN] 62. Defendant's 62, the ZackSuskind Study. MR. CARR: You said Suskind again. Dr. Zack said this, and Suskind signed it along with Zack. Q (By Mr. Heineman) The Zack-SuskindStudy. A Yes. Q The results arestated there on that page right below Table 1, are they not, sir? A Yes, sir. I 1 Q And it says, The resulta of the standardized aortality analysis of the 121-member 3tudy cohort are shown ;3 in Table 1;" correct, air? | 4 A Yes, sir. 5 Q "The standardized mortality ratio for all deaths \ 6 la shown to be 0.69, with 32 observed deaths and 46.41 '7 expected. 8 A Yes, sir. 9 Q Correct? So that's 41. He says this is the 10 only statistically significant difference shown in this 11 table; correct? \ 12 A Yes, sir. \ 13 Q The only one that was statistically significant 14 was this. And what was it? Xt was low, wasn't it? 15 A Yes, sir. 16 a, It was statistically significant, less, fewer 17 deaths than expected; correct? 18 A Yes, sir. 19 Q All of the other findings where excesses were 20 found and there are lung cancer, disease of other respiratory 21 pardon me -- respiratory system and lung, there are excesses i 22! found, are there not? 23 A Yes, sir. 24' Q Sut they're not statistically significant? 1 i I IIi A That's right. Q The diseases of the circulatory system are i i 3 found to be less than expected? l 4 A Yes, sir. 5 Q Arteriosclerotic disease, including coronary 6 heart disease, is found to be less than expected? 7 A Yes, sir. S Q The malignant neoplasms, all malignant neoplasms 9 are found to be as expected; right? 10 A Yes, sir. II Q Cancer, 9 observed, 9.4expected. 12 A Right. 13 0 Right? New, these expected figures are expected i 14 for this population; correct? 15 A . Yes, sir. 16 Q All right*Gastrointestinal, are these cancers 17 now? i 18 A Yes, sir. 19 Q Gastrointestinal cancers, none found, 2.5 20, expected 21 A Yes, sir. 22 l Q Correct? Lung cancers; correct? 23 A Yes, sir. 24 Q Five found,2.85 expected. Correct? II r j 4 J 6 7 -a ;9 10 i 11 12 13 14 15 16 j 17 13 19. 20. 21 n: 23 1 _ 24-1 A Yea, sir. j I Q So the gastrcintestanals are low by some margin, the lung cancers are high by some margin, but neither of them is found to be statistically significant? A That's right. Q Heart disease, 13 found, 17 expected. Correct? A Seventeen seventy-four, u Seventeen point -- A Seventy-four. Q All right. And that was f^und not to be statistically significant? A That's right. Q The bladder cancers, none found; correct? A That's right. 0 Was there an expected level there for bladder cancers7 A One point one six. Q That's the Zack-SuskindStudy, isn't it, sir? A That's right. Q Zack-Oaffey. Now what'sthe population in this group? A I don't have it. 0 That's Plaintiff's Exhibit 281. It may be up here. No, I'm sorry, it sure isn't. Let me hand you, sir, i i i I vfcat's bona anrtad aa Plaintiff1s xahibit 2S1 and Dofandant 2 M u u t Xahinit 65 Mov that's tha 2ao*-affay study, la 3 It not# air7 4 A Man, sir* 5 W Sov what's tha population la thin group, six? 6 A fiity-aight. 7 U fifty-night is ISnuabar ofdaathsr right? a A Maa, air ;9 Q Out of a anchlargarpopulation than that? 10 A not daflaad. II W All right. It 1 can diract your attantion Mach 12 to tha Saoh-iuakind study, thara vara a hundrad and tvaaty- 13 oaa that had onloracaa, but thara vara thirty-tv daaths; 14 right? 15 A raa, air. 16 W All right. So tha taea-Ctfiay va bava total daa ihs 17 fifty-night. tfa hava total canear, hov many, air? 18 A Mina. 19 Q And hov naay axpoctad? . 20 A Tan point niaaty-four. 21 U In this populationi corraet7 n A Man. That population of that aga distribution. 23 0 Gaatrolntaatlnal, hov nany? 24 _ f & A 2aro. 42 '; I Q None. And how many expected? A Two point eight zero. 3 Q Lung? ' 4 A Six. s Q How many expected? 6 A Three point five seven. 7 Q Heart disease? S A Twenty-seven. 9 Q How many expected,sir? 10 A Nineteen point seven two. 11 Q And bladder? 12 A Bladder two, with point twenty-twoexpected. 13 Q Yes, sir. Now of the total of these 32 deaths 14 in the Zack-Suskind Study, there were four that we know of 15 that were in the Zack-Suskind Study and listed as unexposed 16 in Zack-Gaffey* correct? 17 A Yes. 13 Q In addition t<* that, sir, werethere some that 19 were in the Zack-Suskind Study and listed as exposed in the 20 ZacJt-Gaffey Study? 21 A Yes, four of them. 22 Q So there is a total of eight people that overlap 23 between the two groups? 24 A That's right i 1 Q The two groups of deaths? 1 A That's right. m 3 a How with respect to addiag-Zack-Suskind and 4 Zack-Gaffey, what did you do with that, sir? 5 A You'll have to add the S8 of the Gaffey Study :* and you add to that the 32 Zack-Suskind, minus.four that i 'i were already included. ;8 a Mow, how about the other four7M 9 A That's the four we're adding. 10 Q All right. So that the total deaths when yvu 1,1 add these two together arc how many? 12 A It's 58 plus 28, or 86. 13 Q .So it's not 67? M A Mo. ' 15 a It's 86? 16 A That's right. 17 a Correct? Did you in the Epidemiology Department is: make this calculation since Mr. Carr went over this with you? 19 A Yes, sir. i 20 Q All right. And what did you do in order to make 21 the calculation? A We used a Monscn Program based on the age 23 distribution of that 86 to determine what the expected cancer 24 death for each one of those categories Q All Now over here you've got the computer Monson Program; correct? A Correct* Q Over here we have what computations Mr, Carr went through with you. Okay? A Hight. Q Nov we start with the total cancer. Let's make sure we've got then in order here. Gastrointestinal, lung/ bladder/ lymph system/ other cancers/ and heart disease. Correct/ sir? A res, sir, Q Now those are the various items that Mr, Carr went over with you? A Yes, sir. Q Now -- now, as to total cancers/ Mr, Carr said there were 13/ and there should be expected hew many/ sir? Twelve point six# wasn't it? A That first item you had was twelve six, Q Okay. As tegastrointestinal/ he saidthere were two, ana -- MS. C A M : Your Honor, I don't really mind being considered as a witness in this case, but I've not said anything. I've asked questions and the witness has respond* ed/ various witnesses have responded giving these facts, and iI all these particular facts were elicited frcm this witness 2 at this time from the exhibits in evidence- I object to > 3 counsel characterizing as "I said.4 HU. HZI2JEMAN: I think that's quits accurate# 5 Mr Carr. 6 MS. CARR: Thank you. 7 MR. K22N2MAN: What you did vas writs down thesei a calculations for him. You said you had done them on a 9 calculator. Correct? 10 MR. CARR: Counsel# as you know# each thing on 11 there has tw be agreed to by a witness based upon the facts 12 given the witness# based upon the exhibits in evidence# or n else it cannot be put there for the jury# as you're aware M of that. It cannot be admitted into evidence. Therefore# 15 each fact that I have put on any board I have done so with i 16 the agreement of the witness at the particular point in 17 time. 18 THE COURT: Objection is sustained. Could you 19 rephrase your statements. 20 Q (3y Mr. Heineman) Doctor# Mr. Carr showed you 21 a calculation for lung cancer. Do you recall that? 22 A Zes, sir. 23 v And he said there were -- 24 MR. CARR: Zaur Honor i I c, I * 3 4 I 'J 6 ;7 8 9 10 - 11 12 i 13 14 15 16 17 IS 19 20 21 22 23' i 24 Q (By Mr. Heineman) -- he said there were ten? MR. CARR: Your Honor, I object. I gave the calculation to the witness. The witness agreed that that calculation, based upon those facts, were correct. These are not calculations that are mine. I'll be glad to testify to them, but t&e way that it works, Counsel, is the witness either agrees or disagrees. If he disagrees, it cannot be written on the exhibit. MR. HEINEMAN: Your Honor, if I might address that a moment. My recollection of what happened was that the witness said a number of times that you can't do that You can't add the two together. And Mr. Carr said he could, and that were these calculations correct if you assumed that they added them together. That's what the witness agreed that the arithmetic was correct. MR. CARR: What I gave to the witness were the facts that were in the exhibits. I said based upon these facts is this calculation correct, and the witness agreed based upon those facts that they were correct. THE COURT: Objection is sustained. I'll ask you again to rephrase it. Q (By Mr. Heineman) The calculations, sir, that you went through with Mr. Carr, reflected 10 lung cancer deaths and 4.12 -- now wait a minute. Well, here 47 I we've got it right here. Plaintiff's Exhibit 1465-A. Do 2 you see that, sir? , 3 A Yea, sir. i 4 Q For lung, TO. Genitourinary, 2. Correct? 5 A Yea, air. |6 Q Mow he listed 10 for lung. : 7 MR. CASS: Your Honor, Counsel is doingtth* same 3 thing again. ! 9 MR. HEIN2MAN: I'm sorry. It*a a freudian slip, 10 Judge. 11 Q (By Mr. Heineman) The calculation states TO 12 lung cancer deaths; is that right? 13 A Yes, sir. 14 Q And it says here on Plaintiff's Bxxhbit 1465-A 15 10 lung cancer deaths; correct? 16 A Right. 17 Q And the number expected for lung cancer deaths I 18 was calculated to be 4.12; is that right, sir? 19 A I don't recall. That's it. 20 Q Is this it? 21 A Yes. 22 Q Four point one two. .'here the 143 percent -- 23 A Yes. 24, Q All right. So that's fcr the lung cancer there, I 1 as shown on 1465-A7 > A Right. | 3 Q All right. Now, air, with respect to -- with 4 respect to bladder cancer, there were two listed in 1465-Ay 5 correct, sir? 6 A Yea. 7 Q The calculation of expected -- I don't see that 8 here. I'm trying to find the exhibit where that number 9 was, Judge. 10 THE COURT: Why don't we take a short break and 11 you find it7 12 MR. HEINEMANx All right. Thank you. 13 THE COURT: Okay. Ladies and gentlemen, we'll 14 take a short break at this time. I will remind you, and 15 this would go for any other breaks which we take, not to 16 discuss this matter among yourselves, with anyone outside 17 the jury panel, or as of yet form any opinions or conclusions 18 about the matter in trial. Court is in recess. 19 20 (Short recess.) 21 22 Q (3y Mr. Heineman) Doctor, at the break you 23 corrected me on something, didn't you, sir? You said this 24 G.I. should be G.U.; is that right? Q What would that stand for? A That means gastrointestinal, and G.U. would be genitourinary. j Okay. MR. CARR: And another correction, what is that exhibit number, counsel? MR. aSINEMAM: No, not yet MR CARR: Why don't you put an exhibit number on it so I can rarer to it? MR. HEXNEMAus Okay. I'll be glad to. (Defendant Monsanto Exhibit 910 was marked for icentification by the court reporter.) 0 (by Mr. Kaineman) Doctor, I'm marking this sheet that we've ceen drawing on here as Defendant's Exhibit 910, and that's this last sheet where we're addking zackSuaJclnd and acx-Garray together; correct, sir? A Yes, sir. MR. CARR: It refers to a "Carr Study," or a "Carr column." uf course, that's inaccurate to be an exhibit, or Qc.` Roush's testimony to that affect. But I haven't testified to it. I object to the use of the word I *Carr" on thi3 exhibit. 1 MR. HEIHEMAN: Well your Honor the reason 3 the "Carr" is on there is that these were the calculations 4 that Mr. Carr went through with the witness. And it was 5 to identify them as that column only. 6 THE COURT: I'd prefer that you change that. 7 I'll allow you t~ change it to whatever number of the 8 exhibit that you(ve been referring to that those calcula 9 tions. 10 MR. HEINEMAii: Well/ it's a combination of 11 exhibits your Honor. 12 THE COURT: I do want you t change that. 13 HR. HZINEMAN: All right sir. 14 THE COURT: You've been referring to 1465-A and 15 MR. CARR: Just put the exhibit numbers on it 16 that you're referring to Counsel. Then you don't have to 17 guess about what you're talking about. 18 HR. HSINEMAN: How these documents here your 19 Honor from which these numbers came some of them came 20 were never marxed oy Mr. Carr. Could we get plaintiff 21 exnibit numbers on those then I can put the numbers cf M these. 23 THE COURT: ' Fine. 24 MR. CARR: That's fine with me I Honor? HA HZIH.EMAMS I thin* it starts hare Tn COURT: 'ou can 3 use aaxe it a group exhibit. HA* HRIMRMAHi Maks it a group exhibit, your THE COURT: It's the sans calculations. (Plaintiff's Oroup Exhibit 1512 was markad for Identification by tbs court reporter.) MR. HalMZMAMi All right So that tbs record would be clear, your Honor, Plaintiff'a Croup Exhibit 1312 consists of tna first sheet of calculations in wnicn Mr* Carr -- in whrea there appears calculations 67 tines 18.9 percent equals 1 2 .b. The second sheet of calculations ending in the atateoent one nundred forty-three percent. The third sheet of calculations enoing in the etatuent 92 percent in excess^ Rad the fourth sheet of calculations ending in the numoer 23 percent THE COURTS fine. u (ay nr. deineaan) How, sir, with respect to the bladder -- with respect to oladder cancer, the nuaser which appears in tne acx-<iaffey Study, wnicn is Plaintiff's Sxhioit 2 a 1 , as tne expected is wnat, sir/ I Point twenty-two T g Point twenty-two. And Plaintiff's Group Exhibit J 1212, to your recollection, sir, deee not contain a calcula 4 tion for bladder cancer, done it? 5 MR CARRi I object to the fora of the question. 6 THE COURTi Objection sustained. 7 Q (By Mr. Heineman) Does Group Exhibit 1512 S contain a calculation for bladder cancer? 9 A No, sir. 10 g now with respect to the lyuph cancer calculation, I II Exhibit 1465-A shows a percentage of deaths higher 12 expected. That's Plaintiff's Exhibit 1465-A of 92 percent. IJ And we can trace a calculation for that as part of Group 14 Exhibit 1512, can we not, sir? 15 A Tee, sir. 16 U And in that the expected was placed at 1.56; 17 correct? Zn the calculation in Group Exhibit 1512. 13 A Which is 1512? 19 Q I'a sorry? :o: A Which is 1512? 21 0 1512 is this group exhibit of calculations, sir. n mm A Yes. Right. 23 Q Right? 24 A Yes. I I I Q And from Exhibit 1465-A we see that there are 3 4 5 6 '7 3 t 9 10 - II 12 13 I 14 15 16 17 I 13 19 20 t 21 23 24 listed aa 3 -- A Right, Q -- occurring. Now, air. with respect to other sitea, we see from Exhibit 1465-A that there are three occurring, and from Exhibit 15 -- two occurring at a percen tage of death higher than expected of 26 percent, and if we go back to Group Exhibit 1512 we see that in order to get that 26 percent there was- a 1.59 expected used. A Yes, Q And with respectto heartdisease, sir, we see from Exhibit 1465-A that there are 27 accounted for there. We don't have -- do we have such a calculation among Group Exhibit 15127 A No, sir. Q But from Exhibit 281 wehave theexpected of what, sir, 19.72? A 19.72. Q All right, air. Now you told us, sir, that you caused a computer Monson Program to be run; is that right, sir? A Yes, sir. Q And how did you go about doing that? A We took that -- what we were trying to find is 54 i I what would be the expected cancer, G.U., lung, bladder, lymphatic, other, and heart for a population of a size of 3 36 with the age distribution as presented in that group. We i '4 used the Monson Program to determine the expected rates 5 for each of those. 6 Q And the Monson Program was used on this 86 and i 7 the group you looked at were the two groups that were put a together; is that right? 9 A Yes. 10 Q So that you could get a determination of age? It A Yes. Assuming that they could be put together. 12 Q Assuming that they could be put together? 13 A Right. i 14 Q All right. And whoa did you discuss this with? If A Dr. Gaffey. \ 16 Q Dr; Gaffey? 17 A Right. I IS Q And you and Dr. Gaffey worked together on this 19 being performed? 20 A Yes, sir. 1 21 Q All right. VI 23 (Defendant Monsanto Exhibit 911 was marked 24 for identification by the court reporter.) I 1 MF.. CARF: Your Honor, I object to any use by Gaffey unless Dr. Foush did it himself. If or. Gaffey did 3 it, Dr. Gaffey should be here. It's not clear thus far, 4 other than the fact that Roush discussed it with Dr. Gaffey, S who worked the computer, who put it in, who did the study. 6 THS COOFT: Would you clarify that please. mt MF. HEINEMAN: I 'll be glad to clear that up. 8 THE COURT: Fine. 9 Q (By Mr. Heineman) Dr. Roush, tell us how you 10 and Dr. Gaffey did this, and what each of you did. 11 A We -- I asked him whether we could put these 12 two studies together in his opinion, and he said no, they 13 could not be put -- 14 MR. CAFR: Your Honor, I object to any testimony 15 that this witness is going to give to some other person. 16 THE COURT: Objection is sustained. It is 17 hearsay. 14 Q (By Mr. Heineman) Now, if you would, sir, tell 19 ua what the two of you did, together or separately, in 20 coming up witn the figures on the computer Monson Program. 21 A Me did the computer analysis of rhe expected Tl mm mortality for each of those specific causes of death. 23 0-- 4 A Related to a population of 86 with the age I 3 ;4 5 6 7 I 8 9 10 11 12' 1J 14 15 16 i I 17 13 : 19 :o 23 .4 I distribution that could only be gotten from that program* Q All right* Nov was that done under your direction* air? A Yes* air* Q Were you with him out at Monsanto when he did it? A No, sir* Q So that it was at your instruction that he performed this exercise with the Computer Monson Program? A Yes, sir* Q And then he came to you with theresults? A Yes, sir. Q All right. Let mehand youwhat's been marked as Defendant's Exhibit 911, sir. Can you identify that for me* A Yes, sir. Q What is that? A This is the proportional mortality ratio study of Gaffey by putting those two populations together. Q Z notice it's in handwriting; is that right? A Yes, sir. Q Whose handwriting is that? A Dr. Gaffey's. Q And that was -- that handwriting, was that given to you? in I I I A Yea, sir. 1 Q Was that thereport of what you had asked him 3 to do? i 4 A Yes, sir. j 5 Q Sir, was there adetermination with respect to - 6 this.Computer Honson Program as to how many total cancers / were to be considered? 8 HR. CARRi Your Honor, I object. Any use of the 9 table is clearly Or. Gaffey's table, and not Or.Roush's 10 table, and not be used unless X cross examine Or. Gaffey 11 as to its authenticity, and how he got it is clearly a l 12 self-serving statement prepared by Monsanto. X object to 13; it. i 14 MR. HE2NEMAN: Your Honor, there isn't any 15 question, as I've established through this witness, this 16 work was done by Dr. Gaffey under this witness' direction, 17 and that this report was made by Dr. Gaffey in his own 18 handwriting as t* the results of the report on the results 19 of this Computer Monson Program. I think under those 20 circumstances, all I want this witness to do is to report 21 what those numbers are. mm MR. CARR: I object to it, that all he wants to 23 do is to have Dr. Gaffey*s table introduced into evidence, 4 or used without Dr. Gaffey being here and subject to the 1 1 1 l T! ,3 i I4 :5 '6 / a 9 10 il i: u 14 15 16 17! 18 19 20, 21 ' i t 23 24 1 i1 Ji cross examination as the rules require. : THE COURT: Objection i3 sustained. Q (By Mr. Heineman) All right. Doctor, one of the iteins included on Plaintiff's Exhibit 1464-A is an entry for a Mr. John Workman. Do you see that, sir? A Yes, sir. Q Whose date of death was 1971. Do you ace that, sir? A Yes, sir. Q And the source of information was Marcia Strauss. A Yes, sir. Q Do you see that, sir? A Yes, sir. Q Mow, this John Workman is included on this exhibit entitled, "Cancer Deaths of Workers Exposed to TCDD Omitted from Table 10 Zack-Gaffey Report;" correct? A Yes, sir. 0 And it is a fact, is it not, that according to this exhibit, which was shown to you a couple a days ago, a few days ago, that the souce of that information was Mar* cie Strauss; is that right? A Yes, sir. Q You have -- Do you have Plaintiff's Exhibit M63? Thank you. Let me hand you what's been previously marked I r, as Plaintiffs Exhibit 1463. Do you remember that document, j i :i jI sir? A Yes, sir. <4 0 Mr. Carr went through it with you, or went J through portions of it with you, did he not? 6 A Yes, sir. Q And he asked you specifically about a certain 8 page which is page four of four, and Attachment II, Roman 9 Numberal II. Do you remember that, sir? 10 A Where was that, sir? I don't remember it. II Q Page four offour,Attachment II. 12 A Yes. IJ Q All right. Under there he asked you about the 14' entry for a Mr. John Workman, did he not, sir? 15 A Yes, sir. 16 Q And this is the same John Workman for which IS1 19 20 21 ! 22 : 23 ( 24 Strauss is listed as the source of information? A Yes, sir. Q And there is a portion of this record here, there's some writing on this document that's in evidence which Mr. Carr did not ask you to read to the jury. Do you remember that? A Yes, sir. J would you read it to the jury -- j i I MR* CARR: Would you identify whose writing it ii# because this is a work of Strauss-, unless this is 3 Strauss' handwriting on there# I'll object to it. 4 THE HEINEMAN: The document is in evidence# Mr. i ;5 Carr. 1 6 MR. CARR: Then I withdraw the objection. But ; 7. I would ask that you identify whose writing it is# Counsel. '8 MR. HEINEMAN: I don't know whether this 9 witness knows whose writing it is. 10 Q (By Mr. Heineman) Do you know whose writing II that is there, sir? 12 A Mo, sir. 13 Q You don't know one way or the other? 14 A Mo. 1;5 U It might beMarcie Strauss# it might not be? i 16 A Yes# sir. 17 MR. CARR: I object to that. That's pure 18 speculation. I ask the jury be instructed to disregard it. 19 THE COURT: Objection is sustained# the jury t 20 is ordered to disregard it. 21 C (By Mr. Heineman) Now would you read that n mm statement to the jury, please. 23 A "He shouldn't becounted as exposedbecause 24 information came from the medical records# not the work I 1 3 4 5 6 7 8 9 10 ' It 12 13 14 15 U 17 13 19 20 21 n 23 li history. Q Ail right. It says he shouldn't be counted as exposed because tne information came from the medical records, not the work history; correct? A Yes, sir. Q 2lov, the Zack-Gaffey Study, sir, was based upon work histories, was it not? A Yes, sir. J And it was the people whose work histories .demonstrated their exposure to the process of manufacturing 2,4,5-T and TC? that were included? A yes, sir. 0 So that, in this document that's in evidence, the typewritten portion has John Workman listed? A Yes,sir. 0 The handwriten portion says heshould not be included? A Yes, sir. Q Wow, sir -- before I get to that. Let ms ask you this, Or. Roush, if you have two separate studies, and statistically one study- does not reveal a certain abnormality, and statisticallythe other study does'not stress that particular abnormality, even though both are looked for, if you put the two together, what would you expect to find? 62 i 1 A Since you're adding constant ratios, a certain percentage in one study has cancer and a certain percentage 3 of the other that have cancer, the percentages will come 4 out to be about the same, and relate to the tvo of them. ' 5 It won't be strikingly different? 6 Q So that if you put the sets of figures together 7 properly by adding the total populations studied in each, 8 that you shouldn't find enormous changes from one to the 9 other, should you? 10 A Mo. As a matter of fact, it would be someplace 11 inbetween. i: g It would be inbetween the finding of one and 13 the finding of .the other? 14 A That's right. 15 0 It's like taking five and four, putting them 16 together to make nine, divide it by two and you get four n and a half? i 18 A Ye*. The only problem is that the populations 19 are not equal size, so they have to be weighted. 10 Q All right. So that in an epidemiological study, 21 the populations have to be weighted according to size, according to age? , 23 A Yes, sir. 24 Q Those kinds ofcorrections have to bemade* I According to date of death as well. But when you do all 1 ** of those calculations according to the Monson Program, then ! 3 what comes out is something that's a hybrid ot the two? 4 A That's right 5 Q But it's not going to be outlandishly greater 6 than either one, is it? l 7 A Right. The only thing that will happen then is 3 the significance of it will be related now to the new i 9 larger denominator, so the significance will change because 10 of the larger number in the denominator. That's the reason \ 11 the denominator is so important. It's the reason you can't 12 just take part of it and add it. I 13 Q So the larger denominator may create something 14 that is statistically significant that wasn't before? IS A That's right. 16 Q And it may create something not to be statistics 17 ly significant that was before? 13 A Yes# sir. 19 Q So the larger numbers change statistically, 20 the findings of each one separately? 21 A That's right* 22 0 But not greatly? 23 A Mo. No. It depends on how far they're apart, 4 because a larger one will tend to make the numbers come up J i I r `,3 4 5 6 7 a 9 10 \ * ir, i i 12 13, 14 * 15 16 17 . IS 19 20 21 23 24 closer to the larger one. Q All right. But it's not going to be outside the range of either one? A Mo, sir. Q It's going to be somewhere inbetveen them? A Right. *% Q Now, sir# do you have Exhibit 7483 there? I'm sorry, here it is right here. Exhibit 7483 is in evidence there, sir, is it not? A What do youmean in evidence? Q Nell, it has been admitted into evidence, has it not? THE COURT: I think it has. Q (By Mr. Heineman) You may not know that, Dr. Roush, but I think it has occurred. Nov I'd like to direct your attention to page 39, I think it is, of that exxhbit. THE COURT: It has been admitted into evidence. MR. HEINEMAN: Thank you, Judge. Would you mark that please. (Defendant Monsanto Exhibit 912 was marked for identification by the court reporter.) Q (By Mr. Heineman) Sir, let me hand you what's 65 I ! '- 3 4 '5 .6 7 l 3 9 ( 10 i " 11 12 13 14 15 16 i 17 >6 19 i :o 21 tt 23 24, i 1 been marked fee identification purposes as Defendants ! !i Exhibit Number 912. Is that an accurate copy of page 30 of / Exhibit 1483? A Yes, sir* MR. H2INEMAN: Your Honor, may I pass copies of Exhibit 912 to the jury? THE COURT: Yes, you may. MR. CARR: Ho objection, your Honor. Q (By Mr. Keineman) How do you remember, sir, Mr. Carr discussing with you the subject of the relationship statistically between 2,4,5,-T exposure and the extant to which PAB caused bladder cancer in the Nitro population? A Yes, sir. Q Do you remember that, sir? A Yes, sir. Q Now there was no doubt, was there, sir, that Monsanto was aware that exposure to PAS, which stands for -- A Para-aminobiphenyl Qf Para-aminobiphenyl? A Right. '4, That had been manufactured at theNNitro Plant up until like 1935? A Yes, sir. w Was found to be a bladder carcinogen, and was no i I longer manufactured after that date* I1 A Yes, sir. * '3 Q And Monsanto instituted a program of monitoring I 4 those people that had been exposed to PAB? i j A Yes, sir* 6 Q And Indeedsome of those peoplewere included 7 in the Nitro Morbidity Study? a A Yes, sir* i 9 Q And some of the findings withrespect to them 10 were set out here in Exhibit 9 -- what is it -- 912? 11 A 912. 12 Q 912. Is tnat right, sir? 13, A Yes, sir. 14 0 Now, Mr. Carr suggested t~ you, did he not -- 15 well, first of all, when you look at the people that were 1 16' exposed here, those across the top, those words across the 17 top refer to exposure to 2,4,5-T; correct? IS A Yes, sir* 19 Q So that the column on the left are those who 20 were not exposed to 2,4,5-T and the middle column is those 21 who were, ana the right-hand column is those with question 2*i able exposure tw 2,4,5-T; correct? 23 A Yes, sir* 24 g And then those who had been exposed to para- aminobiphenyl are distributed among those three columns; correct? A Yes, sir. W And those among the persons that had exposure to para-aainooiphenyl who had bladder tumors, or bladder cancer, those are also distributed among those columns; correct? A Yes, sir. 0 So that -- and these are by history rather than examination, according to this document? A It had to oe byhistory. <j I'm sorry? A It had to oe by history and not oy examination. 0 All right. So what is the difference between a bladder tumor and a oladder cancer? h A tumor is any cancer or both growths that can happen anyplace in the body, and the difference between a tumor and a cancer is the tumor is a benign tumor by this definition, and because they're separated the bladder- cancer is one that's a malignancy. One is a growth and the ocher one is a growth that's a malignancy. w Wnat this was was differentiating -between the two? A Yes i I Q Those whicn were benign tumors and those which vert malignant cancers? 3 A Yes, sir. 4 j All right. Now, Mr. Carr, when questioning 3 you, showed you these percent numbers. 0o you remember 6 that, sir? [ l ' 7 A Yes, sir. '8 Q And he said that the .61 percent was less than 9 one percent; correct? 10 A Yes, sir. 1 11 * On the bladder tumors and bladder cancers? 12 A Yes, sir. 13 Sue the 3.43 percent for the bladder tumors was 14 many times larger than the .61. I think he said it was 15 Seven times larger; correct? i 16 A Six times larger. n! .j And that would be accurate if you looked just 18 at those percentage numbers, wouldn't it, sir? 19 A Yes, sir. 20 3 And he relied on those numbers to lead to the 21 <conclusion that those who were exposed had more bladder 22 1tumors, those were exposed to 2,4,5-T and para-aminobiphenyl i 23 'had more blaader tumors than those who were exposed only to 24 jpara-aminobiphenyi and not the 2,4,5-T; correct? A Yes, sic l Q But as a matter of fact, Ooctoc, those percentages that are being looked at there are the percentages that those numbers bear to the little 'n* up here; isn't that right? A Yes, sir v Okay. Now that little 'n* number up there refers to the total number of people exposed, or the total number of people unexposed in the Suskind Morbity Study, doesn't it? A Yes, sir 2 Doesn't refer to the number of people exposed to oara-aminobiuhenyl, does it? A No, sir. j So those numbers are not percentages of 8, or 71, or 16, tney're percentages of 163, 204 and 51? A Yes, sir. Q Aren't they? A Yes, sir. Q So that if you want to look, sir, at how many people actually got bladder tumors or bladder cancer, of those.who were exposed to para-aminobiphenyl, as compared to those that were exposed of those which ones also had exposure to 2,4,5-T, you just look at the numbers that are 73 1 ,r 3 4 15 '6 7 3 ,9 10 -H 12 13 M 15 i 16 17' 13 i 19 I 20 21 23 24 i 1 the top or tnose columns, don't you? I A Yes, sir. Q So tnat or those who were not exposed to 2,4,5-T eignt had para-aminodiphenyl exposure; right? A Yes, sir. 0 correct? And of those# two had either a tumor or cancer; A Yes, sir. Q So tnat would be two out of eight, or 25 percent correct,sir? A Yes, air. w So that the rate of those who were exposed to both para-aminobiphenyl and 2,4,5-T that got one of these cancers or tumors was 25 percent? Excuse me, I did that wrong, didn't I? A Yes, you did. * It's the other way around. The rate of those wno were exposed only to para-aminobiphenyl and not exposed to 2,4,5-T is 25 percent; correct? A Yes, sir. U Well, let's look at the next column. Those who were exposed to both is 71; correct? A Yes, sir. 0 and of tnose 9 people had eitner a tumor or a 71 r 3; 4; i J1 \ 6 7, 3' 9 11 l 10 ' 11 12 ' 13 14 15 16 17 13 19 20 21 4 23 (W f cancer of the bladder; correct? A Yes, sir. si And it's 9 out of 71, or about twelve and a half percent? A That's right. Q Correct? A Yes, sir Q So that re is less bladder cancer among the people who were also exposed to 2,4,5-T than there is among the people who are only exposed to para-aminobiphenyl; corr act? A Yes, sir. u And, indeed, those with questionable exposure are two out or 16, one out of 3, about twelve and a half percent again? a Yes, sir. w And there as well, there's l e s s people who have questionaole exposure to 2,4,5-T and para-aminobiphenyl exposure then those who have exposure to para-aminobiphenyl alone? A Yes, sir. si Correct? As a matter of fact, thisdocument proves just tne opposite of what Mr. Carr asked you about doesn't it, sir? A Yes, sir. 72 r! ;2 3 ;4 5 6 i '7 ,3 i 9 10 11 12 13 14 15 16 17 1 18 I 19 i 20 21' 22; 23 24 Q If tnere were any conclusion to be raised from this table along, it would be -- - MR. CARR: 'four Honor, I object to that* 1 iby Mr Heineman) -- it would be that dioxin protects you. THE COURT: An objection is being made, I believe. MR. CARR: I do object to the leading cross examination form of the question. X ask that the witness make conclusions rather than Counsel. THE COURT: Objection is '.sustainedI'lR. HEINEMAN: This would be a good time. Judge, if you want to break for lunch. THE COURT: Fine. X believe we're breaking for the day. MR. HEINEMAN: I beg your pardon? THE COURT: This is it for the day, I believe. MR. HEINEMAN: Oh, that's right. Okay. THE COURT: Okay. Ladies and gentlemen, we will break for the day at this point in time, as I told you before we were going to do. We'll start again tomorrow morning at 9:00. I would remind you chat you're not to read, listen to or watch anything about this case, in particular, or subject matter in general in any of the media. We'll see you tomorrow morning at nine. Thank you for your 73 I atLtAtaQfl XO CJwf 4CCOn< Court is adjourned. i2 ,3 i *Court adjourned.) 4 I :s i ,4 7 S 9 I 10 M 12 s 13 14 13 16 17 13; I9l i 20 211 I 22' 23 24;