Document ypEE9ODxJrR3ox61X6YKgRG03

STATE OF WISCONSIN CIRCUIT COURT BRANCH 8 MILWAUKEE COUNTY STROH DIE CASTING COMPANY, Plaintiff, v. VOLUME XX (p.m.) Case No. 639-887 MONSANTO COMPANY, Defendant. May 13, 1991 Honorable Michael J. Barron Circuit Judge Presiding A-P-P-E-A-R-A-N-C-E-S RIORDAN, DRIVELLO, CARLSON, MENTKOWSKI, STEEVES by DONALD CARLSON AND JOHN PENDERGAST, appeared on behalf of the Plaintiff. BORGELT, POWELL, PETERSON, FRAUEN by JOSEPH McDEVITT and KIRKLAND AND ELLIS by ANDREW RUNNING appeared on behalf of the Defendant. *** Brown & Jones Reporting, Inc. 312 East Wisconsin Avenue Suite 400 Milwaukee, WI 53202 PHONE (414) 224-9533 3397 WATER PCB-SD0000075532 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 INDEX WITNESS William Papageorge EXAMINATION Cross (Mr. Carlson) 3398 PAGE 3399 WATER PCB-SD0000075533 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P-R-O-C-E-E-D-I-N-G-S THE COURT: We are ready to resume the cross-examination of Mr. Papageorge. CROSS EXAMINATION (con't) BY MR. CARLSON: Q Good afternoon,sir. A Good afternoon. Q Welcome back. Just to your right they'll be a stack of exhibits for you and I to go through. This may aid in saving some time. In most instances I won't have to walk back and forth. I believe on the top of the stack there should be Exhibit 218? A I found it. Q And have you seen a copy of this particular exhibit at some point in the past? A Yes, I have. Q Is this the kind of information that Monsanto was monitoring with regards to PCBs in the 1968 time frame? A This is an example, yes. Q And as a matter of fact, Risebrough was one of the authors of this particular article? A That is correct. Q It's entitled Polychlorinated Biphenyls in the Global Ecosystem? 3399 WATER PCB-SD0000075534 1 A 2 3 4 Q A 5 6 7 8 9 10 11 12 13 Q 14 15 16 A 17 18 19 Q 20 21 22 23 24 25 A That is the title, yes. And Monsanto was in touch with Risebrough with regards to his findings? Yes. MR. CARLSON: Your Honor, I would offer Exhibit 218. It's learned treatise 52 on our list. MR. RUNNING: No objection. THE COURT: So received. (Exhibit No. 218, previously marked for identification, was received into evidence.) MR. CARLSON: The next document in the stack hopefully is Exhibit 28? I found it. MR. CARLSON: And, Your Honor, my records would indicate that this exhibit has previously been admitted. Mr. Papageorge, I don't want to belabor the points of this document. However, just if I could review a couple of things. First of all, the author of the document set forth in the second and third pages the procedure that would have to be followed if one were to change from a PCB fluid to a non-PCB fluid? May I take a look -- 3400 WATER PCB-SD0000075535 2A 3 4 Q 5 6 7 A Q 8 9 10 11 12 13 A 14 Q 15 16 A 17 18 19 Q A 20 21 22 23 24 25 Q A Q Sure. -- while I read it. If you don't feel comfortable with the question, tell me, you know; and take as much time as you need. I have glanced at that particular paragraph. And am I correct in saying that that's one of the things that the author of this particular memorandum was doing was looking at what it would take in order to switch over from a PCB hydraulic fluid to a non-PCB hydraulic fluid? That's the intent of that paragraph, but the reference is to competitive phosphate esters. You folks had a water glycol fluid that could be used in hydraulic systems at that time? There was such a mixture for some systems, yes. You had a phosphate ester also available for some systems? I'm trying to determine the date of this document. I'm not aware that early on Monsanto had a phosphate ester hydraulic fluid. I don't remember that. You do recall the water glycol, correct? I do, yes. The particular subjects of this particular -- of the 3401 WATER PCB-SD0000075536 1 2 3 4 5 6 A Q 8 9 10 A 11 12 13 Q 14 15 16 A Q 17 18 19 A Q 20 21 22 A Q 23 24 25 A work on switching fluids included the Pydraul 312 and the Pydraul F-9. I think you'll see that on the second page of the document. There are references to those two Pydrauls, yes. And then on the third page of the document if you look down to just below the center of the page there is an estimate of the minimum number of gallons of Pydraul fluids that were in systems domestically? . There is. And it was thought at that time that there was approximately 2 million gallons of Pydraul fluids of that type in the system? Yes. Then there's a reference to the average customer purchase price of $3.25 a gallon for that fluid. Do you see that reference? I do. With a calculation then of $6.5 million of fluid in systems at that time? Yes. The author then goes through and references what the outcome would be if Monsanto were to tell the customer that the fluid should be drained? It does. 3402 WATER PCB-SD0000075537 1 Q 2 3 4 A 5 6 7 Q 8 9 v 10 A 11 12 13 Q 14 A 15 16 Q A 17 18 19 Q A Q 20 A 21 22 Q 23 24 25 And one of the concerns of the author was that if fluids were drained folks might want their money back? Well, that is a question that is raised, yes. And the amount of money they would want back if all of the fluid was drained was the maximum calculation of $6.5 million that were in the systems at that time? Well, that would be the cost of the fluid as originally purchased. And the author then was questioning what would your responsibilities be to compensate the customer for his downtime for example? That question is raised for consideration. And also the cost for who pays for the disposal? That is also being considered. And who pays for the drums? Yes. And who pays for the freight? That is also considered. One of the ways to avoid having to make those payments would be to hold off taking fluid -- strike that -- to hold off telling your customers of the problems with PCB until a new fluid is developed that you can put on top of the old fluid, isn't that 3403 WATER PCB-SD0000075538 1 2 3 4 A 5 6 7 Q 8 9 10 A Q 11 12 13 A 14 15 16 Q 17 18 19 A 20 21 22 Q 23 A 24 25 true? Well, that's a way to do it; but there's more to consider than just compatibility and cost of replacement. But in this particular case you went to the terphenyl as a stopgap measure because a terphenyl was compatible with the PCBs, you could put it on top of the PCB? That was one of the reasons. And that gave your folks enough time to develop the phosphate ester that you could then put on top of the terphenyl on top of the PCB, right? That's what happened, yes. And during all of that period of time, you didn't tell your 312 customers that they had tho 5 chlorinated PCB in their systems which was the kind that was causing damage to the environment? That's also true, isn't it? Not quite. You didn't tell them that you -- you didn't tell the 312 customer they have the 5 chlorinated PCB, did you? The Monsanto field salesmen were capable of transferring that kind of information. And when discussion on the subject was brought up, the 3404 WATER PCB-SD0000075539 1 2 3 4 5 6 7 Q A Q 8A 9 10 11 12 13 Q A 14 15 16 Q 17 A 18 19 20 21 22 Q A Q 23 24 25 A customer was told, yes. I'm sorry, but I haven't seen any documents of you folks indicating that your salesmen were told to tell the customer that 312 fluid had 5 chlorine PCB in it. There is no such document. Were you here when Mr. Damiani testified? Yes, I was. I didn't hear if he said so. If I missed it, I should be corrected. But I didn't hear him testify that he had told the Stroh folks that they had the 5 chlorinated PCB in their fluids. I don't recall Mr. Damiani being asked that question. I'd like to if we could turn to Exhibit 29, which hopefully is the next one on your -- It is. Exhibit 29 is a handwritten document looking at the subject of the cost to change to phosphate esters or water glycols from PCBs? May I review it quickly? Surely. There are some costs that are written on this document relating to that change. MR. CARLSON: Your Honor, we would offer 3405 WATER PCB-SD0000075540 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q A Q A Q A Exhibit 29 into evidence as one of the documents produced by Monsanto in this case. MR. RUNNING: No, objection, Your Honor. THE COURT: So received. (Exhibit No. 29, previously marked for identification, was received into evidence.) MR. CARLSON: In looking at the document, it is apparent that the author was investigating or at least writing on the subject of some additional costs the company may see if there's a change over from PCB fluid to a non-PCB fluid. Yes. Is that correct? Yes. And if you take a look at the second page of the -- the third page of the document the author is Norm Johnson? His initials are there, yes, sir. And who is that to? To Mr. Howard Bergen. And Howard Bergen at that time held what position? He was the director of the functional fluids business group. 3406 WATER PCB-SD0000075541 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q Q Q Now, if we just go back to our -- to the previous discussion on the other exhibit. By not having to refund to your customers the cost of the fluids that were in place, your company saves $6.5 million, correct? Well, that's one to look at it, yes, sir. And now a calculation was made to see how much additional money could be saved if you -- if you did not have to pay for the cost of changing from the PCB fluid to the non-PCB fluid that in terms of labor that would be required, correct? Yes. Those are additional cost items that would be considered in such a program. And it was expected, was it not, that if your customer were told at the time this document was drafted that the 312 fluid should be drained from the machines your company would, in fact, be responsible for the cost of draining those machines? I don't know that, sir. That -- That would have to be established, whose responsibility this program would be. And if you would take a look on the third sheet, there was a calculation shown of the total cost to the company if you had to cover the expenses of 3407 WATER PCB-SD0000075542 2 3 4 A 5 6 7 Q 8 9 l0 A Q 11 12 13 A 14 15 16 Q 17 18 19 A 20 21 *22 Q A Q 23 24 * 25 A Q your customers for the labor to drain and clean all ' of these machines right underneath Norm Johnson's initials. 1 see the calculation under Mr. Johnson's initials. I'm having difficulty finding out the meaning of that $9.00. It looks as though he multiplied the $9.00 times the 2 million gallons that were in service? That's what it looks like, yes. And I think if you look in the beginning parts of the document what he's doing is calculating a cost per gallon for draining and cleaning? I'm still having problems finding that cost per gallon number. If we look down below the 18 million, we'll also see that not included in that number, however, was lost production of the customers? That's listed in the parenthetic on the circled area, yes. Or the lost profit of the customers? That is also listed. And the loss of customer goodwill and contracts? That is listed, yes. If for the sake of discussion, the $18 million cost of draining and cleaning the machines -- then that's 3408 I WATER PCB-SD0000075543 1 2 3 4 5 6 A Q 8 9 10 A 11 12 13 Q 14 15 16 A 17 18 19 Q A 20 21 22 Q 23 24 * 25 A Q another $18 million you folks would be able to save by not telling the 312 customers to drain and clean at that time, isn't that true? That assumes that Monsanto would pay for that $18 million. Right. Certainly there was a perception by your company that there was that potential legal situation that could develop though, wasn't there? That is a consideration that's taken when making these business decisions, and it represents perhaps the worst case scenario. And that's one of the reasons the legal department is brought into this fairly early? Oh, the legal department is brought into every decision, PCBs just being one of them. Would you be kind enough to look at Exhibit 30, which I believe is the next one in order? Yes, I have it. And Exhibit 30 is a compilation of documents starting with the February 16, 1970, memorandum regarding the pollution letter? That is an attachment to a letter or a memorandum. And then a copy of the February 9, 1970, letter is attached to that? 3409 WATER PCB-SD0000075544 1 A 2 3 4 Q A Q 5 6 7 8A 9 10 11 12 13 Q 14 15 16 17 18 19 20 21 22 Q A 23 24 25 Q Yes. And then the February 18 letter? Yes. And then the question and answers that were -- strike that -- the questions that were expected to be asked of your sales folks and answers they could give? Yes. I'd like to discuss -- MR. CARLSON: First of all, I would offer Exhibit No. 30, Your Honor, as documents furnished by Monsanto in this case. MR. RUNNING: It's already in evidence, Your Honor, on direct examination. THE COURT: Okay. It's received if it hasn't been received before. (Exhibit No. 30, previously marked for identification, was received into evidence.) MR. CARLSON: Would you be kind enough to look at page one of the February 9 letter. I have it. And the letter itself starts out with, "Recently several newspaper and magazine articles." Maybe we'll show that. Correct? 3410 i WATER PCB-SD0000075545  1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Yes, it does. THE COURT: What's the date of this letter? MR. CARLSON: This is February 9, 1970. Now, Mr. Papageorge, what I'd like to do if I could, sir, is to take the language of that first sentence, "Recently several newspaper and magazine articles have been published indicating that polychlorinated biphenyls, PCBs, have been discovered at some points in some marine, aquatic, and wildlife environments." And what I'd like to ask you to do, sir, is listen to what I'm going to read to you and ask if the February 9, 1970 -- this statement is accurate, "Monsanto has concluded polychlorinated biphenyls, PCBs, caused damage to certain species of wildlife and aquatic life and are a worldwide ecological contaminant." That statement as of February 9, 1970, was an adequate statement as to Monsanto, was it not? Yes. And if we take a look at that statement against what you folks have written -- One of the things that 3411 WATER PCB-SD0000075546 2 3 5 6 7 8 9 10 Q A Q 11 12 13 14 15 16 17 18 W 19 A 20 21 22 Q 23 24 25 A Q drafters of letters from your company seek to do is to persuade people to take action? That's one of the purposes the drafting, correct? That is a purpose. And another possible purpose of drafting is to draft things in such a way so that people do not do things, correct? That depends on the context of the message. Yes. It's your perception that most lay people in looking at the sentence, `"Recently several newspaper and magazine articles have been published indicating that polychlorinated biphenyls have been discovered at some points...," et cetera is less persuasive as a motivating force than telling your customers directly what you had concluded, isn't that true? Admittedly those are two sets of words. But I can see the same message in both statements. So you think that the second message in your -- in that comparison is equally as strong as the first as advising your customer of what your company had found? I believe so, yes. Let's take a look at -- Or let me ask you another 3412 WATER PCB-SD0000075547 1 2 3 4 5 6 7 8 9 10 11 A 12 Q 13 14 15 16 17 Q 18 19 20 21 22 23 A 24 25 question. As of February 9 of 1970, would you tell me if Monsanto had concluded this statement to be correct, "Damage to wildlife and aquatic life may occur in concentrations as low as in the parts per million. The PCBs are present in the environment in the parts per million and parts per billion categories." As of February 9, 1970, that statement that Monsanto was concerned was true, was it not? That is right. And let's take a look at that against what your letter said. Your letter did not reference damage to the wildlife, did it? No. The only reference is to environmental contamination. Now, in looking at these two statements, if the purpose of the message is to convey accurate information to your customer with regards to the potential hazards of PCBs, would you not agree that the top message is much clearer and stronger than the bottom? I -- When you say much stronger and clearer, with respect to which statement? Levels found? Is that what you're talking about? 3413 WATER PCB-SD0000075548 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A With regards to the actual facts that Monsanto knew them to be with regards to PCBs -- The actual facts that Monsanto knew them to be with regards to PCBs as of February 9, 1970. Well, the top statement would certainly describe those few reports that existed in early 1970 regarding a select few species and wildlife. You don't recall that in the '69 time frame you and your company had gone -- Monsanto had confirmed that work? There was no argument about that work at that time, was there? We confirmed the ability to analyze for PCBs. We did not, of course, have any programs within Monsanto to confirm the fact that PCBs harm juvenile shrimp or the fact that the Paragrin falcon was being harmed. We had to take the word of the investigators on that score. And the investigations -- Strike that. Let me switch to another subject. I'd like to have you listen to this statement and see if it is accurate as of February 9, 1970, "Pydraul contains PCBs which Monsanto markets under the trade name Aroclor. PCBs may have between two and ten atoms of chlorine. "Monsanto is -- Of that most of the PCBs 3414 i WATER PCB-SD0000075549 2 3 5 6 7 A 8Q 9 10 11 , A 12 13 Q 14 15 16 17 18 19 20 21 22 A Q A Q 23 24 25 A Q found in the environment are of the 5 chlorine category. Pydraul 312 contains approximately 9 percent and Pydraul F-9 contains approximately 40 percent of the 5 chlorine PCBs." Is there anything in what I just stated to you that was inaccurate? Would you read the reference to 40 percent? "The Pydraul 312 contains approximately 9 percent and the Pydraul F-9 contains approximately 40 percent of the five chlorine PCBs." That percent number -- I don't believe that's correct. What number would you put there? I -- I don't remember it. But I'm certain it's not that high. You don't recall that it was over the mid-thirties? No, I don't. Mr. Papageorge, I'd like to have you just look at the homolog chart and see if that refreshes your recollection with regards to the 5 chlorine PCB -- First of all, in the three -- I'm sorry in the Aroclor 1242. In Aroclor 1242? Right. 3415 WATER PCB-SD0000075550 2 3 *4 Q A Q 5 6 7 A Q 8 9 lO A 11 12 13 Q A 14 15 16 Q 17 18 19 A Q 20 21 22 A Q 23 24 25 A Q Yes, it does. Amounts there is what? This particular chart shows 8 percent. You have seen other Monsanto documents showing it to be 9 percent? And -- Yes. As well as 7. There's a range. With regards to the Pydraul F-9 which contains the Aroclor 1248 or the Aroclor 1248 what percent of the 5 chlorine is referenced? In the Aroclor 1248? Yes. That's 36 percent. But that's not in the F-9. I don't recall how much Aroclor 1248 is in the F-9 formula. I understand that. But the F-9 formula has the 1248 PCB, correct? That's one of the ingredients, yes, sir. And the 5 chlorine PCB in 1248 is approximately 36 percent? That is correct. I'm getting some help here. You have seen other charts at Monsanto for the 1248 showing it goes higher than 36? As well as lower, yes, sir. With regards to the subject or the statement that I 3416 WATER PCB-SD0000075551 1 2 3 4 A 5 6 7 Q 8 9 10 11 A 12 13 Q 14 15 l6 17 18 19 A 20 21 22 23 24 25 Q previously read to you, with these -- that change was my statement accurate? As I recall, your statement referred to Pydraul F-9 as having 40 percent of the 5 chlorine and higher. This data doesn't fit that statement. So what we would have to do then is to make a number of changes but if we say the Pydraul -- strike that. The Pydraul F-9 contains Aroclor 1248 which contains approximately 36 percent of the 5 chlorine PCBs -- then that statement would be accurate? That's an accurate statement. The point of this being that Monsanto could have conveyed information to your customers telling them that the products they were using had PCBs which were by Monsanto's opinion creating problems in the environment? You certainly had that capacity at that time, did you not? Well, that's hindsight thinking really. But the industry when referring to the Aroclor 1254 and 1260 was thinking of a specific industrial mixture that was used by many, many companies. And that's the terminology that made sense when you attempted to communicate. Except that you had a whole group of customers 3417 WATER PCB-SD0000075552 1 2 3 4 5A 6 7 8 9Q 10 11 A 12 Q 13 14 15 16 17 18 19 A 20 21 22 23 24 1 25 relying on your company for information about the properties of products they were buying from you and you didn't tell them that the five chlorine PCB was in their product, did you? Well, as I said earlier, it's a matter of communicating in terms that were common in the day; and this was considered to be adequate at the time. It was considered by Monsanto to be adequate at the time? Well, certainly. Now, there is certainly a reason not to tell a 312 customer that they have some of the bad -- I don't want to -- bad perhaps is a wrong characterization -- had some of the 5 chlorine PCBs because if you told them that there was the perception that you could lose sales, correct? No. I cannot say that's correct. That was not in the thinking because this is all coupled with -- Irrespective of whether the 5 chlorine is present or not, the material you're buying from us has a mixture of PCBs, don't let it get in the environment. Once that message is followed, no harm is done to the environment. 3418 WATER PCB-SD0000075553 1 2 3 4 Q 5 6 7 8 9 10 11 12 13 A Q A Q 14 15 16 A Q 17 18 19 A Q 20 21 22 23 24 25 Q Your customers were being called on by Houghton and some other companies who at that time were telling them as you understood that it -- that PCBs were bad? Well, competitors were calling all PCBs equally bad, yes. And one of the things that you did in the February 9 letter of 1970 was not even to tell your customers they had PCBs, the 312 and the F-9 users? Well, it told them they were not formulated with Aroclor 1254 and 1260. And it didn't tell them what it was formulated with it, did it? True. Let's take a look at the next one hopefully which is Exhibit 31. I have it. And this is one I believe that you discussed with Mr. Running. It's the same as Defendants Exhibit 1250 -- I'm sorry, 1252. MR. CARLSON: Which has been received in evidence, Your Honor. This is a document in which Dr. Kelly was raising the issue in the last paragraph that customers should be told about the PCBs whether there's any 3419 WATER PCB-SD0000075554 1 2 3 4 5 6 7 8 9 10 A Q A Q 11 12 * 13 A Q 14 15 16 17 18 19 A Q 20 21 22 23 24 25 A possibility they might get or might contact food, feed, or water? That's true. And with regards to the Aroclor 1242, that also was in contact with or coming in contact with potential food, wasn't it, in the waterways? I'm confused by your question. The addition of in the water. You mean drinking water? Well, in the drinking water or fish swimming in the water where the 1242 was present. That's a route of entry into the food chain, yes. One of the things that I believe your company wanted to express at some point was the importance of not mixing PCBs with water so they don't come in contact with each other in the first place in the plant setting. Do you recall that? Yes, sir. And the reason you didn't want them to come in contact with each other in the plant setting was the company's -- Monsanto's understanding that if that occurred there was a potential for the PCBs then to leave the plant with the water in the normal discharge of the water? Of course, it depends on where that water is going to go. And if it's going into a sewer, the 3420 WATER PCB-SD0000075555 1 2 3 4 5 6 7 Q 8 9 10 A 11 12 13 Q A 14 15 16 Q 17 18 19 20 21 22 A 23 24 25 Q A potential for getting in the environment is there. The main purpose for cautioning against mixing with water is the difficulty in controlling the PCBs once mobilized by water systems. One of the things I was interested in looking at -- First of all, on your label you didn't reference that subject at all, that subject at all on the 312 label? It's covered by the statement -- The environmental statement where it cautions against entering into the environment. You're talking about the sticker, now? Yeah, the environmental paragraph. But specifically your company had a series of memorandums looking at or addressing that the question -- the customer should be told not to allow the PCBs to come in contact with water, not to allow them to mix. Do you recall any information given to your customers along that subject or on that subj ect? I recall reading references to Pydrauls and water systems in the product bulletins. And that was the -- I don't want to interrupt you. I don't recall the dates of those bulletins and the 3421 WATER PCB-SD0000075556 i i 2 3 Q A 11 12 13 Q 14 15 16 17 18 19 A Q 20 21 22 23 24 25 A Q A specific reference. If I could perhaps refresh your recollection this way. You're discussing with me in the Selector Guides the fact that if a company chose to remove Pydraul from water there was a way that that could be done? Do you recall that there's a series of tanks that are used? Yes. That was to correct a situation once it had occurred. But the -- I do recall some reference to, "Don't get it mixed in water in the first place; but if it does, here is what you can do," yes. If you can think of a specific document that makes -- that gives a customer that information if you happen to think about it during the course of the trial or just while you're on the witness stand just feel free to let me know, okay? I'll be happy to, yes, sir. If you want to let me know when you're not on the witness stand, that's okay too. I'm not too sure Mr. Running would like that though. Would you be kind enough to take a look at Exhibit 35? I have it. Exhibit 35, the top page is a August 31st, 1970, memorandum from yourself to a number of people? Yes, it is. 3422 WATER PCB-SD0000075557 i i 2 3 4 Q 5 6 7 A 8 9 10 11 12 13 14 15 16 Q 17 18 19 20 21 22 Q 23 24 25 A And then the following three pages is a program or information that you had developed called Polychlorinated Biphenyl Waste Control and Disposal? That's the title of the document, yes. MR. CARLSON: I would offer Exhibit 35 into evidence, Your Honor. MR. RUNNING: No objection. Your Honor. THE COURT: So received. (Exhibit No. 35, previously marked for identification, was received into evidence.) MR. CARLSON: If you would be kind enough to turn to the first page of the draft. MR. CARLSON: Is this in the way of some people? A JUROR: Yes. MR. CARLSON: Can I move this down below? THE COURT: Sure. MR. CARLSON: One of the things that you personally were interested in doing is looking at the question of how can liquids be handled to aid in preventing them from escaping into the environment? That is one of the objectives of this document. 3423 WATER PCB-SD0000075558  1 2 3 4 Q 5 6 7 8 9 10 A 11 12 *13 Q 14 15 16 17 18 19 20 21 22 A Q 23 24 25 yes. And with regards to liquids, the first point that's referenced here, "Every effort must be made to prevent the mixing of PCB with water thereby measurably reducing the opportunity for PCBs to enter a water system; that is, sewer, river, or lake." This particular statement was never incorporated in one of your product brochures, was it? It seems to me it was, but I'm having difficulty remembering just which product brochure. I -- I just don't recall that. The second point you make is, "All liquid handling systems must be designed and maintained to assure leaks and spills are a rarity. If they do occur, corrective measures should be taken immediately." With regards to die casting companies, did that include diking or building concrete dikes around machines? Well, that's covered under item two as well as three which follows. If a company has a trench system as opposed to dikes, one of the things that occurs is that in the normal course of business when washing down equipment, you get water into trenches as well as 3424 WATER PCB-SD0000075559 2 3 4 5 6 7 A Q 8 9 10 A Q 11 12 13 A 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q any fluid that may have leaked there? That is possible unless there's separate systems, yes. And Monsanto did not in any documents regarding the 312 product tell customers that they should build separate dikes around the die cast machines so that the water and the fluid would not mix, did you? No. Monsanto didn't specifically call for that engineering specification, no. And then there's reference to a drainage system or, "Drainage systems should contain interceptor basins to trap the heavy PCB for subsequent recovery." It does state that, yes. And then if we go on -- And I think the only thing I would like to discuss with you is one other point not because I wouldn't be willing to read everything. We do have some time constraints. Item number six where there's reference to the waste liquid PCBs. Do you see where I'm making referencing to? Item six, yes, sir. Would you read that for us. "Waste liquid PCBs can be destroyed by incineration at temperatures above 800 degrees 'C' temperatures." Can I interrupt you right there. Who established 3425 WATER PCB-SD0000075560  1 2 3 4 A 5 6 7 8 9 10 * * * 11 12 13 * * * 14 15 16 17 18 19 * * * * * * 20 21 22 * * * 23 24 25 * * * the 800 degrees centigrade temperature? That was predicted by the research laboratory studies and confirmed by the test done at Johns Zinc Company before the design of Monsanto's incinerator. (Whereupon, there was a change of reporters.) 3426 WATER PCB-SD0000075561  1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q With temperatures below 800 degrees Centigrade it was found, was there not, a potential for the development of dibenzofurans? A No. Q You did conclude that temperatures below that amount could result in vaporization to the atmosphere of the PCBs? A Yes, sir. Q And there were other severly toxic oxygen-containing materials that could bedeveloped? A That is what the statement says, yes. Q Would you be kind enough to go down to the "Vapor" section on Page 2? A I have it. Q And it references "vapor generation should be reduced by limiting the heating of PCBs to the lowest temperature required for the process," correct? A I see that, yes. Q With regards to the die cast operations, there was the potential for the fluids to come in contact with hot surfaces and vaporize, wasn't there? A Yes, under "Unplanned Conditions," yes. Q And then for Item Number 2 where it references, "The vapor handling facilities should be designed and maintained to assure no vapors escape to the 3427 WATER PCB-SD0000075562 1 1 atmosphere." 2 In a die cast facility that wasn't a 3 recommendation, was it? 4 A I don't recall that. I do not. 5 Q If we turn to the last page there is some reference to 6 7 solids. In this context, can you tell me what the word "solids" means? 8 A Well, I don't mean to be facetious, but -- 9 10 Q Is anything other than the liquid itself -- A Right. 11 Q -- or the gases, the vapors from that liquid? 12 13 A This includes rags, dirty cloths, sawdust, kitty litter, whatever was used to absorb PCBs. 14 Q Okay. And your recommendations at that time were, for 15 16 these kinds of solids, would be that if they're contaminated with PCBs they must be segregated from 17 other plant solid waste,correct? 18 A Yes. l9 Q Now, I don't recall that information appearing on any of 20 your 312 literature. It didn't, did it? 21 22 A Not as such, no. Q Nor did it appear on your F-9 literature? 23 A That is correct. 24 Q And then with regards to Item Number 2, "Disposal may be 25 made in a properly operated landfill which is not 3428 WATER PCB-SD0000075563  1 located near any water system," correct? 2 A That is correct. 3 Q You did not make any recommendations to your customers 4 as to where landfills should or should not be if you're 5 disposing of PCBs, correct? 6 A Well, the reference was indirect. It had to be approved 7 by the local authorities for the disposal of industrial 8 chemicals. 9 Q Well, except in 1970 there weren't very many chemical 10 landfills. They were all just generally landfills, 11 weren't they? 12 A Well, I don't know that. No, there were chemical 13 landfills. 14 Q And was it important that PCBs only be put in chemical 15 landfills? 16 A Certainly. 17 Q You never put that on any of your product brochures, did 18 19 you? A Oh, I recall a reference, yes. 20 Q And what year? 21 A Oh, I don't recall a specific year, but it seems to me 22 that that was so common a thought that it might have 23 existed for several years. 24 25 Q All right. You make reference here that, "Ordinary burning of these materials must be avoided. Steel or 3429 WATER PCB-SD0000075564 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 copper wastes may be reclaimed in high-temperature furnaces," correct? A Correct. Q Now, with regard to the information that was being provided to your customers during the time you sold 312 fluid, you did not tell them of this information, did you? A Would you help me with the time frame again here? Q Sure. Up until -- when did you go to the terphenyl, 1971? A '71. Q Right. So any time that you were selling the 312 PCB fluid this was not information that was told to your customers, was it? A It was information that would have been passed on to the customer during discussions about disposal with the Monsanto representative starting in early 1970. Q If those discussions, in fact,came about? A And they generally did, yes. Q Now, with regards to wastes. In the die cast business you understand that there is scrap material that is available for reuse in the company, zinc or aluminum? A That's my understanding, yes, sir. Q And the zinc and aluminum can come in contact with hydraulic fluids that may have leaked in the area? 3430 WATER PCB-SD0000075565  1 A That's my understanding. i 2 Q And it is not appropriate to put that material into the 3 4 furnace for meltdown of the material so that it can be reused, is it, with PCBs on it? 5 A Well, I don't know enough about the details of the 6 7 process. I don't know the temperatures achieved during the remelting. I do not know if any degreasing of this 8 material takes place before its reprocessed, so I can't 9 answer your question. 10 Q Okay. Then you reference on Item Number 4, "Steel drums 11 which contained PCB should not be reused for any other 12 13 material." 1 Can you tell me at the time that you sold either 14 the PCB 312 or the PC -- polychlor -- PCT -- 312-A, you 15 never told your customers that, did you? 16 A Not directly, no. 17 Q Did you have hooding on your barreling operation of 18 PCBs? 19 A What is that? I missed that. 20 Q Hooding. Hooding over the barrels when you're handling 21 PCBs to take away vapor. 22 A Oh, oh, yes, when we filled them or used the drum we had 23 a fuel-collecting hood, yes. 24 Q You did not tell your 312 customers about the importance 25 of hooding, did you? 3431 WATER PCB-SD0000075566 w 1 A No, because that's up to them how to decide how to 2 control vapors, worker exposure and entry into the air. 3 Q Those kinds of standards can be found in published 4 references about how to handle PCBs by the -- and I 5 think -- help me out -- the American Hygenist 6 Association? 7 A There is an exposure level for workers based on the 8 eight-hour working day published by the American 9 Congress of Governmental Industrial Hygenists. 10 Q And was Monsanto's expectation that your customers would 11 follow those guidelines for vaporization in the plant? 12 A That's right, follow those guidelines for worker 13 exposure. 14 Q Right. So that if we have people working with the PCB 15 16 fluids in our plant, you would expect us to follow those guidelines for exposure? 17 A Certainly. 18 Q With regards to that subject, during the period of time 19 you sold us 312 fluid, you never told us there were PCBs 20 in the first place, did you? 21 A I don't -- no, I don't believe that's necessarily 22 correct. Some time during the discussion with the 23 marketing people when the fluid was initially introduced 24 25 into the system, and following that, it's reasonable to believe that a thorough discussion was held about the 3432 i WATER PCB-SD0000075567 1 safety of this material and the levels of exposure that 2 would have to be maintained. No customer would buy a 3 fluid like this blindly. 4 Q Mr. Papageorge, you have not seen one Monsanto document 5 addressed to your customers telling them that the 312 6 7 fluid contained PCBs during the period of time that your company sold the 312 fluids, isn't that true? 8 MR. RUNNING: Your Honor, I object to the 9 10 premise of the question. Plainly false. And we've gone through those exhibits. Mr. Carlson is representing as 11 a fact something, if he just showed a label, he'd know 12 13 is untrue. THE COURT: I don't recall -- you mentioned 14 312 -- 15 16 MR. CARLSON: That's right. THE COURT: -- or F-9? 17 MR. CARLSON: 312. 18 * 19 THE COURT: Well, I think you better rephrase the question. 20 MR. CARLSON: Okay. 21 22 THE COURT: Assumption rather than a fact. MR. CARLSON: There is. Let me do this in a 23 different direction. 24 Q During the time your company sold 312 product in the 25 market, was there any label, not your environmental 3433 I WATER PCB-SD0000075568 1 sticker right now, but any label that was used during 2 that time which told the customer that the product 3 contained PCBs? 4 A The labels in use refer to chlorinated hydrocarbons, 5 which is the broad family that includes PCBs. 6 Q And if one wanted to -- Strike that. There's a whole 7 range of standards applicable to vapors of the different 8 kinds of chlorinated hydrocarbons, aren't there? 9 A True. 10 Q Do you have Exhibit 38 before you, sir? 11 A I have it. 12 Q And on Exhibit 38, first of all, it's a two-page 13 document, the first page, a January 25, 1971 memorandum? 14 A Yes. 15 Q And attached to that is a January 25th -- Strike that. 16 The memorandum itself, one is a list of who's going to 17 get the information, and the second is the information 18 itself? 19 A Yes. 20 MR. CARLSON: I'd off Exhibit 38, Your Honor, 21 22 as information that's been provided by Monsanto in this case. 23 MR. RUNNING: Your Honor, this is already in 24 evidence. We used it in direct examination. 25 THE COURT: All right. If not previously 3434 WATER PCB-SD0000075569  *1 received, it's received now. 2 MR. CARLSON: 3 Q The subject of this is the "Pydraul Reformulation Leter 4 to Customers?" 5 A It is. 6 Q And if we look in the middle of the second paragraph 7 there is reference to the fact that the company wanted 8 the old formulations to be sold first. 9 A There is. 10 Q And Mr. Running had asked you some questions, I believe, 11 about whether or not customers, if they wanted to 12 13 purchase new formulas instead of the old, you would have sold it to them, correct? 14 A That is correct. 15 Q There was never any recommendation made to customers to 16 purchase the new formula and not buy the old, was there? 17 A No. 18 Q And with regards to the last paragraph of the 19 memorandum, it also references the fact that the company 20 wanted to ship the new formulations to the customer only 21 after the old formulations had been sold out of 22 inventory? 23 A Well, those aren't the words shown here. Q That's -- A There is a preference stated, and then mentioning that 3435 WATER PCB-SD0000075570  1 exceptions will be made, or words to that effect. 2 Q And during this period of time there was an 3 4 understanding by the company that at least some of the PCBs in the old formula would get into the environment, 5 isn't that true? 6 A If it's mishandled, certainly. 7 Q Even if it's not mishandled. In a die cast facility, if 8 some got onto some molten metal, you'd have 9 vaporization? 10 A There's some vaporization, and it's hoped that that 11 vaporization would be contained. 12 Q But in the real world you knew that in die cast 13 companies they weren't putting all their die cast 14 machines for vapor, didn't you? 15 A That I didn't know. I don't know what type of 16 ventilation was applied to the building, whether the 17 material was captured or any of the details. 18 Q And you knew that there was at least a potential for 19 water and the PCBs to mix in some circumstances? 20 A In some, yes, sir. 21 Q And you knew there was a potential for some PCBs that 22 were disposed of, even in landfills, to end up in the 23 enviornment, didn't you? 24 A We would hope not, not if the proper landfill was used. 25 Q But you do acknowledge that there was that potential for 3436 WATER PCB-SD0000075571 i 1 the environment to receive some of the PCBs you 2 continued to sell, isn't that true? 3 A If proper control measures weren't taken the potential H4 is certainly there, yes. 5 Q Do you have Exhibit Number 42 before you? 6 A I do. 7 MR. CARLSON: And Exhibit 42 are records, Your 8 Honor, which shows it has been received in evidence. 9 Q I would like to have you, if you would, and I don't want 10 to belabor this point. We've gone through this 11 information before. But I do want to discuss with you 12 the finding of 1242 outside a number of locations. Do 13 you see the particular chart that I'm making reference 14 to? 15 A Well, I have two charts here. 16 Q Okay. Would you be kind enough to look at the STR 17 document 004452? 18 A I have it. 19 Q And with regards to this document we find, for example, 20 the Delaware River plant. Whose plant was that? 21 A That's Monsanto's plant in Bridgeport, New Jersey. 22 Q Let's go down, and look at -- we have Anniston. 23 National Cash Register in Portage, Wisconsin. Do you 24 see that? 25 A I see it. 3437 WATER PCB-SD0000075572 * 1 Q And 1242 was found in the water? 2 A Yes. 3 Q And then there's a whole series of companies underneath 4 that, including Appleton Coated Paper, General Motors, 5 General Motors in another plant, Ford, Johnson Motors 6 and Wisconsin Steel. Do you see all of that? 7 A I do. 8 Q Does this mean that all of these companies were not 9 10 handling your PCBs appropriately? They were all handling them wrong? 11 A Not necessarily. The presence of that 1242 type PCB in 12 13 the water near that plant could well reflect an accident that happened rather than a deliberate dumping or a 14 wrongful act. 15 Q Do you think each one of these companies had an 16 accident? 17 A Well, I could speak for Monsanto. Accidents did happen. 18 19 I cannot speak for the others listed there, but it's very likely that accidents in the past did happen. 20 Q As a matter of fact, also in the past not everyone's 21 22 employees always do exactly what you want them to do all the time either, do they? 23 A That's probably very true. 24 Q Okay. With regards to the 1242 fluid -- Strike that. 25 1242 PCBs we also find it's occurring in Stevensville -- 3438 WATER PCB-SD0000075573 1 or I'm sorry, Steubenville, Ohio and Bedford, Ohio and 2 Chicago, Canton Ohio, Christy Park, I guess that is, 3 U.S. Steel, General Electric. General Electric didn't 4 have any 1242. 5 The point being that you can have PCBs being 6 released in the environment as a result of their normal 7 use without a company mishandling them, correct? 8 A This is possible, yes. 9 Q And it's that kind of escape to the environment that can 10 occur for the PCBs that you folks continued to sell even 11 though you had decided, and had new formulation 12 available, isn't that also true? 13 A I'm confused by the question. This implies that the 14 PCBs found were dumped the day before the sample was 15 taken. 16 Q No, no, no. What I'm saying is, what my point is, that 17 you can't control all end uses of the product perfectly, 18 can you? 19 A If you use the word "perfectly" I have to answer no. 20 The intent is to keep the amount to a level that will 21 not harm the environment. 1 22 Q But knowing that you can't, and you don't live in a 23 perfect world, if you wanted to keep PCBs from getting 24 into the environment, the way to do that, after you have 1 25 the new formulation, is just to take back the old stuff 3439 WATER PCB-SD0000075574 that you have in your warehouse, eat the loss, and sell the new product, right? A I don't buy that. Q Okay. A There are engineering ways to control. Q Do you have Exhibit 823 before you? A I have found it. Q And Exhibit 823 is what, sir? A 823 is a Monsanto memorandum dated December 8, 1972 authored by P.W.. Gann addressed to C. Paton. The 11 subject, Therminol FR Conversion Project. 12 13 MR. CARLSON: Your Honor, I would offer Exhibit 823 into evidence.part of the Monsanto documents 14 they produced. 15 16 MR. RUNNING: Your Honor, if I could just have a second. No objection. Your Honor. We would like 17 to check just to make sure it belongs together, but it 18 19 doesn't look like there's a problem. (Change in reporters.) 20 21 22 23 24 25 3440 WATER PCB-SD0000075575 1 2Q 3 4 5 6 7 8 9 10 11 12 13 14 15 Q 16 17 A 18 Q 19 20 21 A 22 Q 23 A 24 Q 25 A MR. CARLSON: With regards to Exhibit 823 -- THE COURT: Excuse me. Did you want to check that before -- MR. RUNNING: No, no. I am just saying, if we could go back later and see if there is a problem -- I don't think there will. There are several memos at the back that are not obvious that -- There are several memos in the back of the document that it's not obvious belong with the document, but they may very well. THE COURT: All right. Under those conditions, received without objection. MR. CARLSON: This particular report -- First of all, the memorandum is dated December 8, 1972? It is. And it's regarding the closing -- the closing report on the Therminol FR conversion project? Or, that's the document that's attached to the memorandum? Yes. And Therminol was a PCB fluid? Yes. And FR stands for fire-resistant? Yes. 3441 WATER PCB-SD0000075576  1Q 2 3 4A 5Q 6 7 8 9A lO Q 11 A 12 Q 13 14 15 A #16 Q 17 18 l9 A 20 Q 21 22 A 23 24 Q 25 A And conversion project had to do with getting Therminol out of companies' -- or, out of your customers' machines, correct? Yes. And if we look at the third -- Let's see. Take a look at the -- Well, let's look at the third page, the table of contents, to start with. We have "Objectives And Results," is one category? We're talking about the table -- Yeah, the table of contents, the third page. I think I found it, yes. Okay. And there is only three things referenced, "Objectives And Results, Scope Of Conversion Team Activities," and then an "Addendum index"? Oh. I see it now, yes. Okay. Would you then be kind enough to turn to the next page, which is the report which states "Objectives" and "Results"? I found that. And with regards to the first objective, would you be kind enough to read that for us? I would like to. I haven't seen this since it was published, so -- Okay. Familiarize yourself with it then. I have read the first objective, yes. 3442 WATER PCB-SD0000075577  1Q 2 3A 4 5 6 7 8 9 10 11 12 l3 Q 14 15 16 17 18 19 A 20 Q 21 A 22 Q 23 24 A 25 Q Would you be kind enough to read it out loud for us then. "Search out and contact Therminol FR" -- And it's the footnote reference. The footnote says, "In this report, the term FR refers to the Therminol FR series of heat transfer fluids based upon the polychlorinated biphenyl fluids," parentheses. "PCBs," close parentheses. -- "users to assure awareness of the PCB food and environmental issues and to encourage the voluntary termination or further use of the FR fluids, and assure acceptable disposal of the FR fluids." And then on the right-hand side -- Well, let me just ask you a couple of questions about that. First of all, when reference is made to "encourage the voluntary termination or further use of the fluids," that means getting the fluids out of the systems; doesn't it? Yes, on the part of the user. Right. Um-hum. And it was your company's goal to get the fluids out of those machines; wasn't it? Yes, especially in food-related uses. And then on the right-hand side, for the "Results," 3443 WATER PCB-SD0000075578 1 2 3A 4 5 6 7Q 8 9A 10 11 12 Q 13 14 15 16 A 17 Q 18 19 20 A 21 Q 22 A 23 24 25 Q would you be kind enough to read the first sentence to us? "All U.S. customers known to have FR fluids received a minimum of one phone call and confirmation letter in addition to the formal Monsanto policy and announcement letters." Now, who was making these phone calls to the customers? It would be the field salesman, and if he didn't do it, Mr. Gann, the author of this report, would do it for him. In the case of a Pydraul fluid, if the same program had been used for Pydrauls, it would have been Mr. Damiani who would have made the phone call, assuming he was the salesman at the time? Certainly. And then if we go further down on this particular section, do you see the sentence that begins, "Additional information"? I see it. Would you be kind enough to read that for us? "Additional information relative to conversion status and return of FR fluid to Monsanto is contained in the Proj ect Log and Return Notice Register." Now, when it references the "conversion status" and 3444 WATER PCB-SD0000075579 1 2 3 4A 5 6 7Q 8 9 10 11 12 A 13 14 15 16 17 18 19 20 Q 21 22 A 23 Q 24 ' 25 "return of FR fluid to Monsanto," was Monsanto asking the customer to send back the PCB fluids at that time? No, they were offering the available service to incinerate. The customer could send it elsewhere if he had a proper place to go with it. I see. And was this part of the motivation -- Strike that. Was that one of the reasons for the phone call, that was to see to it that your customers took this step? The phone call was to make certain that the customer understood the environmental issue and the need to keep these PCBs out of food -- food and animal feed, and so on. That is the primary purpose of the phone call. The availability of a disposal service by incineration was communicated as something that we thought was a big help to many customers who didn't know where to go with their waste material. I see. This particular report was drafted December 1 of 1972? That's the date of it, yes. Now, by this time in 1972, with regards to Pydraul users, you had not told them that they should incinerate their Pydraul, had you? 3445 WATER PCB-SD0000075580 i * 1A 2Q 3A 4 5 6Q 7A 8Q 9 10 11 12 13 A 14 Q 15 A 16 17 Q 18 19 20 21 22 A 23 Q 24 25 By '72? Right. No, they were -- they were aware of the availability of the Monsanto incinerator by '71 at the latest. Yes. Urn-hum. Pydraul 312 users? Yes, sir. Incineration service was available. Well, we will get to that. With regards to this program -- And by the way, that raises another interesting point. And that is, with this program the customers were told that they should drain their machines; weren't they? The Therminol program? The Therminol? Yes. They were encouraged to drain their machines. They were not told to drain them. And then, if we take the next sentence, which references -- it's, HAs far is known, all Monsanto plants and warehouses have returned all PCB-containing fluid to Sauget"; did I correctly read that? Yes. So for these fluids that were in the warehouses of Monsanto, you did not continue to sell them to your customers, you took them back into your own facility? 3446 WATER PCB-SD0000075581 i 1A 2Q 3 4A 5Q 6A 7Q 8 9 10 11 12 A 13 Q 14 15 16 A 17 Q 18 19 20 A 21 Q 22 A 23 24 25 For this product line, yes. If we go on to the next page, we see the second obj ective? May I read it? Surely. I have read that page. Okay. The Objective No. 2 is stated to be, "Avoid the creation of unsatisfactory customer relations which may lead to future damage suits or claims against Monsanto as a result of Monsanto's FR sales termination policy," correct? It does say that, yes. And then on the "Results" side, it was found, was it not, that the customer aggravation remained relative -- relatively low during that project? That's what it states, yes. And then in the second paragraph under the "Results," about halfway down, you see the sentence beginning, "Some of the older heat transfer systems"? I see it. Would you be kind enough to read that for us? "Some of the older heat transfer systems were still using Aroclor fluids. The Monsanto 'policy' mailings did not alert customers that the Therminol FR," parentheses, "PCB," close paren, "issue also applied 3447 WATER PCB-SD0000075582  1 2 3 4 5 6Q 7 8 9 10 11 12 13 A 14 Q 15 16 17 A 18 19 20 Q 21 A 22 Q 23 24 A 25 Q to Aroclor. Another point of possible confusion in their mind is that some customers used the Aroclor and Therminol FR fluids in hydraulic applications and never mentally connected alerts on heat transfer subjects to these applications." And then the memorandum goes on further and states, "It is known that many mailings of the December 15, 1971, letter which were addressed to corporate or purchasing officers never penetrated to the plant operating personnel, engineering or maintenance, where real application understanding existed," correct? It does say that, yes. The objectives go on, and would you turn, I think. two pages further and look at the Objective No. 4? And would you be kind enough to read that for us? Objective 4. "Develop a documentary file on each customer, including telephone notes and correspondence." Now, again, Therminol fluids are PCB fluids, correct? Some of them. Right. This project pertained to the PCB Therminol fluids? Yes. But this project did not pertain to the Pydraul 3448 WATER PCB-SD0000075583 1 2A 3Q 4 5A 6Q 7 8 9 10 11 12 13 14 15 16 17 Q 18 19 20 21 22 Q 23 24 A 25 Q hydraulic fluids or PCBs, did it? It did not. These customers were handled differently than the Pydraul customers? Yes. It's a different application. Would you be kind enough to go further into the document. THE COURT: We're going to have to take a break. MR. CARLSON: Okay. (Recess had.) THE COURT: Sorry. We got delayed. I had a long distance telephone call. We will resume the cross-examination of Mr. Papageorge. MR. CARLSON: Thank you, Your Honor. MR. CARLSON: Mr. Papageorge, bear with me. I know we have a lot of material, but we will see if we can't get through it. THE COURT: You know, by July. MR. CARLSON: By the end of this evening. Before you on the right you have an Exhibit 933? I have it. And you'll recognize that as a Therminol conversion 3449 WATER PCB-SD0000075584 1 2A 3Q 4 5 6A 7 8 9 l0 Q 11 12 13 14 15 16 17 18 19 20 21 22 23 Q 24 25 bulletin? That's the title, yes. Do you recall that document as being a bulletin that was created telling the folks making the conversion how to go about making a conversion of Therminol? It does. MR. CARLSON: All right. I would offer Exhibit 933 into evidence. Your Honor. MR. CARLSON: At the time -- THE COURT: Oops. MR. CARLSON: I am sorry. MR. RUNNING: Just a second, Your Honor. I object on the basis of relevance. Your Honor, not on the authenticity of the document. But I would at this point -- We have had a lot of questions about Therminol, and if Mr. Carlson has a point, I think it should be made more quickly than this, so I object. THE COURT: It's received over objection. I think it's pretty obvious the reason why he's bringing these out. MR. CARLSON: And, Mr. Papageorge, your company did not send comparable technical information to owners of die cast machines on how to properly drain the die cast 3450 WATER PCB-SD0000075585 1 2A 3Q 4A 5Q 6A 7Q 8 9 10 A 11 12 13 14 15 16 Q 17 18 19 20 21 22 23 24 Q 25 machines, did they? At what point in time? At any time? At any time? Yes. That is correct. If you look right underneath there there is Exhibit 808. Would you be kind enough to identify Exhibit 808 for us? This is a Monsanto memorandum dated September 22, 1971, written by J.J. Roder to L. Durnstorff, titled "Therminol FR Returns." MR. CARLSON: And I would offer Exhibit 808 as one of the Monsanto documents, Your Honor. MR. CARLSON: Would you be kind enough to read the STR number. THE COURT: You want me to rule? MR. McDEVITT: He's going to read the number. THE WITNESS: STR 012111. MR. RUNNING: No objection. THE COURT: So received. MR. CARLSON: Do you recall, sir, that your company, for the Therminol users, that is, the PCB Therminol users, 3451 WATER PCB-SD0000075586  1 2A 3Q 4 5 6A 7Q 8 9 10 11 12 13 14 Q 15 16 17 A 18 Q 19 20 A 21 Q 22 23 24 25 A your company was waiving incineration costs for them? As shown by this memorandum, yes, sir. The memorandum provides that disposal charges and return freight are to be waived for these FR returns, correct? That is correct. Let's go on. Do you have Exhibit 1080 before you? THE COURT: 1080 what? MR. CARLSON: 1080. One-zero-eight-zero. THE WITNESS: I have it. MR. CARLSON: Just one -- This is a defendant's exhibit that was received, Your Honor. MR. CARLSON: And I think I'll just summarize it quickly. This is an October 14th, 1969, letter to an individual at the Wisconsin Bureau of Fish Management? That is correct. And then the next letter is October 13th of 1969 to Fred Lee at the University of Wisconsin? That is correct. And in the second page of that letter your company makes reference to the interim report on some studies that were underway regarding Aroclors? The second paragraph? Yes. The second paragraph? 3452 WATER PCB-SD0000075587  1Q 2A 3Q 4 5 6 7 8 9 10 A 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Yes, sir. Yes. Yes. "The studies underway include our Aroclor 1242, 1254 and 1260 which are being fed at levels of 1, 10 and 100 parts per million in the diet." And then, "In a three generation rat reproduction study with Fo parental animals mating for first or second litters, there has been no effect on live birth and 24 hour survival indices of Fla litters," correct? That is correct. (Switch in reporters.) 3453 WATER PCB-SD0000075588  1 Q Did you tell the folks in Wisconsin that you had adverse 2 results in the bird studies when you got them? 3 MR. RUNNING: At a later time? 4 MR. CARLSON: Yes. 5 THE WITNESS: At a later time, certainly. 6 MR. CARLSON: 7 Q In correspondence to them? 8 A I don't remember any specific document, but I do know 9 10 that representatives of the State of Wisconsin universities and regulatory agencies were made aware of 11 this. In fact, they attended the meeting in Duluth, 12 Minnesota where it was described to the audience. 0 13 Q That, in fact, the PCB 1242 -- Strike that -- the 14 Aroclor 1242 was found to have a damaging effect on the 15 ability of the chicken to reproduce? 16 A Yes. 17 Q Would you be kind enough now to look at the exhibit, 18 hopefully, on the top of the stack of 465? 19 A I have it. 20 Q Okay. The document itself is a "PCB Presentation to the 21 Corporate Development Committee." 22 A That's the title. 23 MR. CARLSON: And my records do not indicate 24 that it's been received, Your Honor, so I'm going to 0 25 offer it into evidence as one of the Monsanto documents. 3454 WATER PCB-SD0000075589  1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: What was the number? MR. CARLSON: 465. MR. RUNNING: I don't object to the document. I'm not sure if we used it or not. Your Honor. THE COURT: So received. MR. CARLSON: Q The date of the document handwritten in the upper right-hand corner is November 17th of 1969? A That's what's written in the upper right-hand corner, yes, sir. Q And as of that particular date, November 17, 1969, and it was as of November of 1969 from the standpoint of reproduction, that PCBs were regarded as being highly toxic to birds, were they not? A Yes, that's the third paragraph, yes. Q Right. And in the year 1969 you did not tell your 312 users that information, did you? A Not in any general mailing, no. Q If we go further down in the document there's reference to this being a serious matter. Do you see where I'm making reference to? A I do. Q And would you be kind enough to read that for us? A "This is a serious matter, not only from the pollution viewpoint, but also because of the $22 million worldwide 3455 WATER PCB-SD0000075590 1 customer business involved, with resultant gross profits 2 of $10 million and a net investment of approximately $9 3 4 million. In addition, there could be possible adverse legal and public relations problems leveled against 5 Monsanto." 6 Q "Legal and public relations problems leveled against 7 Monsanto" Would be a kind of pressure to discontinue 8 manufacturing PCBs, would it not? 9 A It would. Again, I don't know what you mean by io pressure. It's not the gun-at-the-head approach, if 11 that's what you mean, but it is a consideration that's 12 l3 taken in all the businesses in terms of what image are your actions reflecting. 14 Q The second page of this has an agenda? 15 A It does. 16 Q And as before we find that one of the departments 17 involved is the Law Department of Monsanto? 18 A Certainly. l9 Q In these presentations from the Legal Department -- let 20 me back off and do it a different way. 21 22 It is true, is it not, that you as a corporate executive have been counseled that in drafting documents 23 they should be drafted in a way -- Strike that. They 24 25 should be drafted keeping in mind that they may be discovered during the course of litigation? 3456 I WATER PCB-SD0000075591  1 A I've never been instructed with that kind of wordage, 2 no, sir. 3 Q Have you been advised that, in fact, documents that are 4 drafted may be discoverable in litigation? 5 A Again, I think the advice I get is to be truthful in 6 what you put on paper. 7 Q I understand that. What I want to find out is when is 8 the first time that you ever became aware of the fact 9 10 that someone making a claim against your company would have the right to see your internal corporate documents 11 that are relevant to the issue? 12 A I personally? When I was first involved with the first 13 lawsuit involving PCBs. 14 Q Which was going back to what, the early seventies? 15 16 A 1974. Q Okay. 17 A Something likethat. 18 Q Okay. If we turn to the third page. I think I'm on the 19 third page. In the wrong direction. Sorry. 20 We find, first of all, that the Medical Department 21 22 had been actively engaged for the last eighteen months regarding information that they were developing on PCBs. 23 A You have paraphrased it, but that's the essence, yes. 24 25 Q And then there's a reference towards the bottom third of that particular paragraph that "some toxicological and 3457 WATER PCB-SD0000075592 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 analytical test programs in excess of $100,000 are going to be spent." Do you recall that? A It does say that, yes. Q Now, the next page gives us some information regarding the Monsanto worldwide Aroclor business as of that time, doesn't it? A It does. Q This is, again, back in November of1969, correct? A Correct. Q And you weremaking 104 millionpounds of PCBs a year? A That's worldwide, yes. Q And the gross sales per year is $22 million? A Yes, sir, at that time. Q And the gross profits at that time were $10 million? A Yes, sir. Q How many years had Monsanto been making these kinds of profits on PCBs? A Oh, I don't know. I don't know through the years, sir. Q Okay. A I have no idea. Q You started making PCBs back in thethirties? A Yes, sir. Q You continued to make PCBs through what year? A 1977. Q Now, if I can move ahead a little bit. You'll find in 3458 WATER PCB-SD0000075593 1 2 3 4 5. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about three or four pages there's a reference to a slide or slide presentation that was made. I think it's on Page 8 of the document. Do you see where I'm making reference to? A Yes. Q Now, in looking at this, the alternatives are the same alternatives that you and I had discussed before when we looked at a graph, do you recall that, or series of grafts? A We looked at a document that discussed three alternatives. Q Right. A I think the wording is a little bit different, Alternative 3. Q Okay. Alternative 1 was the do nothing? A That is correct. Q And it's still the donothing? A I'm sorry? Q And, I mean, the do nothing in the other document we discussed, and it's also -- Number 1 is the do nothing? A If I remember correctly, you are correct. Q And under that particular alternative it's noted that, "This is also the quickest route to being forced out of the business," correct? A That is the author's opinion. 3459 WATER PCB-SD0000075594  1 Q Okay. So that by doing something it was perceived that 2 you'd be able to stay in the PCB business for awhile? 3 A Doing the right thing, yes, sir. 4 Q Alternative Number 2. If we take a look at about in the 5 middle of the section where it references "All Aroclor 6 7 products are not serious pollutants - many degrade; there is too much customer/market need, and selfishly 8 too much Monsanto profit to go out." Do you see what I 9 make reference to? 10 A I do. 11 Q And with regards to the degrading phrase -- "degrading 12 13 study" doesn't sound quite right to me for some reason -- the studies on biodegradation with regards to 14 those studies in November of 1969, they hadn't been done 15 yet or the work completed, had they? 16 A That is correct. 17 Q So that when you talk about "All Aroclor products are 18 19 not serious pollutants -- many degrade," what studies is that author making reference to? 20 A No studies. He was basing that statement on a strong 21 opinion that the research scientist had expressed. 22 Q That the lower chlorinated were going to degrade? 23 A Were probably very likely to degrade, yes. 24 Q Leaving the fives and sixes and higher? 25 A That is the scientist's opinion, yes. 3460 WATER PCB-SD0000075595  1 Q So that at that time the scientist's opinion was 2 sufficient enough that you, that is the company, felt 3 4 the studies would bear out those opinions? A Yes. 5 Q So that at that particular time for the Aroclor 1242, 6 7 you could have told your customer that the 5-chlorine PCB would still remain even though the lower chlorinated 8 PCBs may degrade? 9 A In hindsight one could say that, yes. 10 Q Well -- 11 A We didn't know enough about the biodegradation phenomena 12 13 to describe everything that would take place, and we didn't want to go communicating opinions that had not 14 been supported by good data. 15 Q The good data you had was that the 5-chlorinated PCB was 16 the one that was showing up as peaks on these various 17 enviornmental studies? 18 A That is the solid data, yes, sir. 19 Q Correct. And it was also solid data that your 1242 PCB 20 had 5-chlorine PCBs in it? 21 A True, but we didn't know how those five chlorines, along 22 with the 1, 2 and 3's would withstand the environment. 23 We didn't know that. It is possible during degradation. 24 25 There's another theory that scientists had. It is possible that with degradation of the lower, the 3461 WATER PCB-SD0000075596 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 bacteria get acclimated and could also consume the fives that are associated with all those lower chlorine PCBs. That wasn't established yet. Q There was no study that -- Strike that. Can you point to me one document that shows that even as a hypothesis? A I don't know that anybody made a treatise out of it or a document, no. Q The third alternative is the -- Strike that. The third alternative was to go out of the 1254 and 1260 business. A That is what was considered. Q If we go on to the next page. What I'd like to do is reference the alternative courses of action. Number 4 you folks indicated that you wanted to "develop specific action plans tailored to each business group and each customer/market situation to 'clean up' the mess," correct? A That is what it says, "clean up" in quotes. Q Okay. With regards to the die cast industry for the smaller customers, who had the responsibility of developing that course of action? A The responsibility falls on the director of the business group, the ultimate responsibility. Q And was the director of the business group that had that 3462 WATER PCB-SD0000075597 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 responsibility provided with studies showing the ways that PCBs could enter the water in die cast operations? Q Certainly.I'm certain he was, yes, sir. Q I haven't seen any such studies, have you? A Well, it's not a formal document, no. Q I'm sorry? A This is information that's communicated from the field people to their supervisor in St. Louis, in turn to the director of marketing, and from there to the director of the business group. Q I see. And was the director of the business group made aware of the fact that the 42 Aroclor was being found outside a lot of die cast operations that you and I discussed in that previous document? A I would describe that as some die cast, not a lot. Compared to the thousands in use, that's not really a lot. Q But every one that was looked athad it? A No, there was some samples takenthat had zero detectible, near -- Q Of die cast -- A -- near factories, industrial sites. Q I'm talking about die cast operations. A Some die cast operations were included, yes, sir. I don't remember exactly which ones now. 3463 WATER PCB-SD0000075598 1 2 3 4 5 6 7 8 9 * 10 11 12 * 13 14 15 * 16 17 18 19 20 21 * 22 23 24 25 Q The fact of the matter was that most die cast operations had 1242 in the waterways that were near their plants, the ones that were studied? A I have no data to tell me that. Q We'll get back to that. Let me go on and discusswith you Page 12. If you'd be kind enough to turn to that. A I have it. Q Okay. On this particular page what information is being provided? A Well, it lists the particular PCB by Aroclor description, 1242 through 1260. It refers to the U.S., the domestic market, which is the United States, and has broken it down into three categories, "Industrial, Heat Transfer and Electrical." Q And what do the numbers in each column signify? A They signify pounds. I have no way of knowing what year they are referring to here. Q All we have is that this particular composition of information was included in your November 17, 1969 report? A That is true. This could be '68 data or it could be '69 extrapolated to complete the year. I don't know. Q Okay. With regards to the Aroclor 1254 for the total, how many pounds of that were manufactured for that year? A Now, this is the manufacturing. This is sold to those 3464 WATER PCB-SD0000075599 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 three applications. Q Okay. And how many were sold total? A Nine-tenths of -- nine-tenths million pounds -- 900,000 pounds. Q Okay. And the 1260, how much of that? A 4.1 million pounds. Q And then for the 1242, how many million pounds of that was manufactured and sold in that year? THE COURT: That's two questions. MR. CARLSON: I'm sorry. Q How many pounds of the 1242 was sold that year? A Were sold to these three uses? A Yes. Q Because there's a plasticizer use that almost equals these. It's greater than -- Q Okay. A -- 41.2 million for these three fluids that are listed. Q And for these particular fluids, the 1242 was by far the fluid sold -- or Strike that. The 1242 fluid was substantialy higher than any of the other fluids, correct? A Because of the electrical use, yes, sir. Q And the 1242 fluid became a very important business to protect, did it not? A Well, important because of its value to the electrical 3465 WATER PCB-SD0000075600 9 1 industry, yes, sir. 2 Q And also important to Monsanto from the standpoint of 3 its profits? 4 A Yes, to a degree. 5 Q Would you be kind enough to turn to Page 13, which is 6 7 the following page. And here we see the "Sources of Fluids Pollution." 8 A That is the title of that page. 9 Q And there was, as the greatest intensity of pollution by * 10 Monsanto, it was thought to be the industrial fluids? 11 A Of the uses listed, yes. 12 Q Yes. Dielectrics were indirect -- * 13 A Yes. 14 Q Listed as indirect in contained systems, correct? 15 A I'm sorry. 16 Q Dielectrics were indirect and they were in contained 17 systems? 18 A Yes. * 19 Q And likewise for heat transfer? 20 A Yes. 21 Q Heat transfer fluids were the Therminol fluid that we * 22 previously talked about? 23 A Some of them were called Therminols, yes, sir. 24 Q Now, those are the fluids where you actually went out 25 and called the folks up and told them to drain their 3466 WATER PCB-SD0000075601 1 machines? 2 A We didn't tell them to drain, we suggested they drain it 3 4 from food-related/packaging-related applications. Q That you recommended that they drain their machines? 5 A Yes, sir. 6 Q Okay. And then we go down to producing plants. Those *7 are your own plants? 8 A Yes. 9 Q And that was the only other direct method of PCB * 10 contamination for the products or for the kinds of 11 properties listed here? 12 A That is correct. * 13 Q Would you be kind enough to turn to the next page? And 14 here we have "Fluids Customer Alternatives." Do you see 15 that? * 16 A That is the title of the page. 17 Q And on the left side there's "Area of Application." 18 A Yes, sir. 19 Q "Product of choice." 20 A That is the middle column, yes, sir. 21 Q And "Customer Options." * 22 A Yes. 23 Q The first listing is "Industrial Fluids." 24 A Yes. 25 Q And you reference Pydraul 312 and F-9 along with some 3467 WATER PCB-SD0000075602  1 2 3 4 5 6 7 8 9 *10 11 12 *13 14 15 *16 17 18 *19 20 21 *22 23 24 *25 others? A Yes. Q And then the right side, would you be kind enough to read that for us? A Under "Customer Options?" Q Yes. A "Customer could get along without us, Pydraul 312 favored. H2-0 glycol has some pollution problems. Phosphate ester route ok at present." Q Your competition did have phosphate esters available as fire-resistant hydraulic fluids as of November of 1969, did it not? A They did. Q And you had waterglycols available? A We did. Q As did your competition, correct? A That is correct. Q And as of November of 1969 it was understood that for these particular hydraulic fluids the customers would get along without the 312, correct? A That is true. Q Would you be kind enough then to turn to the next page. There's a section here on "Customer Choices & Alternatives & Penalties." A Yes, sir. 3468 WATER PCB-SD0000075603  1 Q And would you be kind enough to read to us the last 2 sentence of that paragraph? 3 A "Only in the industrial field could the customer make an 4 immediate conversion." 5 Q That was true for the die cast companies. I mean, they 6 7 could have made an immediate conversion at that time, couldn't they? 8 A Any time they wanted to, yes, sir. 9 Q All they needed was a reason to, right? * 10 A Yes. 11 Q The reason could have been if they had been told that 12 13 they had 5-chlorinated PCB that was causing damage to the environment. That's also true, isn't it? 14 A It depends on the person making the decision. That 15 16 could be a consideration. But any time he felt uncomfortable controlling, he could change. 17 Q Would you be kind enough to turn to -- it looks like a 18 19 typed 16, but a penned-in 15 somebody's written in. And, again, we look at the situation with regards to the 20 1242. We see that it was expected that the 1254/1260 21 situation was going to spread to the 1242 and 1248. 22 A Not expected. This was a situation that was considered, 23 if it spreads, these numbers would result. 24 Q And if you totalled up the numbers for the 1242 and 1248 25 fluids, you would find that there would be a loss of 3469 WATER PCB-SD0000075604 1 gross profits at $6 million. Just take 7.36 and 2 subtract out the 1.36 from higher numbers. 3 A That is the profit, yes, for the applications listed. 4 Q One of the non-industrial fluid uses was the carbonless 5 copy paper, wasn't it? 6 A Yes, sir. 7 Q And carbonless copy paper used the Aroclor 1242? 8 A Yes, sir. 9 Q The carbonless copy paper was one of the first uses of 10 PCBs that your company stopped, wasn't it, or told your 11 customer to stop? 12 A Well, I would say it was sort of in the middle of the 13 time period. Not the first and not the last, certainly. 14 Q The use of the 1242 and the carbonless copy paper was a 15 l6 use that was discontinued early in the PCB -- I want to call it scheme of terminations, but maybe that's not a 17 fair word. 18 A Can you help me in the definition of "early?" 19 Q Along about the same time that you were discontinuing 20 the 1254 and 1260 products you also discontinued 1242 21 and the carbonless copy paper. 22 A Yes, but some sophisticated research had to be done 23 first, so that took some time. As I recall, that change 24 25 occurred about the middle of 1971 worldwide, Europe and America. 3470 WATER PCB-SD0000075605 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 * 22 23 24 25 Q The reason the 1242 was discontinued in the carbonless copy paper is because it was understood that burning of the paper did not destroy the PCBs, that just vaporized them? A That's one of the ways it got into the atmosphere, yes. Q And it was the 5-chlorine PCB in that carbonless copy paper that was perceived to be a problem, wasn't it? A Well, I'm having some problems with the word "problem." There were samples taken near paper plants that recycled paper, and PCBs were found in the paper plant effluents that were attributed to the carbonless copy paper. So if presence is a problem, that's one consideration. If PCBs in falcons is a problem, that's a different kind. Q Except that the raw, if they're all PCB, 5-chlorinated PCBs, the studies, and the thinking, was that this was the problem PCB, the five. Like having red marbles, and blue marbles, and yellow and green, ten different colors, there's a couple of colors that are causing that problem, right? A Well, it's a problem if you just consider mere presence. It's a problem if you consider harm. There's two different kinds of PCBs involved. Q And you also understand that your company should tell people if the PCB is going to cause harm or has caused harm? 3471 WATER PCB-SD0000075606 1 2 3 4 5 6 *7 8 9 * 10 11 12 * 13 14 15 * 16 17 18 19 20 21 * 22 23 24 * 25 A When it's demonstrated so, and the occasion comes to communicate it, this was done. Q Well, for the 312 which had the 5-chlorine PCB, even after you folks knew everything about it, 1988, 1989, 1990, you hadn't sent a letter out to those customers telling them that the PCB, 5-chlorinated PCB was in that product and caused harm, have you? A The letter was not sent out, but they knew about it. Q They did. I see. Would you be kind enough to turn to the page typed 27, and then there's a penned-in 23. A I have it. Q I think Mr. Running asked you some questions about this, that it was going to cost some money to do this particular aspect of your work. A Yes, I recall that. Q And you agreed with Mr. Running that one $1.1 million and $1.2 million is a significant amount of money. A Certainly at that time it was. Q For companies, however, money is a very relative thing, isn't it? What may be a lot of money to one person or one company may not be as much to another person or another company? A I suppose that's generally true. I'm noexpert in that. Q Well, see if we can't turn -- would you be kind enough to turn to the Monsanto annual sales report, which is in 3472 WATER PCB-SD0000075607  1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 * 25 evidence. And would you begin reading for me on Page 39, the bottom right-hand comer where it begins "At an accrued. "At the December 31, 1990, Monsanto's balance sheet included an accrued liability of approximately $120 million for the remediation of waste disposal sites." (Change in reporters.) 3473 l WATER PCB-SD0000075608  1Q 2A 3 4 5 6Q 7 8 9 10 11 A 12 #13 Q 14 A 15 l6 Q 17 A 18 Q 19 20 A 21 22 23 24 25 Would you continue? "Monsanto's liquidity, financial position and profitability are not expected to be affected materially by the cleanup costs for Super Fund and other waste disposal sites." So apparently 1.1 million takes a different -- Or, strike that. I don't have anything to ask about that. Except that the amount of money that one has is relative, isn't it, whether or not it's a lot or a little? Well, I have a problem addressing that because this report talks about 1990 and future dollars. Right. The initial report was back in 1970, and the dollars certainly are not the same. No. They are not comparable. I understand. Would you be kind enough to see if you have Exhibit 663 there, on top of the next group? I have it. MR. CARLSON: And, Your Honor, this is the same as Plaintiff's Exhibit 481. Our records show it has been received in evidence. It's also Defendant's Exhibit 1082. THE COURT: Three identical exhibits with 3474 I WATER PCB-SD0000075609 w1 2 3 # 4Q 5A 6Q *7 8A 9Q 10 11 12 13 14 15 A *16 Q 17 18 A *19 Q 20 21 A * 22 23 24 * 25 three different numbers? MR. CARLSON: Afraid so. Your Honor. MR. CARLSON: Do you have it available there? I have it. Would you be kind enough to look at the second page and the center section on "Legal Aspects"? I am looking at it. And it references that, "Although the law" -- "law is unsettled, the present general rule is that if a manufacturer knows or should know that a product of its manufacture may cause damage if not properly used, he has a duty to give adequate warning to customers and users." Do you see that? I do see it. And that was information that was conveyed to people looking at PCBs as of November 17th of 1969? Certainly, as well as every other chemical we made. We have to go on to the letters again. You have there Exhibit 1009. I have it. MR. CARLSON: While we're looking at it, Your Honor, this is a document that's been received. It's the same as the Defendant's -- I am sorry, this is Defendant's 1009, and it's the same as our Exhibit 3475 WATER PCB-SD0000075610 *1 2 3 *4 5Q 6 * 7A 8Q 9A lO Q 11 12 A 1 13 Q 14 15 * 16 A 17 18 * 19 Q 20 21 * 22 A 23 Q 24 A 1 25 Q 63. This is the February 9th letter. THE COURT: Of '70? MR. CARLSON: Yes. MR. CARLSON: The only thing I would like to do is to have you take a look at the label. Do you see the label there? The mailing label? Yes. Yes, sir. And that label was created for that particular mailing? Yes, sir. And just so that I understand how it was used, when the mailing went out, they checked -- put a check on that mailing label? On a copy of the -- the envelope labels they checked off when the documents were put in the envelope, the envelope sealed and then ready for mailing. When this information was brought together to present, did you go out there -- did you personally get the mailing labels and the documents? Each and every one of them? Yes. No, sir. Okay. Do you know who did that work? Somebody on 3476 I WATER PCB-SD0000075611 1 2A 3Q 4A 5 6 7Q 8 9 10 11 A 12 Q 13 14 A 15 16 Q 17 18 A 19 Q 20 21 A 22 Q 23 24 A 25 Q the legal staff -- Oh, no. -- or somebody under your direction? No, this was under my direction, supervised by a secretary, an experienced secretary with half a dozen typists. Okay. And then for the -- I am talking about when these materials were gathered to present during the course of this litigation, not back when they were mailed out. Oh. I misunderstood your question. I am sorry. And I was thinking about another question, so I wasn't -- I don't know how these documents were assembled for submission. I see. Would you -- Do you have Exhibit 1010 also there? I found it. Would you take a look at the mailing label on Exhibit 1010. I am looking at it. You see any difference between the mailing label for 1010 and 1011 -- I am sorry, for 1010 and 1009? You mean in terms of the the wording and so on? In terms of anything. The check mark, anything? 3477 WATER PCB-SD0000075612 w 1A 2Q 3 * 4A 5 6 * 7Q 8A 9Q * 10 A 11 Q 12 * 13 14 15 * 16 A 17 Q 18 A *19 Q 20 A 21 Q * 22 A 23 24 Q * 25 They appear similar. I may be missing something, but to me they appear identical. Well, they were all typed up in the same -- same order, and so on, so it -- it would fall in the same place on the original sheet. Check mark exactly the same place? I -- It's possible. Same check mark? Why not? Same people doing it. These were procedures that were followed, were the -- Strike that. With regards to Exhibit 1010 -- just a second -- this was the letter that was sent out for the -- to give information about the F-9 product -- Yes. -- you remanufactured? Yes. Now, the F-9 product was remanufactured why? I am sorry. Was it "why"? The F-9 product was reformulated why? That's to remove the Aroclor 1248 that was at one time an ingredient. The reason for removing the 1248 was because of the -- excuse me -- somewhere between 36 and 40 3478 WATER PCB-SD0000075613 w1 2A 3Q 4 5 6A 7 8 9 10 Q 11 A 12 Q 13 14 A 15 Q 16 17 18 19 A 20 Q 21 22 23 24 A 25 percent of the five-chlorine PCB? That's the reason, yes, sir. > And with regards to this particular mailing, do you know how they selected the customers that this particular letter would be mailed to? The records for at least three years that had been gathered for the earlier February meeting -- February letter were scanned to determine which of those customers received Pydraul F-9. Okay. And then they were sent to the F-9 users? That's right, um-hum. Do you know when Monsanto -- when Stroh had last purchased an F-9 product? I don't, no. Take a look at that a little bit. In this particular situation the -- the company wanted F-9 not to be used anymore because of potential damage to the environment? Possible potential damage. And the best way to prevent potential damage to the environment by the F-9 would be to have your customers drain the machines of the F-9 product, correct? No, I don't agree with that. The best way is to keep it in the machine and don't let it get in the 3479 WATER PCB-SD0000075614 1 2Q 3 4A 5 6 7 8 9 10 11 12 Q 13 A 14 Q 15 16 17 18 19 A 20 21 Q 22 23 24 A 25 environment. Well, in the heat transfer fluids, those were contained systems; were they not? They were contained in terms of possible exposure to the environment. They were not perceived to be foolproof in terms of contaminating the food. Now, that's the other end of the system, where escape could happen into the baking -- the product that's being baked, or the potato chips that are being fried, or the package that's being made to wrap the food. And -- There is a different kind of escape there. And based on the work that had been done earlier in finding 1242 in the waterways, your company knew that industrial fluids using the 1242 and comparable Aroclors were also going to get into the waterways and get into the food chain, right? I personally don't know of any study that associates 1242 with fish contamination. But you do see studies that have 1242 in the water and -- strike that -- 1242 in the water and the five-chlorine PCB in the fish, right? Yes, but those fish are caught out in the main body of water, where 1242 is not found. 3480 WATER PCB-SD0000075615  1Q 2 3A 4 5 6Q 7 8 9 10 11 12 Q 13 14 15 16 17 A 18 19 20 Q 21 A *22 Q 23 24 25 A Would you be kind enough to see if you have Exhibit 1012 before you? I have it. THE COURT: What number was that? MR. CARLSON: By the way, with regards to where 1242 and -- THE COURT: Excuse me. What number was that? MR. CARLSON: I am sorry. 1012. THE COURT: 1012, thank you. MR. CARLSON: With regards to where aquatic life goes, one of the problems with juvenile shrimp is that although they spawn out in the sea, they come in and grow in the early stages in the bays, they come in the bays; isn't that right? Could be. I thought it was the other way around. I thought as they got a little older they went out and matured and then came back. We'll have a chance to get into that. All right. With regards to Exhibit 1012, by April 15th of 1971 your company did have a replacement fluid for the Pydraul 312? As well as other Pydrauls, um-hum. 3481 WATER PCB-SD0000075616  1Q 2 3 4 5 6A 7 8Q 9 10 11 12 13 14 A 15 16 17 18 Q 19 20 21 22 A 23 24 Q 25 When the 312A was used, the terphenyl, it was known, was it not, that -- strike that. Was any reformulation of the terphenyl itself necessary in order to make it compatible with PCBs? No, the terphenyl is terphenyl. It's not formulated. It's produced as the chlorinated terphenyl. And then when you finally went to the phosphate ester to replace the PCBs, it -- Let me back up. Your company did not advise the 312 users that the 312 had PCBs in it until you had a replacement product available that could be put right on top of it; isn't that true? I -- I don't believe that they waited that long. The knowledge of PCBs in 312 was available, and I find that hard to believe, that that knowledge wasn't known to the industrial fluid users. You do know that throughout the years earlier, if one looked at all of the product literature for the 312 product, it would simply refer to it as a chlorinated hydrocarbon, however? That was the industry standard for describing that kind of chemical, yes. Now, with regards to the terphenyl, did you have some customers that returned terphenyl for incineration? 3482 WATER PCB-SD0000075617  1A 2 3Q 4 5 6 7A 8Q 9 10 A 11 Q 12 13 14 A 15 Q 16 17 18 A 19 20 Q 21 22 A 23 Q 24 25 I don't recall any customer returning terphenyl. I don't -- I don't know. Let me go on to something else for a moment. Bear with me just a second. You have to bear with me just a second. Do you have to your right a copy -- or, do you have Exhibit 1016? I have it. And this particular exhibit is the letter of January 31st of 1972? It is. And, again, you have indicated that you are going to stop using a product, and this time is when you have stopped using what product? Polychlorinated terphenyls. By 1972 you were aware that the terphenyls could potentially be an environmental problem if you continued to use them? By 19 -- By the date of this letter we were aware that they were difficult to degrade, yes. You had not done any premarket degrading -- biodegrading studies for the terphenyls, did you? No. You used the terphenyl as a stopgap because of the pressure that was being exerted on the company to stop using PCBs, right? 3483 WATER PCB-SD0000075618 2 3 4 5 6 7 8 9 10 11 12 Q 13 14 A 15 Q 16 17 18 A 19 Q 20 21 A 22 Q 23 24 25 A MR. RUNNING: Your Honor, this line of inquiry is repetitive. THE COURT: Can't hear. MR. RUNNING: Your Honor, this line of inquiry is repetitive. We have gone through this very subject last week. THE COURT: It seems like it. MR. CARLSON: I didn't think I asked that particular question, but I can stand to be corrected at this stage. MR. CARLSON: Let's go by these and turn to Exhibit 1018, which is, I believe, up there. I have it. Mr. Running asked you a series of questions regarding this particular exhibit, which is a March 15, 1972, letter? That's what this exhibit is, yes, sir. And this letter has as a subject again reformulating of your products to -- so that they won't have PCBs? That's right, um-hum. There was no information provided in that letter to motivate a customer to drain out their hydraulic systems to eliminate their PCBs, however, was there? No, there again that decision rested with the owner. 3484 WATER PCB-SD0000075619  1Q 2 3 4 5A 6 7Q 8 9 10 A 11 Q 12 13 14 A 15 16 Q 17 18 19 20 A 21 Q 22 23 24 A 25 Q You knew that the owners of this equipment were looking to you for guidance, did you not, as to whether or not it was appropriate to use the fluid or not use the fluid? Well, they certainly discussed it with Monsanto representatives, yes, sir. And would you be kind enough to turn to the next exhibit on the right-hand side, which is Exhibit -- Defendant's Exhibit 1020. I have it. This particular document was one that referenced the Food & Drug Administration and, you know, products coming in contact with food? Well, that's one of the subjects. It also covers incineration. And with regards to incineration, at this point in time, you still had told your customers that it was proper to use the Pydraul fluids in their die cast machines, though; did you not? In the machine, yes. Not in the environment. I understand that. Now, from 1973 until 1978 were there some laws passed regarding the use of PCBs as they pertained to die cast companies? The Toxic Substances Control Act was passed in 1976. And at some point in time you understand that it 3485 i WATER PCB-SD0000075620 1 2 3 4A 5 6 7Q 8 9 10 11 A 12 13 Q 14 15 16 A 17 Q 18 19 20 A 21 Q 22 23 A 24 '25 Q would be inappropriate for a company to have PCBs in their hydraulic systems of die cast machines at more than 50 parts per million? It did come to that, but I personally don't recall the date. I was not involved at the time, so I don't know it. Were there mailings to the customers of Monsanto which had purchased the PCB hydraulic fluids advising them that to comply with federal laws they would have to drain their machines? By that time the government was doing the advising. Monsanto did not so advise, no. So at that point -- Up to that point Monsanto had been providing some information to your customers about PCBs, correct? Certainly. And at some point in time the government stepped in and took over that role, would that be a fair way of categorizing it? Yes, it was after the passage of the act. And your own incinerator became dismantled or you dismantled it when? 19 -- Well, it stopped operating in 1977. It was dismantled several months later. And any company that had your company's PCBs still in 3486 I WATER PCB-SD0000075621 1 2 3A 4 5Q 6A 7Q 8 9A * 10 11 12 Q * 13 ' 14 A 15 Q 16 17 18 *19 A 20 21 Q * 22 23 A 24 1 25 Q their systems as of 1978 would not have Monsanto available to take those PCBs back? No, they had more modern units available, probably closer to home. And Monsanto did not build any of those modern units? No. Monsanto did not advise its customers any further of any desirability or necessity of burning the PCBs? Well, that's not true at all. They advised them that incineration was available at these private companies. At no time after -- There has been no mailings to Stroh after 1973, have there? I do not know. After 1973 you're not personally aware of anything that your company did for the small die cast companies that still had PCBs on the premises; isn't that true? I -- No, there was continual dialogue with the field representatives and the machine operators after 1973. There were no formal programs in place to help the small die cast companies after 1973, was there? No, everything that was perceived to be appropriate had already been passed on to them. You know today that there were many, many die cast 3487 WATER PCB-SD0000075622  1 2 3A 4Q 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 companies after that time that still had PCBs that they had to cope with? To abide by the regulations, yes. Do you have Exhibit 307 on the stack to your right? MR. RUNNING: Your Honor, we object to this exhibit. Since it's 5:00 o'clock, I don't know if we should break and discuss the objection or -- THE COURT: All right. It's 5:00 o'clock. Sounds like a decent time. 8:45 tomorrow. (Whereupon, the following proceedings were had outside the presence of the jury.) THE COURT: I'll take a look at it. And you are free to leave. MR. McDEVITT: It's a 1988 document, Judge. THE COURT: Did you want to take up that now? MR. RUNNING: Your Honor, I was just reading the Tapin versus Krueger case from the Court of Appeals, getting ready for the instructions conference, and this is exactly the same situation, only more so. In the Tapin case the plaintiff attempted to introduce a warning required by the Consumer Products Safety Act some six, eight years after the 3488 WATER PCB-SD0000075623 i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 product had been sold, and the Court disallowed it and was sustained by the Court of Appeals. This is a Material Safety Data Sheet prepared in October of 1988, some 16 years after the last sale of polychlorinated terphenyl product to Stroh. Mr. Carlson has made all his points regarding what was on and what was not on the labels, the environmental sticker, the correspondence. There is no probative value to going into a 1988 material safety data sheet. And the fact of the matter is that this material was required by regulation and by statute. The statute was enacted four years after we stopped selling the product. The regulations were enacted after that, and to get into a comparison of what was required in 1988 versus what was on our product labels in 1972 has no probative value, it's prejudicial and under the Tapin case it's inadmissible. THE COURT: Mr. Carlson? MR. CARLSON: Well, quite frankly, I hadn't planned on using it specifically for that reason, although I suppose if it was in evidence, I could. I don't have a problem at this stage not offering the exhibit as an exhibit. 3489 WATER PCB-SD0000075624 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I do intend to ask him some questions about the subject matter without referencing it as a particular exhibit of any sort. I can cross-examine him on issue which I think may affect his credibility. But I will not refer to it as an exhibit as such. MR. RUNNING: Your Honor -- I take it then you have withdrawn the offer? MR. CARLSON: I don't think I had offered it at that point. Had I? THE COURT: No. No. You just said "have you got Exhibit No. 307." MR. RUNNING: I knew it was coming. Your Honor, there is one other subject, now that the jury is out. Mr. Carlson had Mr. Papageorge read from the Monsanto annual report for 1990, and he chose to read from a passage on Monsanto's accrual for liability for toxic waste facilities, which I think it took us by surprise because that page was not in the exhibit that was admitted into evidence, the version, Plaintiff's Exhibit 995, that had been given to us. We had been led to believe that Mr. Carlson would only be using the information on assets and sales of Monsanto Company. 3490 WATER PCB-SD0000075625 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 He read from a, you know, passage on the accrual of liability, and I -- I think there was an implication there that Monsanto was doing something wrong because it's got over $100 million in liability for disposal. Of course, that is not a large number for a company of this size, but the jury doesn't know that, and it was not included in the exhibit that had been given to us. It has no probative value in this case. It's not relevant to any issue, and I move that the question and answer be stricken. THE COURT: Well, I don't know what the intent of Mr. Carlson was, but I didn't get the impression you got as to why he introduced it. MR. CARLSON: That wasn't the purpose of it. If I did, it was -- it was not planned. It was simply to give the jury an understanding of relative values because of the reference to 1.1 million being a lot of money during the direct examination of Mr. Papageorge by Mr. Running. This would be a nice way to demonstrate perhaps there are other values operating here. How the Court -- If the Court perceives that the jury thought that Monsanto had done something wrong, and that's why it was being 3474 3491 WATER PCB-SD0000075626 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 referenced, I have no problem with a limiting instruction being given now or at some other point. Change in reporters.) MR. RUNNING: Your Honor, there's another problem with that, and that is as The Court, I'm sure, is aware, accounting standards for reporting under GAAP provide that a threshold of materiality for a company based on its sales and net worth and for, to say that something will not have a terrible impact on the corporation is a term of art under accounting standards. And it follows from that if you're talking about projected liability of $100 million for a company like Monsanto, perhaps that is not, under the accountant's definition, a material impact on the financial statement, particularly given the amount that had been accrued, because what the accountants look to do is they compare the accrual of liability against the, you know, the possibility, the contingency involved in the accrual. So I would also -- I didn't know where Mr. Carlson was going with this, because it was included in the exhibit, but that was an improper comparison, because it is not a reflection that Monsanto doesn't think $100 million is a lot of money, or that Monsanto considers that to be pocket change, as was the implication in the 3492 I WATER PCB-SD0000075627 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. He has already gotten into evidence what Monsanto's assets are, what Monsanto's sales are, and he can make argument from that point, but to introduce accounting terms, references to accruals and to materiality creates a false impression for that reason as well. And whether or not The Court derived that inference, I don't know. If you want to warn the members of the jury. And I'm troubled by referring to over $100 million in waste disposal liability, because I just don't know that the members of the jury are as sophisticated as The Court is. I'm sure they're not. THE COURT: The odds are they are not. MR. RUNNING: I'm sure of that. THE COURT: I haven't looked at the exhibit, but I assume this was in a footnote. MR. CARLSON: No, it's in the body. THE COURT: I see it had to do with your cash flow situation. MR. CARLSON: That's right. THE COURT: The impression I've gotten was the same one Mr. Carlson mentioned, that is, relative dollar values. Maybe the jury got a different one, and I'd be happy to explain that any reference in a statement, in a financial document that's given to shareholders relating 3493 I WATER PCB-SD0000075628 w1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to accrued liabilities, for whatever reason, is not indicative that there is, in fact, legal liability for any problems, something of that nature. MR. CARLSON: I have no problem with that. MR. RUNNING: Okay. THE COURT: I didn't have the number. MR. McDEVITT: 995, I think. I'll mark this page. MR. CARLSON: That's fine. (Whereupon, the Court stood recessed until May 14, 1991 at 8:45 A.M. 3494 I WATER PCB-SD0000075629