Document zoLNMOLZyxz66G0VXqvzr49aB

IN THE DISTRICT COURT OF THE UNITED STATES EASTERN DISTRICT OF KENTUCKY PIKEVILLE DIVISION EQUITABLE RESOURCES ENERGY COMPANY, a West Virginia Corporation, Plaintiff, VS . MONSANTO COMPANY, a Delaware Corporation, Defendant. ) ) ) ) No. 91-441 ) / DEPOSITION OF R. EMMET KELLY, M.D. TAKEN ON BEHALF OF THE PLAINTIFF. October 6, 1992 RICHARD E. SCHROEDER Registered St. Professional Reporters 818 Olive Louis, MO 63101 621-0107 WATER PCB-SD0000047159 Richard E. Schroeder Registered Professional Reporters 4 0 0 N. Fourth - Suite 910 St. Louis, MO 63102 ( 314 ) 621-0107 October 21, 1992 R. Emmet Kelly, M. D . 6 6 5 S. Skinker Blvd. St. Louis, MO 63105 IN RE: EQUITABLE RESOURCES ENERGY CO. VS. MONSANTO COMPANY Dear Doctor: Your deposition given on Oct. 6 , 1992 , has been transcribed, and is now ready to be read and signed by you. Please call and make an appointment at your earliest convenience to come downtown to this office to handle this matter. If you have not called us within thirty days, your deposition will be filed absent your signature. I am enclosing correction sheets for your convenience in case you have been furnished a copy of your testimony by counsel. Please return them to my attention at the address shown on this letter, along with a notarized signature page found at the end of the transcript. Yours very truly, ccs Richard L. Saunders Gregory L. Monge, Esq. 1 WATER PCB-SD0000047160 1 IN THE DISTRICT COURT OF THE UNITED STATES EASTERN DISTRICT OF MISSOURI 2 EASTERN DIVISION 3 4 EQUITABLE RESOURCES ENERGY COMPANY, a West Virginia 5 Corporation, 6 Plaintiff, 7 VS. 8 MONSANTO COMPANY, a Delaware Corporation, 9 Defendant. 10 ) ) ) ) ) ) ) No. 91-441 ) ) ) ) 11 DEPOSITION OF R. EMMET KELLY, M.D., produced, sworn, and examined on the part of the 12 PLAINTIFF, used in an action pending in the United States District Court within and for the Eastern 13 Division of the Eastern Judicial District of Missouri, in re: EQUITABLE RESOURCES ENERGY 14 COMPANY, a West Virginia Corporation, VS. MONSANTO COMPANY, a Delaware Corporation, on October 6, 1992, 15 at the office of Husch, Eppenberger, Donohue, Cornfeld & Jenkins, 100 North Broadway, St. Louis, 16 Missouri, before Richard L. Saunders, a Notary Public within and for the City of St. Louis, State 17 of Missouri. 18 APPEARANCES: 19 McCoy, Baker & West 309 North Broadway 20 Lexington, Kentucky 40592-1660 By: Michael D. Baker, Esq. 21 And Charles E. Beal, II, Esq. For The Plaintiff. 22 &Smith, Helms, Mulliss Moore 23 227 N. Tryon St. Charlotte, NC 28231 24 By: Roily Chambers, Esq. For The Defendant. 25 2 WATER PCB-SD0000047 1 2 PLAINTIFF'S 3 12 13 4 14 15 5 17 28 6 20 21 7 22 23 8 24 25 9 26 27 10 28 70 11 98 99 12 76 88 13 92 93 14 95 96 15 97 16 17 18 19 20 21 22 23 24 25 EXHIBIT INDEX PAGE MOVED IN EVIDENCE 84 94 100 102 112 115 118 120 121 121 121 121 121 121 121 123 128 128 137 147 158 160 160 165 168 179 179 179 179 179 179 179 179 179 179 179 179 179 3 WATER PCB-SD0000047 1 R. EMMET KELLY, M.D., 2 3 of lawful age, produced, sworn, and examined on 4 behalf of the PLAINTIFF, deposes and says: 5 DIRECT EXAMINATION 6 BY MR. BAKER: 7 Q. Dr. Kelly, my name is Michael Baker and 8 Mr. Beal and I are attorneys from Kentucky. We 9 represent a company that has a plant in Kentucky 10 that used Pydraul AC as a lubricant back in the 11 '60's and early '70's and we have a lawsuit against 12 Monsanto. We've been required by various agencies 13 to do some remediation in our plant facility and we 14 claim that part of the blame or all of the blame 15 goes to Monsanto and we have a lawsuit pending in 16 federal court in Kentucky over that. 17 We are here to try to gain some 18 information from you about what was done at Monsanto 19 with regard to PCB's, particularly Aroclors, and 20 later the Pydraul products while you worked with 21 them. Our purpose today is not to try to outfox you 22 or trick you into saying something you don't mean 23 but we're merely here to get information. So if I 24 ask you anything and you don't understand what I'm 25 asking at any time, feel free to stop and ask me to 4 WATER PCB-SD0000047' 1 restate it or rephrase it, or if you went to take a 2 break and confer with counsel for Monsanto, feel 3 free to do so. 4 A. Yes, sir. 5 Q. Have you given your deposition before? 6 A. Yes, sir. Q. Approximately how many times ? 8 A. 20 times. 9 Q. State your name, please? 10 A. Robert Emmet Kelly, K-E-L-L-Y. 11 Q. And where do you live? 12 A. 665 South Skinker, S-K-I-N-K-E-R, 13 St. Louis, Missouri, 63105. 14 Q. What is your educational background? 15 A. Following high school I went to St. Louis 16 University. I received a Bachelor of Science Degree 17 in 1930. It was a combined course. And an M. D. 18 Degree in 1932. 19 Q. After you got your M. D. Degree in 1932, 20 what did you do? 2 1 A. I spent three years at St. Louis City 22 Hospital as Intern, Assistant Resident and Resident 23 in general medicine. 24 Q. Did you obtain any board certification or 25 any other evidence of specialty in internal medicine 5 WATER PCB-SD0000047' 1 or in any other field? 2 A. Yes, I'm certified in internal medicine, 3 recertified in internal medicine and certified in 4 occupational medicine under the general blanket of 5 preventive medicine. It's a subspecialty under 6 preventive medicine but they are both recognized boards. 8 Q. After your three years at City Hospital, 9 what did you do? 10 A. I started practice at St. Louis, Missouri, 11 and after about six months I became a part time 12 physician at the Monsanto Plant in St. Louis. 13 Q. Would that have been in about 1935 or '36? 14 A. 1936 I started with Monsanto. 15 Q. You said you were part time with Monsanto. 16 Did you continue to practice in your own practice 17 also? 18 A. Yes. 19 Q. I'll try not to interrupt you unless I'm 20 confused about something. Just tel1 us what you did 2 1 with Monsanto, starting in 1936 through the present 2 2 time. 23 A. When I went with Monsanto in 1936 I was a 24 plant physician at the Queeny Plant, and that was 25 called Plant A in St. Louis. There I took care of 6 WATER PCB-SD0000047' 1 the occupational injuries, any occupational 2 illnesses. I carried out a preventive medical 3 program of preemployment examinations and routine 4 reexaminations. I stayed there at the Queeny Plant 5 -- at the Plant A at that time, they changed their 6 name -- until January of 19 -- no, March of 1942, when I went in the service. I stayed there until 8 1946 when I returned from the service. 9 During the latter years of the ' 3 0 ' s I 10 visited some of the other plants on more or less spot occasions. In other words, I was the only 12 doctor within hailing distance of the general 13 of fices so when they had some problems in other 14 plants they would call me and I went there. I 15 didn't have any direct responsibility but I was sort 16 of the Medical Director without portfolio as you 17 might say. 18 When I came back from the service in ,19 1946 1 set up a central medical department a 20 Corporate Medical Department, which was a staffed 2 1 department at which I was given authority and 22 responsibility over the other plants and 23 laboratories the company had as far as their medical 24 program was concerned. 25 I stayed in that position until I 7 WATER PCB-SD0000047' 1 retired in 1974. November '74, although, of course, 2 the scope in the department enlarged during those 3 0 3 years or so, I was with Monsanto for a year on a 4 consulting basis on a retainer. And then following 5 1975 I am treated just as any other client on a 6 fee-for-service basis. 7 Q. From 1936 until you went into the service 8 you were at the Queeny Plant or Plant A? 9 A. That' s correct. 10 Q. During that period did you work at any 11 other plants or visit any of the other plants? 12 A. Well, geographically, the Queeny Plant was 13 situated right next to the general office, so the 14 company enlarged and they went in the phosphorus 15 business and other chemicals, so there were medical 16 problems that were either actual or potential, so 17 they looked around and said, well, what do we do? 18 We've got a doctor next door, let's talk to him. So 19 I started doing sort of fire fighting jobs during 20 those years until '48 -- I mean until '42. By about 2 1 1940 I was going around to al1 the plants rather 22 than wait for them to call me, but I was not 23 officially a part of the Medical Director but they 24 knew I was next door to the boss so, in essence, I 25 had the authority, although it wasn't written down. 8 WATER PCB-SD0000047' 1 Q. Was this still a part time job at that 2 t ime ? 3 A. Yes, it was. 4 Q. And you still had a practice of internal 5 medicine? 6 A. Private practice, that ' s correct. 7 Q. From 19 3 6 until you went in the service in 8 '42, approximately what percentage of your time was 9 spent working for Monsanto? 10 A. Probably 50 percent I would imagine. I was 11 out of town about 30 days or something of that sort. 12 Q. Were you the only physician employed by 13 Monsanto during that time period? 14 A. Well, of the various plant physicians I was 15 the only one employed in the St. Louis area. Most 16 of the plants -- some were real small, 4 0 people, 17 had a doctor on call, but other ones had either a 18 doctor part time or a doctor under retainer. 19 Q. I believe they had a plant in Anniston, 20 Alabama? 2 1 A. That's correct. 2 2 Q. During that time period? 23 A. Yes. 24 Q. Did you have occasion to visit that plant ? 25 A. Yes, I did. 9 WATER PCB-SD0000047' 1 Q. Do you recall what it was that caused you 2 to go to Alabama or caused Monsanto to ask you to go 3 to Alabama? 4 A. Yes, that's -- this plant was bought from 5 the Swann Chemical Company by Monsanto in 1935 or so 6 before I came -- was associated with Monsanto. 7 During the middle '30's or '34 or '35 the Swann 8 people had a -- I don't want to say a rash, they had 9 several cases of chloracne, which is a dermatitis, 10 and that was rather unusual for the plant. It 11 turned out though it came from an off-specification 12 benzene they had bought for several batches where ,13 they were making PCB's. And that was in the files 14 it wasn't -- and I saw it there. And one of our 15 company customers had -- they were using chlorinated 16 naphthalene and using 10 percent of one of our 17 materials. It wasn't PCB. Instead of chlorinated 18 biphenyls it was chlorinated biphenyl benzene and 19 they developed some chloracne, so to get a firm 20 picture of the whole affair I went down to Anniston 21 to see if they were having any trouble. 22 Q. Approximately when was that? 23 A. Beg your pardon? 24 Q. About what year was that? 25 A. Probably early '37. 10 WATER PCB-SD0000047 1 Q. So Monsanto knew and you knew by 1937 that 2 chlorinated hydrocarbons under certain circumstances 3 caused chloracne? 4 A. Oh, yes. Well, it was pretty well known 5 that chlorinated naphthalenes since 1900 had caused 6 chloracne, so it was a pretty well known thing there 7 was a thing such as chloracne from chlorinated 8 hydrocarbons. 9 Q. You went away to the service. Were you a 10 physician in the service or did you have some 11 other - 12 A. No, I was with the Medical Corps but I was 13 attached to chemical warfare installations. I was 14 at Pine Bluff Arsenal at Pine Bluff, Arkansas, and 15 then Edgewood Medical Center at Edgewood, Maryland. 16 Q. Did you in any way come into contact with 17 chlorinated hydrocarbons during your time in the 18 service? 19 A. Might have been some solvents but no PCB's, 20 certainly. We had enough problems with the war 21 gasses and things of that sort. 22 Q. So you came back to St. Louis then and you 23 were discharged in 1946? 24 A. That's correct. 25 Q. And that was when the Corporate Medical 11 WATER PCB-SD0000047 1 Department at Monsanto was formed? 2 A. That's correct. 3 Q. Were you placed in charge of that 4 department ? 5 A. Yes. 6 Q. Were there other physicians who worked with 7 you ? 8 A. Not then, but we gained a part time 9 physician who was a Professor at Washington 10 University. I think we did that in probably '4 8 or 11 something like that. Eventually we ended up with a 12 full time associate and three part time physicians 13 in the general offices. 14 Q. Was your position a full time position at 15 this time? 16 A. Yes. 17 Q. Did you have any private practice on the 18 side? 19 A. No, I might have had an occasional 20 consultation or something like that, but -2 1 Q. But you didn't have an office and staff ? 22 A. No. 23 Q. At any time between 1946 and 1974 did you 24 have a private practice or practice other than your 25 job at Monsanto? 12 WATER PCB-SD0000047171 1 A. Other than what? 2 Q. Your job at Monsanto. 3 A. No. 4 Q. Since 1974 when you retired or 1975 when 5 your retainer expired have you had a private 6 practice? 7 A. No, I was associated with the Barnes-Sutter 8 Occupational Clinic in St. Louis for about -- to 9 answer your question, I did not have a private 10 practice but I was associated with Barnes-Sutter 11 Clinic for three days a week when I would see their 12 occupational cases three and a half days a week. 13 I was Medical Director of what was 14 really a part time basis of Consolidated Aluminum 15 Company in St. Louis and they had about 12 plants 16 throughout the country and I spent probably 30 days 17 a year with that, but no private practice. 18 Q. You said in the beginning that you had 19 given your deposition approximately 20 times? 20 A. Yes, give or take. 21 Q. I'm not going to ask you to identify each 22 of those. Have those primarily dealt with PCB's or 23 have you been deposed on other topics also? 24 A. I would say that 80 percent were PCB's. 25 Q. Have you testified previously in trials 13 WATER PCB-SD00000471 1 involving PCB's? 2 A. Yes. 3 Q. Can you, to the best of your recollection, 4 tell us what trials you've testified in or where 5 they were or give us some identification of those 6 cases? 7 A. One was in Broken Ax, Minnesota. I don't 8 recall the name of the -- Broken Ax is 60 mile s 9 north of Saginaw, Michigan. 10 Q. Approximately when was that? 11 As Six years ago. Then there was a case in 12 Texas at Beaumont, Texas. I think that was Scott if 13 I'm not mistaken. 14 I testified in the Stroh Diecasting 15 Company in Milwaukee probably three years ago I 16 believe , I' m not sure. And there was one downtown 17 in St. Louis but I forget the name of it. That was 18 about a year and a half ago. 19 Q Did you testify in the case in Bloomington, 20 Indiana ? 21 A . No, I g ave a deposition. 22 Q. To the best of your recollection what 23 product was involved in the Minnesota case? 24 MR. CHAMBERS: Just make an objection for 25 the record on the relevancy on the inquiry that 14 WATER PCB- 1 doesn't involve Pydraul AC. 2 A. It was one of the Aroclors. I don ' t know 3 whether it was 1254 or 1242 . It was in paint that 4 went in silos that flaked off. 5 Q. (By Mr. Baker) And to the best of your 6 recollection what product was involved with the 7 Texas case? 8 MR. CHAMBERS: If you remember. 9 A. I don't remember. It was -- I just don't 10 remember. It was not a Pydraul though. 11 Q. (By Mr. Baker) And to the best of your 12 recollection what product was involved in the Stroh 13 case ? 14 A. The Stroh might have been a Pydraul. 15 Q. And the St. Louis case? 16 A. That was an electrical PCB, probably 12 4 8 , 17 but I'm not certain. 18 Q. You said you had given your deposition in a 19 number of cases and that about 80 percent of those 20 involved PCB's. To the best of your recollection 21 can you tell us what cases you've given depositions 22 in that involve any of the Pydraul line of products? 23 A. Well, I would say the Stroh was one. You 24 know, some Pydrauls are PCB's and some Pydrauls are 25 not PCB' s. I mean, are you f amiliar with the 15 WATER PCB-SD00000471 1 nomenclature of these things ? 2 Q. I'm becoming more and more so. We would be 3 interested in finding out cases you testified in ,4 involving Pydraul PCB's or PCT's and hopefully, we 5 will not have to become interested in any of the 6 later Pydrauls. 7 A. Okay, I know the Stroh case. I can't 8 recall any others over the years that I may very 9 we11 have testified. 10 Q. You said that after your retainer for one 11 year, after that period ended you did some work for , ,12 Monsanto on a fee-for-service basis and frankly ,13 I'm not interested in how much exactly how much ,14 they pay you but do you bill that on an hourly rate 15 or is it for a particular job or what is your 16 arrangement? , ,17 A. No it's not an hourly rate and if I were 18 out of town it was a different rate and if it's a 19 deposition, it's one rate. If it's a trial, it's 20 another rate. It started off I think back in 1975 2 1 at $100 an hour. Now it's $200 an hour. 22 Q. Do you bill that directly to Monsanto? 23 A. Yes. Although there may have been a case 24 where I billed it to the plaintiff's attorney but I 25 don't think I ever got paid by them. 16 WATER PCB-SD0000047 1 Q. I would recommend that you send the bill to 2 Monsanto. We'll work it out with them. 3 I assume you're being paid by Monsanto 4 for the time you're devoting to this case? 5 A. I will be, yes, sir. 6 Q. Do they pay you for all the time that you 7 spend preparing for depositions and giving 8 depositions ? 9 A. Will you repeat that, please? 10 Q. Yes, does Monsanto pay you for all the time 11 that you spend preparing for depositions and giving 12 depositions ? 13 A. Well, "preparing" might be reading over 14 some of the records and consultation with the 15 defense counsel the day before the deposition. Yes, 16 they do that. 17 Q. Do you maintain in your possession or 18 control any records, copies of records or copies of 19 correspondence pertaining to PCB's produced by 20 Monsanto? 2 1 A. If there were exhibits at the time of a 22 deposition, I would. I have none other than that. 23 Q. When did you first become familiar with 24 PCB's? 25 A. 19 3 6 , end of '3 6 or the first part of '37 . 17 WATER PCB-SD00000471 1 Q And what caused you to become familiar with 2 PCB's at that time? 3 A. We had a customer called the Bakelite 4 Corporation, which is a subsidiary of Union Carbon & 5 Carbide, C & C they called themselves at that time. 6 They are the ones that had it mixed in half a dozen Bakelite formulations mostly, various blends of 8 chlorinated naphthalenes, and they sold this as a 9 dielectric to cable, to wire cables, electrical 10 insulation, and the workers who applied this 11 insulation were developing chloracne and some were 12 developing liver failures, so they were going to 13 have the whole deal investigated by people at 14 Harvard University. So they approached us for some 15 money to carry out part of the investigation, even 16 though the relative amount we ever sold them was a 17 small amount, just, the best of my recollection, one 18 product, which was not a PCB but was a chlorinated 19 biphenyl benzene, which was like a PCB but it's got 20 another benzene ring hooked on someplace. Q. Did that ultimately lead to what I might 22 describe as the Drinker study? 2 3 A. Yes, that was it. 24 Q. We'11 get to that in a moment then. 25 Up to this time did you know anything 18 WATER PCB-SD0000047 1 at all about PCB's or chlorinated hydrocarbons? 2 A. Well, there's a big difference. 3 Q. Let me ask you PCB's first. 4 A. Yes. We11, as I said, in the file are the 5 records, old records, of the Swann cases down at 6 Anniston. I seen that because I inherited the files. I had seen that but I don't know what I 8 saw. And then, of course, at medical school we 9 talked about chloracne from chlorinated naphthalene. 10 Q. In medical school was there any talk of 11 PCB's? 12 A. Wo. 13 Q . Were you, in the 19 3 0 ' s , involved in any 14 way with product testing for Monsanto to determine 15 whether the product was safe or whether it had 16 potential health hazards? 17 A. I might have been -- well, yes, I was 18 involved in two ways. One, when Drinker came out 19 and said our 1260 was toxic according to his I20 testing, called him and said, "Look, this is 2 1 pretty strange to us. We don' t really believe it. 22 Where did you get the 1260? We've got no record of 23 selling you this." He said, "I got it from Halo Wax 24 and Bakelite." 25 I said, "I'm going to send you some 19 WATER PCB-SD0000047 1 honest to goodness 1260." We didn't have a 1260, we 2 had a 12 6 2 you realize in the ' 6 0 ' s ' 5 0 ' s, the 3 amount of chlorine hooked on to these benzene rings. 4 Q. Yes, I've been told that by a couple 5 people. Why don't you briefly, so it will be on the 6 record here, tell us what 1260 means and 1254 and 7 12 4 8 , et cetera? 8 A. It means that biphenyl benzene is 9 chlorinated for an average of 54 percent chlorine. 10 That doesn't mean that all the isomers in there are 11 54 percent. Some might be 5 8, some might be 48. 12 And also, conversely, 1260 is chlorinated an average 13 of 60 percent chlorine. 14 Q. And is that by weight? 15 A. Yes. 16 Q. To get the higher numbered Aroclor does 17 that require more and more of the isomers with five, 1 8 six, seven or even eight chlorines? 19 A. Yes. 20 Q. Just briefly explain for us. 2 1 A. In other words, you chlorinate it longer. 22 You chlorinate at higher temperatures and you 23 distill off the lower chlorinated ones, so you end 24 up with the higher chlorinated 1262, 1268. 25 Q. What is the highest level of chlorine, by 20 WATER PCB-SD0000047' 1 weight, that Monsanto ever produced to your 2 knowledge? 3 A. I know they produced 1268 in commercial 4 amounts. I've seen some literature about a 1260 but 5 I don't recall ever seeing it in bulletins. 6 Q. Would it be a fair statement that I know 7 this isn't a direct proportion but may increase more 8 than a direct proportion. Would it be a fair 9 statement that a higher percentage by weight of 10 chlorine would correspond with a lower degree of 11 biodegradability? 12 MR. CHAMBERS: Let me just for the record 13 again just object that I'm not sure that we've 14 established what Dr. Kelly's involvement with 15 biodegradability is. I know we've talked about 16 toxicity aspects, but to the extent he can answer, 17 he can . 18 A. Yes. I believe the lower chlorinated RGB's 19 are more biodegradable than the higher chlorinated 20 ones. The lower rings are more volatile, they are 21 less viscous. The higher ones are resin like a 22 piece of tar. They are much less biodegradable. 23 Q. (By Mr. Baker) Now, before I interrupted 24 you, you were talking about sending some Aroclor to 25 Dr. Drinker. 21 WATER PCB-SD0000047 1 A. Sent some 1262 up to Drinker and he 2 duplicated a test on what he ran on what he had 3 called chlorinated, that he called PCB's, that he 4 received from Bakelite and he was surprised that ,5 there was a magnitude difference I mean a tenth of 6 the toxicity of material we sent up there, so he corrected his statement about the toxicity in a 8 subsequently article published in either 1937 or 9 1939 . 10 Q. Do you know where that article was 11 published? 12 A. Journal Of Industrial Hygiene & 13 Toxicology. That's a defunct magazine right now. 14 Q. Do you know where I could go to find a copy 15 of that if I wanted one? 16 A. Yes, sure. Call Tom Bistlline at Monsanto. 17 Q, I expected there would be somebody there 18 who could direct me to one. 19 MR. CHAMBERS: Let's go off the record just 20 a second. 2 1 (Discussion was had off the record.) 22 THE WITNESS: Drinker had three articles. 23 The first one I think was in 1937. The second was 24 more or less an analytical one that didn't mean too 25 much toxilogical-wise. And the third one was either 22 WATER PCB-SD00000471 1 in ' 3 8 or '39, but Bistlline's got them. 2 Q. (By Mr. Baker) Would it have been the 3 third one that you referred to previously? 4 A. Third one, that's correct. 5 Q. I believe my question that led to this 6 discussion of the Drinker articles was similar to this: In your position at Monsanto in the 1930's 8 were you involved in testing of products to 9 determine whether they were safe or whether they 10 caused potential health hazards? And I believe part 11 of your answer to that question was that you 12 provided Drinker with some material after his first 13 article; is that correct so far? 14 A. Yes. 15 Q. Did you have any other involvement in 1 6 testing of products in the 1930's for Monsanto? 17 A. Yes. I'm not sure it was in the ' 30 ' s or 18 the first part of the '40's, we tested Pentaclor ,19 phenol which was a wood preservative and we had 20 that tested at our a consulting laboratory in 2 1 Cincinnati and we probably were doing it in the late 22 ' 30 ' s . We may have been doing what we called our 23 basic toxicology testing of acute package of 24 testing. That would be testing for acute lethal ,25 dose, eye irritation skin irritation and inhalation 23 WATER PCB-SD0000047182 1 of saturated atmosphere if the material could be 2 volatilized without heating. 3 Q. Did you do that testing with PCB's or with 4 just some of these other products? 5 MR. CHAMBERS: Object to the form. For 6 purposes of clarification, you're focusing on the 7 ' 3 0 ' s time frame for that type of thing as opposed 8 to some of the later - 9 MR. BAKER: Yes. 10 A. I can't remember. 11 Q. (By Mr. Baker) Do you recall any testing 12 by Monsanto of PCB's for possible health hazards 13 prior to the first Drinker article? 14 A. Quite sure we didn't. 15 Q. Other than sending Dr. Drinker a sample of 16 Aroclor 1262 sometime after his first article, do 17 you recall any testing by Monsanto of PCB' s for 18 health or safety hazards during the 193 0 ' s ? 19 A. I don't recall. 20 Q. So let's start in the 19 4 0 's now. Do you 21 recall any testing by Monsanto of PCB's for 22 potential health or safety hazards during the 23 1940's? 24 A. I can't remember whether it was the '4 0 ' s 25 or the '50's. I'd have to see the reports. I just 24 WATER PCB-SD0000047 1 don't remember. Remember, I was gone for four years 2 so I don't think they did any testing, because I 3 never saw any reports when I came back, so whether 4 from 1946 to 1950 we did any testing, I can't 5 recall. 6 Q. I'm not trying to tie you down to any 7 particular year. I was just using the decades as a 8 frame of reference. So you don't recall any other 9 testing other than sending this material to 10 Dr. Drinker before you went to the Army in '42; is 11 that correct? 12 A. Yes, I believe so, although I said they may 13 very well have done what we called our package 14 testing as one of the local laboratories in 15 St. Louis. There were two laboratories in ,16 St. Louis Younger Laboratory and Scientific ,17 Associates and we did acute testing there of 18 various products, and I do not know if we included 19 PCB's in that, I don't know. 20 Q. But you did some acute testing of several 21 other products during that time? 22 A. That's correct. 23 Q. During that time frame to the best of your ,24 recollection who decided, or how was it decided 25 what products to do acute testing on? 25 WATER PCB-SD0000047' 1 A X did. 2 Q. To the best you can enlighten us, on what 3 did you base your decision of which products to do 4 acute testing on? 5 A. Well, first, let me -- if it's a new 6 product at that time we wanted to know some basic 7 toxicological findings and we called a new product 8 something that we either advertised in a technical 9 bulletin, say we've got this product X, here is the 10 characteristics, can you use it, or we suggested to 11 be used this, this, this, that we wanted 12 toxicological, basic toxicological information on. 13 Old products, we would test it in 14 response to either a customer inquiry or worker 15 inquiry. In other words, a union representative may 16 say, well, this man says he's got a diabetes or 17 something and he's working around product Y. What 18 do you know about it ? Well, if we didn't have any 19 toxicological testing on it we would run the basic 20 toxicity on it. 21 Q. Were there products that you did acute 22 testing on before workers or unions or customers 23 comp1ained or raised questions about the safety of 24 the products? 2 5 A. At what time? 26 WATER PCB-SD0000047' 1 Q. Okay, again, we're talking about the period 2 right now up before 1942. 3 A. Yes, I think -- oh, yes, I'm certain. In 4 other words , we were a relatively small company at 5 that time. We had a central research department. 6 They worked right across from the same building as we did and there was quite a good informal rapport 8 between the people at Research and myself, and if 9 they say, We're working on this batch of compounds; 10 what do you know about it? And I said, Well, I 11 don't know. Who else makes it? If they say, Well, 12 DuPont makes it, I would write to DuPont and say, 13 What do you know about this type of compound? Do 14 you have any toxicological data on it? There was a 15 free interchange of toxicological data, and there 16 still is I presume. 17 Then we would look at the literature 18 and see if there was anything in the literature. If 19 there wasn't anything there, we would decide let's 20 find something out about it. 2 1 Q. If you decided you wanted to find something 22 out about it and in, again, this period 1936 to 23 1942, what would you do? 24 MR. CHAMBERS: Let me object just again to 25 the form. When you s ay "it," you ' re just referring 27 WATER PCB-SD0000047 1 in a broad general category to whatever it was that 2 would be tested? 3 MR. BAKER: Right. I was just using his 4 words. 5 MR. CHAMBERS: That's fair enough. 6 A. What was the question again? Q. (By Mr. Baker) In your previous answer you 8 said you might contact DuPont or another 9 manufacturer, might review the literature, and if we 10 c ouldn't find what we wanted there, might do s ome 11 testing. And my question is: If you decided to do 12 some testing of a product during this time period 13 1936 to 1942, what kind of a testing of that product 14 would you have done? 15 A. That would be we would test it to see how 16 it would damage the eyes if we dropped it full 17 strength. We would test it on the skin to see if it 18 could be absorbed through the skin to find out the 19 action of the skin. We would test it orally to see 20 -- those days we called it the minimum lethal 2 1 dose. That was changed to the lethal dose for 50 22 percent of the animals. And then if it were a 2 3 1iquid we would bubble air through it into a cage 24 containing some animals to see what the pulmonary 2 g response was. 28 WATER PCB-SD0000047 1 Q. What kind of animals did you use during 2 this period 1936 to 1942? , ,3 A. Rabbits for skin rats for ora1 testing 4 rabbits for eyes. 5 Q. Do you recall whether Monsanto or any labs 6 under Monsanto' s direction did any such testing of 7 PCB's during 1936 to 1942? 8 A. Mo, I don't recall, but Younger may very 9 well have. 10 Q. How could you or how could we determine whether that was done between 1936 and 1942? 12 A. I guess ask Monsanto if they've got any 13 records of any testing done on it. 14 Q. Do you know of any particular person other 15 than yourself who would be familiar with that? 16 A. Joie Diblock. I mean she's the 17 administrator, paralegal, she's the one that always 18 runs down stuff for me. 19 MR. CHAMBERS: She's the one who works for 20 Mr. Bis 11line? 2 1 A e Yes* 22 Q . (By Mr. Baker) But personally you don ' t 2 3 recall having done anything else specifically? You 24 can't specifically state there wasn't any done; is 25 that a fair summary? 29 WATER PCB-SD0000047 1 A. That's correct. 2 Q. Then you were gone to the service between 3 1942 and 1946. From what you saw when you returned 4 can you identify or recall any testing of PCB'S by 5 Monsanto or a lab under Monsanto's direction between 6 1942 and 1946? A. I can't recall of any. 8 Q. Then you returned to Monsanto full time 9 after you were discharged from the service in 1946. 10 Why don't we take from 194 6 up through the end of 11 the 19 5 0 ' s, and if you can't recall specific dates 12 or years, I'm not trying to hold you to that, but 13 tell us in general what you recall about testing by 14 Monsanto or laboratories or others under Monsanto's 15 direction between 1946 and 1960 as it relates to 16 PCB's. ,17 A. Well I know that we did what would be 18 called subacute inhalation testing of PCB' s at the 19 Kettering, K-E-T-T-E-R-I-N-G, Laboratory, University ,20 of Cincinnati that was published by a Dr. Treon, ,2 1 T-R-E-O-N and I believe the American Industrial 22 Hygiene Association Journal which he tested I think 23 in '4 8 and '54. 24 I know we did basic toxicity testing 25 at various times on various Aroclors or PCB's during 30 WATER PCB-SD0000047' 1 that time. 2 Q. To your knowledge, between 1946 and 1960 3 was there any chronic testing of PCB's? 4 A. Bo, sir. Remember, in those days there 5 were no illnesses reported here. We were making 6 this in hundreds of millions of pounds and we had no ,complaints from any of our customers. None zero. 8 There were two acute episodes sometime 9 in the ' 5 0 ' s or ' 60 ' s where two times a jury-rigged 10 heat transfer unit leaked and two workers got a 11 chemical hepatitis with jaundice. And then there 12 was another time where people also -- the heat 13 transfer unit where there was some leaking, 14 developed a very mild chloracne. Those were the 15 only cases reported during that decade. There were 16 no other illnesses reported on any workers. 17 Q. We're talking the decade of the '50's? 18 A. And up to '60, yes. I could go farther and 19 say up to the '80's there haven't been, but -20 Q. You will get a good opportunity to do that 2 1 before the day is over I'm sure. 22 A. Okay. 23 Q. But let's concentrate for the moment from 24 1946 to 1960 because I'm trying to separate this 25 into time frames to help your recollection. 31 WATER PCB-SD0000047 1 You referred to two reports of workers 2 having some kind of illness or injury. Tell me what 3 you can recall specifically about those. 4 A. There were two cases -- one case in Brazil, 5 Indiana, man by the name of Spolyar, S-P-O-L-Y-A-R, 6 wrote -- he said they had this makeshift heat transfer unit that leaked and the stuff dropped 8 out. I don't know which Pydraul they were using. I 9 don't know if they were using Pydraul or what they 10 were using, but they were using PCB's as a heat 11 transfer unit and they developed jaundice. And he 12 called me about it and I said, "Well, I wouldn't be 13 surprised, because from the action from our work in 14 1954 we did target the liver." So I said, "Keep me 15 posted." 16 And he did. He said the bottom line 17 was they recovered. He did write an article but 18 I've never been able to find it. You see it once 19 and it's gone, and I don't know how he described 20 it. 11 was a relative obscure j ournal like the 2 1 Journal Of The Indiana Medical Society or something 22 like that.and I never did get one. 23 The other was a case -- I think it was 24 Crown Chemical Company in New York. I don't know 25 exactly the name of it. The man said, "We've had a 32 WATER PCB-SD0000047 1 couple of people exposed to leaks from a heat 2 transfer unit and they ' re nauseated." He said, 3 "What about it?" And I said, "Well, obviously, 4 correct the leaks, take them away from there and 5 watch out for the development of j aundice." 6 And he called me a couple of weeks later and said, "Well, they did get j aundice and we 8 are following up and they are doing all right." And 9 X called him a month 1ater and he said they were 10 recovered. That was never written up by anybody. 11 The other was a case by a Dr. Meigs, 12 M-E-I-G-S, who also had a heat transfer unit that 13 was outside and it got -- he was an occupational 14 physician for one of the smaller New England 15 states. I don't know whether it was Connecticut or 16 one of those, and one of the physicians reported a 17 case of chloracne, so they were very happy to go 18 down and look it over and they looked over everybody 19 and they found about five cases of chloracne, which 20 three of the people didn't know they had it. Said, 2 1 "You got chloracne." He said, "What' s that ?" They 22 said, "Yeah, I had stuff like that all my life. " 23 So, anyway, that was a case of another 24 leaking. Those are were the only cases that ever 25 occurred. 33 WATER PCB-SD0000047 1 Q. The first one you referred to you said was 2 in Indiana. To the best you can recall -- if you 3 can't, just tell me you can't. But to the best you ,4 can recall when did that occur? 5 A. I think in the ' 50's . 6 Q. You know whether it was early '50's, late 7 '50 ' s? 8 A e Ho. 9 Q. And that was the one that did lead to some 10 article being written but you don't know where that 11 article was and you don't have a copy of it? 12 A. I don't have a copy. I think I had it at ,13 one time but I've never seen it but looked at all 14 these cases. It always comes up at these 15 depositions and I've looked but I don't have it. 16 Q. How did you first find out about this 17 case? Did the person there call you? 18 A. Spolyar called me. 19 Q. Was he a physician? 20 A. He was a physician and he was head of the 2 1 Department of Occupational Health or something like 22 that in Indiana. 2 3 Q. So he was some state official in Indiana? 24 A. That's correct. 25 Q. Was there any correspondence to you, from 34 WATER PCB-SD0000047 1 you or to anyone else at Monsanto concerning that 2 situation? 3 A. I don't recall -- I don't recall if there 4 was. I mean, I know there was at least one and 5 probably two telephone conversations but I don't 6 recall whether we wrote about it or not. I don't know. 8 Q. Did you go to Indiana to do any 9 investigation? 10 A. No. 11 Q. Did you see any of the workers or patients 12 who developed jaundice? 13 A No. 14 Q. To your recollection did you see any 15 medical reports concerning these patients? ,16 A. No sir, all I had was Spolyar. The last 17 conversation I had with him he said they had 18 recovered, were back at work. 19 MR. BAKER: I will ask that counsel for 20 Monsanto produce any correspondence, memoranda or 2 1 other records in Monsanto's possession or control 22 concerning this incident in the 19 5 0 ' s in Indiana. 23 MR. CHAMBERS: Okay, that would be 24 correspondence with this Dr. Spolyar, other Indiana 25 authorities relating to this I assume. 35 WATER PCB-SD0000047' 1 MR. BAKER: Indiana authorities or any 2 persons employed by or assisting the facility there 3 that had the workers, or if there were anything 4 directed to the workers, I couldn't expect that, but 5 any correspondence to or from Monsanto concerning 6 this incident in Indiana. 7 (Discussion was had off the record.) 8 Q. (By Mr. Baker) It's your testimony that 9 when this doctor employed by the State of Indiana 10 called you and said -- and if I mis state what you 11 said, stop me, I'm trying to paraphrase this from my 12 recollection; said, "We've had a leak and this stuff 13 has come out and some workers had developed 14 j aundice," your reaction to that was you weren't 15 surprised that they got j aundice from contact with 16 4V* nAB i e0 fHl fV* 1B1S f^ f 8^ IS0 fV AhB afV a ^f a i OvB1 0fi i" a fV1 *A0TAUn*0dAfal fV1 ?A 17 A. Yes, if they had as much exposure as they 18 said they had. 19 Q. How much exposure did he say they had? 20 A. Well, it leaked for three days and you 2 1 could sme11 the stuff fairly strong. He didn't 22 measure it. 23 Q. Was it exposure received through the air or 24 did the liquid pour out on to their clothes, or to 25 the best you can recall what kind of exposure did 36 WATER PCB-SD0000047 1 they have? 2 A. It was through the air. In other words, 3 they had these pipes running in this relative small 4 room and it leaked and dripped on the floor. They 5 didn't pay too much attention to it. 6 Q. So you know of no evidence that their clothes were saturated or that they had skin contact 8 with the liquid? 9 A. No, sir. 10 Q. Okay. You said that in part of your 11 response to this line of questions you said that 12 work that you had done in 1954 had targeted the 13 liver. Tell us about that work and what caused it 14 and what you did in 1954. 15 A. Well, in 1954 we were using this material 16 as a diecasting hydraulic fluid and, of course, 17 that's at elevated temperatures. These dies are 18 hot, or the metal is hot, and when you get contact 19 with this at elevated temperatures you get 20 volatilization. So we wanted to know what happens 21 if there was a big leak and a lot of this came down 22 and hit hot metal. Could the man have time to turn 23 off the machine to close the valves and get out? 24 So we ran this, what was fairly 25 extensive repeated inhalation test on a variety of 37 WATER PCB-SD00000471 1 animals; dogs, cats, guinea pigs, rabbits at the 2 University of Cincinnati and came out with a couple 3 of safe levels that workers could be exposed to, and 4 these levels were eventually chosen or selected by 5 the American Conference Of Governmental Industrial 6 Hygiene as safe levels for using 1254 and 1248. Q. When were these levels selected by that 8 organization? 9 A. I guess it would be the late '50's 10 Q. Now, you began this work in 1954. Was that 11 before Pydraul was marketed? 12 A. Well, it may have been marketed for other 13 purposes. I don't know if this was done 14 simultaneously, whether it was used or not, I don't 15 know. 16 Q. Was it the marketing of Pydraul as a 17 fire-resistant lubricant that led you to conduct 18 this study? 19 A. Sorry, what did you say? 20 Q. Was it the plan to market Pydrau1 as a fire-resistant lubricant that caused you to do this 22 study? 23 A. No, not a fire-resistant lubricant. That 24 was a hydraulic fluid that was pushing the dies back 2 5 and forth. I don't know if the lubricants are -- 38 WATER PCB-SD0000047 1 it's my impression it's not subjected to that type 2 of heat. 3 Q. Was the product that was being used, is it 4 a hydraulic die, a hydraulic fluid to push the dies? 5 A. That's correct. 6 Q. Was that product Pydraul? A. Well, I don't know what they used at that 8 time. I think so. 9 Q. Before we go on, was there anything 10 published from your work in 1954 concerning PCB's 11 and the liver? 12 A. What, the -- 13 Q. The liver. 14 A. Well, in the paper by Treon he talked about 15 what the effects of the animals were. He talked 16 about the liver. 17 Q. You referred to a second incident at the 18 Crown Chemical Company in New York. In a little 19 more detail, tell us what you can recall about that 20 incident. 21 A. Well, this started as a letter I believe. 22 This man wrote a letter and said, "I've got some 23 people, couple of workers, who were exposed to leaks 24 at a heat transfer agent apparatus and they've been 25 nauseated and they aren't feeling so well. What can 39 WATER PCB-SD00000471 1 you tell me about them?" I said, "Well, first of 2 all, stop the exposure. If they got leaks, get them 3 out of there and fix the leaks. Secondly, be sure 4 and check the liver and be sure that -- they may 5 very we11 have developed a chemical hepatitis which 6 shows up with jaundice." So he either called me back or wrote 8 me back, said, "You were right. These people did 9 show up with j aundice. We hospitalized them f or 10 four or five days and now they are back to work and 11 they are doing fine-" 12 That's about all there was. I think 13 there was correspondence on them but I don't -- I 14 don't know where it is. I don't have it. 15 Q. Did you ever see any of the se patients ? 16 A. No. 17 Q. Did you ever visit the Crown Chemical 18 Company in New York concerning this incident? 19 A. No, not I. Whether or not a salesman or 20 marketing representative went over there or not, I 2 1 don't know. 22 Q. Was this similar to the situation in 23 Indiana where they were exposed to PCB' s through the 24 air ? 2 5 A. Yes, there was no mention made of dermal 40 WATER PCB-SD0000047 1 nn f a ^Cu a 4 y a Vs) y g 2 Q. And then you referred to a third incident . 3 First, the one in New York, do you have any idea 4 what part of the 19 5 0 ' s that would have occurred in? 5 A. No, but there is a letter someplace. 6 MR. BAKER: We will ask counsel for Monsanto to produce all copies of correspondence, 8 memoranda or other documentation to or from Monsanto 9 concerning the Crown Chemical incident described by 10 the witness, and we will put that in written form 11 also. 12 MR. CHAMBERS: Appreciate that. 13 Q. (By Mr. Baker) You referred to a third 14 incident with Dr. Meigs I be1ieve somewhere in New 15 England? 16 A. I think it's Connecticut. Joseph Meigs, 17 M-E-I-G-S. 18 Q. Did Dr. Meigs contact you personally? 19 A. Yes. 20 Q. To the best of your recollection what did 2 1 he tell you? 22 A. He said, "We've got this heat transfer 23 thing up here, it's outside, and we've got some 24 people that have got chloracne. It's a very mild 25 type of chloracne, and what do you know about it ?" 41 WATER PCB-SD0000047: 1 I said, Well, that's the first chloracne I've heard 2 for a long time that occurred." And that's about 3 it. 4 They tightened up the leaks or 5 whatever it was, it was a temporary deal, but he 6 wrote it up anyway, so it's in the literature someplace. 8 Q. II ththininkk II kknnooww ththee aannswer to this, 9 any o f thes e pe rson s ? 10 A, No, I did not. 11 Q. Did yo u vi sit the f a 12 A, No, i did not. 13 Q. Was th ere any ment ion 14 ibil ity of jaundice or 15 instance? 16 A Well, I'm sure I asked them if they have 17 anything else, and by this time, I th ought this WAS 18 probably the late ' 50 ' s , he was also associated with 19 Yale or something. He was an academic man as well 20 as -- I'm sure he ran everything on it because he 2 1 couldn't find anything except this chloracne. 2 2 As I said, some of the people, the 23 chloracne was not recognized either by the plant 24 doctor or by themseIves until a dermatologist came 25 over and found these few pimples and said, "Well, 42 WATER PCB- 1 that's chloracne." It wasn't a very big deal, 2 rankly. 3 Q. Were these persons exposed via the air or 4 did they have any skin contact? 5 A. The air, presumably. I can ' t answe r that 6 but I don't recall them saying anything about skin rtTI 4* aC\j aJ> b -* be 8 Q. Do you recall any correspondence to or from 9 this doctor? 10 A. I think there was a letter there someplace. 11 MR. BAKER: I will again ask for the same 12 documents concerning this instance from counsel for 13 Monsanto. 14 MR. CHAMBERS: No problem. 15 Q. (By Mr. Baker) Doctor, we've been going a 16 1ittle bit over an hour. Would you like to take a 17 short break or you want to keep on going? 18 A. I'm all right. 19 Q. I don't know if I can hold out as long as 20 you can but I'll keep trudging through for a while. 2 1 A. Just ask me. 22 Q. Was there any other testing? You mentioned 23 the testing in 1954. Was there any other testing of 24 PCB products by Monsanto before 1960? 25 A. With the exception of I did say that we 43 WATER PCB-SD0000047 1 might very well, and probably did, run our basic 2 toxicological package on several of the PCB's. I'm 3 sure we did that. 4 Q. Do you have any specific recollection of 5 doing that on any particular one? 6 A. No, sir, I don't. Q. So you don't recall doing it but you 8 believe you would have done it on some of them? 9 Ai Yes, I feel quite sure we did. 10 Q. From the period 1960 through 1966 do you 11 recall doing any PCS testing at Monsanto? 12 A. No, sir, not specifically. We may, but I 13 don't recall any. 14 Q. Do you recall any customer complaints or 15 customer inquiries concerning the safety of PCS 16 products during that period? 17 A. Through '66? 18 Q. Through '66. 19 A. No, none. 20 MR. CHAMBERS: Let me ask this for purposes 21 of clarification: Your last question was about 22 customer complaints or inquiries? 23 MR. BAKER: Yes. 24 MR. CHAMBERS: And by "inquiries" were you 25 asking about just a letter where somebody wrote and 44 WATER PCB-SD00000472 1 said we're buying this product, what can you tell us 2 about it? Or were you thinking of inquiries in the 3 sense of more specific situations like Dr. Kelly 4 told us about? 5 Q. (By Mr. Baker) Just so we're clear on that 6 then, during the period 1960 to 1966 do you recall 7 any inquiries from customers asking you about the 8 safety of any of the PCB products? ,9 A. Well, I don't recall any but we might very 10 well have gotten them. We got 20 letters a week on 11 various products, you know. A new customer would 12 buy any one of our products and they have the ,13 bulletins and all that but somebody down the line ,14 would write in and say Can you tell me something 15 about this product? And we answer it. So that 16 might very well have occurred but that doesn't stand 17 out in my mind because we did not have very many 18 inquiries at all. I mean it was pretty low on the 19 amount of inquiries we got from customers on PCB's 20 up until '66. 21 Q. There was a reason I used '66 and we'll get ,22 to that in a moment but during the period before 23 1966 -- I hate to keep using these different time 24 periods for you but there's a reason for this. 25 Let's say for the ten years prior to 1966 -- and our 45 WATER PCB-SD0000047; 1 company began purchasing Pydraul about 10 years 2 before that. '56 or '57 was the first purchase. 3 But, say, in that decade from 1956 to 1966, if 4 someone wrote to Monsanto and said, We're 5 considering using Pydraul AC. What can you tell me 6 about the safety health aspects of that? What would your response have been? 8 MR. CHAMBERS: Just object to the form to 9 the extent it calls for speculation the way it's 10 f rained. 11 A. I'd write them back and say what we knew 12 about Pydrauls. We would write them back, we would 13 send them our bulletins on it where there was safe 14 handling data in it and we would tell them how to 15 protect the worker from any chemical hazard by 16 avoiding -- two obvious methods were to avoid 17 repeated or pro longed skin contact and do not inhale 18 the material in confined spaces or at elevated 19 temperatures. Sure, we would tell them whatever we 20 knew about it. 2 1 Q. (By Mr. Baker) Why don't you tell us right 22 now to the best of your recollection what you knew 23 about the health and safety aspects of Pydraul AC 24 between 1956 and 1966? 25 A. Well, we knew that it was a compound, an 46 WATER PCB-SD0000047: 1 industrial chemical, which, obviously, it's not 2 supposed to be taken internally. We knew that there 3 was a relatively low order of toxicity for a 4 compound, an industrial chemical. It was something 5 1ike 2 1/2 to 4 grams per kilogram for an LD^q for 6 animals, and that '"s relatively low f or an industrial 7 compound. It's much lower than, say, ethylene 8 glycol that you use for radiator fluid. It's really 9 comparable from an acute point of view to salt I 10 must say, but you can take 4 grams per kilograms of 11 salt and you've got troubles. 12 So we knew that if you volatilize the 13 stuff and breathe it in a confined space, we knew 14 that you could have a level of half a milligram per 15 cubic meter of the air and breathe that for eight 16 hours a day without trouble, but if you got up to 3 17 or 4 milligrams per day, you would probably have to 18 watch it. 19 Now, we also did say we had no reports 20 of any ill effects in our workers manufacturing 21 material in our customers we have been selling to 22 for whatever years we might have been selling it, 23 and that' s about what I told them. 24 Q. So between 1956 and 1966 -- I'll try to 25 summarize this, but correct me if I'm wrong -- you 47 WATER PCB-SD0000047 1 would have essentially told them not to have 2 prolonged skin contact? 3 A. Or repeated. 4 Q. Prolonged or repeated skin contact and not 5 to breathe it in large quantities in small spaces? 6 A. At elevated temperatures. Q. And elevated temperatures. 8 A. Yes, the material does not volatilize at 9 room temperature. 10 Q. And other than that, you wouIdn't have told 11 them of any potential health hazards during that 12 period 1956 to 1966? 13 A. Well, if they did that, there were no 14 health hazards. 15 Q. Let's move on then from 1966 through 1970. 16 What did you learn in 1966 or 1967 that might have 17 changed your thinking concerning PCB'e? 18 MR. CHAMBERS: Object to the form to the 19 extent it refers to a change in thinking. I guess 20 you're just working to lay that foundation, but go 21 ahead and answer, if you can. 22 MR. BAKER; Let me rephrase the question 23 t hen. 24 Q. (By Mr. Baker) Did you learn anything in 25 1966 or 1967 that did change your thinking 48 WATER PCB-SD0000047 1 concerning PCB's? 2 A m Y6S 3 Q. Okay, what was that? 4 A. We learned that the material was -- I want 5 to phrase this correctly. Previous to that time we 6 believed that here is a material that is not really 7 active, it is insoluble in water, it resists 8 alkalies. We thought when it was discarded in a 9 landfill or in some cases in a body of water it 10 would lie there like a lump of coal or piece of 11 gravel for then on. 12 In 1966 or '7 Swedish work occurred 13 that showed the material was showing up in the 14 aquatic environment around the waters of Sweden. 15 Later on it was showed that it was picked up by -- 16 they found it in birds and they traced it back to 17 the rivers and they found out that the material was 18 metabolized by the minute marine organisms like 19 plankton and algae, and then the shrimp would eat 20 the algae and the fish would eat the shrimp and the 21 birds would eat the fish and it would end up in the 22 bald eagle or the peregrine falcon that caused 23 metabolic problems with their egg laying. 24 So we found that out, it was -- I say 25 we found it out, it was found out by workers of 49 WATER PCB-SD0000047: 1 Sweden that were working with DDT, and DDT and PCS 2 have a very close analytical spectrum. I'm not an 3 analytical chemist so I won't go into that, but for 4 a whi1e there was quite a -- not a hassle but quite 5 a discussion of what are we finding here? Is it DDT 6 or PCB's? Well, eventually it was shown it was both and it was PCB's, and that PCB's could be 8 responsible for the disturbance in calcium 9 metabolism in birds. So we recognized it as an 10 environmental pollution agent. 11 We also found out it was present in 12 the food chain, that it was present in game fish and 13 it was present in milk, because I don't know whether 14 this came because of contact with the forage that 15 the cows ate or how they got it, but we then -- what 16 was the question now? 17 Q0 The question was -18 A. Have I answered it yet? What did we do or 19 what did you ask me? 20 Q. We haven't gotten that far yet. Question 2 1 was, first: Did something happen in 1967 and 1960? 22 Did you do something in relation to PCB's? The 23 answer was yes. And the question was: What was 24 that? That's how we got on this subject. Let me 2 5 ask you a few questions about it. 50 WATER PCB-SD00000472 1 Had you suspected before 1966 that ,2 PCB's might be similar to DDT that they might show 3 up in some o f these birds or fish? 4 MR. CHAMBERS: Object to the form of the 5 question, but go ahead and answer, if you can. Am ,6 No I didn't suggest it. I mean I didn't suspect it. No government body suspected it. 8 Nobody at Monsanto suspected it. 9 Q. (By Mr. Baker) I'm just asking you about 10 you personally. ,11 A. Me personally, no I didn't. 12 Q. You didn't suspect that. Were you familiar 13 prior to 196 6 of evidence of a DDT problem in birds? 14 A. Just what I read in the newspapers. I mean 15 here we have DDT that's really broadcast widely I 16 mean and there was all the opportunity in the world 17 for it to be spread into the environment as PCB's we 18 thought were -- well, DDT was a very active ,19 compound, it is an insecticide so that means it's 20 not like a lump of coal. We thought PCB's were a 2 1 nonreactive compound and, as I said, it would lie in 22 a landfill or bottom of a river like a piece of , ,23 gravel. So no I didn't suspect it. 24 Q. When did you first learn that PCB' s were 2 5 being found in these DDT studies? 51 WATER PCB-SD0000047: 1 A. Well, there you really have to 2 differentiate when I first heard it, which might be 3 in the newspapers, which is not a very scientific -4 Q. Well, the first time you had any indication 5 that this might be, when was that? 6 A. Might be? Q. Yes. 8 A. I think it was at the end of '66 or the 9 first part of '67. 10 Q. Was that in a newspaper story? 11 A. Yes, in Sweden. 12 Q. A Swedish newspaper or - 13 A. That's correct. 14 Q. Where were you when you saw this? 15 A. I didn't see it. I mean I was in 16 St. Louis, but I mean we had a plant office at 17 Brussels and somehow they got word of it. I don't 18 know whether it was picked up by any other 19 newspapers that were published in English but, in 20 fact, we didn't really know whose PCB's are we 2 1 talking about because we were a relatively minor 22 force in PCB's in Europe. We were the only PCB 23 manufacturer in the United States but I don't think 24 we had 10 percent of the market in Europe. There 25 was Prodelac, P-R-O-D-E-L-A-C, in France. There was 52 WATER PCB-SD0000047: 1 Bayer, B-A-Y-E-R, in Germany. These were the big 2 hitters, big manufacturers. There was one in Italy 3 and we had a plant in the United Kingdom, so we 4 weren't big in it over in Europe compared to the 5 French and the Germans were the big ones. 6 So at first they said, Well, okay, we 7 find it in the environment. Where do you find it in 8 the environment? Wei1, we found it in the waters 9 around the bays, the estuaries, around Sweden. Then 10 later on they found it in some feathers of birds in 11 a museum in Switzerland. I don't know why, but 12 these people kept stuffed birds for the past hundred 13 years and they pu1led out some of the feathers going 14 back to -- I don't know how far back they went and 15 found it there. Well, at first we had to -- as I 16 had said, there was considerable discussion, are 17 they finding it or not ? Eventually we came to the 18 conelusion, yes, they've got some equipment we don't 19 have that they go down to trace levels that we 20 didn't have the capability of doing, and, yes, they 2 1 are right. 22 Q. The first you heard of this Swedish study 23 was someone from your Brussels plant had seen it in 24 a Swedish newspaper and called you; is that the way 25 you first heard about it? 53 WATER PCB-SD0000047: 1 A. No, I don't think he saw it in a Swedish 2 newspaper. Whether it was picked up by other 3 newspapers on the continent or not, I don't know how 4 he got it. 5 Q. Did he call you personally? 6 A. No, I think he wrote, "What do you know about this?" And I wrote back and said, "I don' t 8 know anything. So why don't you go over and talk to 9 the fella and find out, or talk to the other 10 manufacturers and see what they know about it." 11 I mean that's about -- I'm a little hazy about what 12 happened about 1967, first part of 1967. 13 Q. Okay. So you got -- I believe you got a 14 letter from someone from your Brussels facility and 15 you wrote back to him? 16 A. That's correct. 17 Q. Did you call your superiors here and say, 18 We have a terrible problem, we need to deal with 19 this, or did you inform them of it or what was your 20 reaction ? 2 1 A. First of all, we didn't think it was a 22 terrib1e problem. So we found some in the 23 environment, but no problem existed at that time. 24 So I mean, so it's out there and we still think it's 25 not water soluble. We didn't be1ieve it was going 54 WATER PCB-SD0000047: 1 to be picked up or cause any harm to any of the fish 2 or anything else. We didn't know, so no, I didn't 3 call the superiors. 11 didn't sound like a crisis . 4 I talked to the research people in the department 5 that manufactured the material and said let's keep 6 following this and see what's happening. We didn't ignore it but we didn't think it was a three-alarm 8 fire. 9 Q. I couldn't understand you Did you say you 10 did report that to your superior or you did not? 11 A Did not. 12 Q. You did not, okay, but you talked to some 13 subordinates or co-workers? 14 A. Well, co-workers that were -- I talked to 15 the manufacturing people, I talked with the 16 marketing people, I talked with the research people 17 of the division of which PCB's were manufactured and 18 I said, "What do we know about it?" And they said, 19 "That's news to us too. We'11 keep after it and 20 see what happens, see what we can find out." 2 1 Q. So you wrote back to this person from 22 Brussels, and what did you ask him or tell him to 23 do? 24 A. "Go over and talk to this Swede, go over 25 and talk to Dr. Jensen and see what the score is." 55 WATER PCB-SD0000047: o1 Q Do you know whether that happened? 2 A. Oh, yes, he went over there several times. 3 Q. Did he write back to you or did he call you 4 or what do you recall happened next? 5 A. I don't know if -- I had one telephone call 6 with him but I don't know when it was. But whether 7 he wrote to the research people over here -- I think 8 he was sort of a research man over there, handled it 9 like a research man. 10 The big discussion at that time was? 11 Is this PCB or isn't it? So I think his feelings 12 were pretty much with the research people during 13 those early months of '67. I'm not that sure of the 14 exact time frame of it. 15 Q. At some point did you decide that there was 16 a problem that had to be dealt with? 17 A o If e s . 18 Q. Do you recall at what point you decided 19 that? 20 A. Wei1, I can't tell you the frame, the time 2 1 frame, but once we found it was getting in the food 22 chain, that was a problem. That occurred later than 23 evidence showed up that it was found in fish and the 24 other. I decided it's a problem when it was 25 definitely established that it was PCB out there 56 WATER PCB-SD0000047: 1 with a possibility of hurting the birds. 2 I mean we have two problems. One, if 3 the material is causing damage to wildlife and in 4 such a manner that you could wipe out a species; in 5 other words, if enough of these eagles got enough 6 PCB in them so when the females would lay eggs they 7 wouldn't have any calcium coating on it, you could 8 wipe out the whole species, and we certainly didn't 9 want to have any part of doing that. So that was 10 one, the damage to wildlife, which eventually was 11 the reason we got out of the business. 12 The other one was: Does the material 13 get into the food chain so it's liable to be 14 ingested in small amounts by people over a prolonged 15 period of time? And that was a problem because we 16 did not know the chronic toxicity of the material 17 over a lifetime. 18 Q. To the best you can recall, when did you 19 determine that this was PCB in the eagles and in the 20 other birds? 21 A. Be the late ' 60 ' s. I don't think you I 22 could put a year or date on it. It was probably 23 '69, end of '69. I'm not sure because there's a 24 man in California, that Riseborough, that was the 25 one that found it in some of the aquatic animals and 57 WATER PCB-SD0000047: 1 avians, the birds, and we had our people talk to him 2 and we were pretty convinced I believe that he had 3 the right information. 4 Q. To the best you can recall, when did you 5 determine that PCB was in the food chain? 6 A. I guess either '68 or '69. I can't be sure 7 of the date. 8 Q. Do you know what circumstances caused you 9 to determine that? 10 A. When our analytical people told me that in 11 their opinion Riseborough was correct. 12 Q. Who were the analytical people from 13 Monsanto who were involved in that? 14 A. A Dr. Robert Keller, K-E-L-L-E-R, a 15 Dr. Scott Tucker, T-U-C-K-E-R, and there was -- 16 William Richards of the analytical people, who was a 17 research chemist that was involved too in it. 18 Q. Which of those persons are still alive to 19 your knowledge? 20 A. They are all younger than me, they ought to 21 all be alive. 22 Q. Some of us may not have your longevity 23 though. To your knowledge you think all those are 24 still alive? 25 A. Yes, I think so. 58 WATER PCB-SD0000047: 1 Q. Do you know if they are still working for 2 Monsanto ? 3 A. Gosh, I don't know. I've been gone from 4 Monsanto for 18 years so I don't think Bob Keller 5 is. But Scott Tucker may, but I don't know. 6 Q. That's fine. What other contact did you or people at your direction have with the Swede? A8 c Well "" 9 MR. CHAMBERS: Just for purposes of 10 clarification, is this still looking at that '66-'67 11 time frame? 12 MR. BAKER: Between '66 and 1970. 13 A. Well, we sent a task force over -- when I 14 say "we," that was someone with the Organic Division 15 under which whose responsibility the manufacturing 16 and marketing of PCB was. They sent over this 17 Dr. Richards and Dr. Keller and Elmer Wheeler, who 18 was our industrial hygienist, who was sort of our 19 environmentalist at that particular time. 20 Q. You know approximately when they went over? 2 1 A. My guess is early '70 I believe. I 22 believe, I'm not sure. 23 Q. So other than your worker in Brussels you 24 don't know of any contact between '67 and '70? 25 A. Oh, no. You mean personal contact? No, 59 WATER PCB-SD00000472 1 I'm sure they had people that talked to Jensen or 2 Widmark. I know that research people in England 3 talked to them and I do not know if anybody besides 4 this man in Brussels went, I don't know that. 5 Q. Who were the research people in England who 6 would have been involved in it? A. I don't remember their names. 8 Q. Did you know a Dr. Garrett? 9 A. Who? 10 Q Dr. Garrett? 11 A Would you spell that? 12 Q Dv* A, e 1D3 sftiAv*AV*caUw4 O 13 A o Yes, J. W. Barrett I think. H 6 W & 3 3 14 research man. He may have been very well one of 15 them. 16 Q. He was a research man in England? ,17 A. Well, he was research and development and 18 I don't know his exact position but I think he was 19 higher in the chain of command than Wood was. 20 Q. Do you know if he is still alive or still 2 1 works for Monsanto? 22 A. I don't know anything about him. 23 Q. Who was the person in Brussels who first 24 contacted you about this? 25 A. David Wood. 60 WATER PCB-SD0000047 1 Q. Do you know if he is still alive? 2 A. I don't know. 3 Q. Do you know if he still works for Monsanto? 4 A. I don't know anything about him. 5 Q. Tell us what Monsanto did in response to 6 the news that Jensen had found PCB's. You said you 7 thought you heard about this in '66 or early '67 and 8 that you became convinced in -- you believe it was 9 the late ' 6 0's that it really was PCB's. 10 Between the time that you first heard 11 about it and the time that you became convinced that 12 it was true in that two to three-year period there, 13 what --- 14 A. First of all/ it wasn't two or three 15 years . Let's get the dates -16 Q. Okay. 17 A. We first heard about it -- Jensen did his 18 work in '66, late '66. I don't know what month. I 19 think the first time Wood had information or the 20 first time we got information was sometime in 1967. 2 1 I'm not sure of these dates/ remember. 22 Q. I understand. 23 A. So between that time and 1960 -24 Q. I don't want to trick you on the dates . I 25 believe you said you couldn't remember exactly when 61 WATER PCB-SD0000047; 1 you became convinced that this was PCB found in 2 birds and the eagles but you thought it was sometime 3 in '69? 4 A. I said either late '68 or early ' 69 . 5 Q. So between the time in 19 6 6 or '67 when you 6 first heard about the Jensen reports and in '6 8 or 7 ' 69 when you became convinced they were true, what 8 all did Monsanto do to investigate? 9 A. Well, I'm not sure I could say everything 10 they did because all of it didn't emanate from the 11 Medical Department. 12 Q. Everything that you were involved in or are 13 familiar with. 14 A. They did several things. One, they had a 15 lot of discussions with the European manufacturers 16 of PCB' s to find out what their action was or what 17 they knew about it or what they were doing. That 18 did not have anything to do with the Medical 19 Department. Most of the work was analytical, trying 20 to find out, are we correct in stating that this is 21 really PCB, and I think I told you that along about 22 sometime in '68 we became pretty convinced that it 23 was. We collaborated with Riseborough in the United 24 States, in California, who was the one that found it 25 resident in fish. We sent him samples for his 62 WATER PCB-SD0000047 1 analytical work. In fact, I think a member of our 2 department went out on Christmas Eve in '68 and met 3 him at the airport with the samples. We cooperated 4 with the government, who at that time was beginning 5 to get interested in it from the analytical point of 6 view o I don't know when we decided to start 8 our two-year toxicity. I think we started it around 9 -- we started discussing it sometime around in 10 1968. We wanted to do prolonged toxicity and you 11 have to first get some -- you got to decide on what you're going to do, so we did that by going up to 13 Chicago and talking to our consulting laboratory, 14 Industrial Biotest, which did the work for us. We 15 talked to the government about it and the Food & 16 Drug Administration and said, "Here's what we're 17 doing. Do you have any suggestions? This is what 18 we're going to do." And they said, "No, that looks 19 fine to us." 20 Then to run a two-year test takes 2 1 three years I mean, because first you got to run 22 range findings. In other words, in a two-year test 23 you give a dose that you know wi11 be positive and 24 you want to give a dose that you hope will be 25 negative and you want to get one in between and you 63 WATER PCB-SD0000047 1 hope that will be negative too. But to find out 2 what an animal can take over two years you have to 3 do this in dogs and rats, you give them various 4 amounts over a three-month period to see if they can 5 handle it. If they can handle it pretty well for 6 three months without any problem, you think, well, 7 this is a safe level and won't kill them. There' s 8 no sense in having a two-year test if you're going 9 to kill the animals in 18 months by too big a dose, 10 so that shoots six months right off the bat. Then 11 you're set with a dose, you give it for two years, 12 then you sacrifice the animals at the end of two 13 years. 14 Then you've got to run the pathology 15 reports on it, and that's another -- pathologist are 16 relatively rare specialists and they are relatively 17 slow. That's another three to six months, or three 18 months at least. Then you write the report. So 19 it's three years are shot. So I think if you look 20 at when we get the final -- we get quarterly reports 21 in between, but I think if we -- I don't know when 22 our reports are dated. If they are dated 19 71, that 23 means we really started in '68, so we started 24 sometime around that. 25 Then I do not know what the marketing 64 WATER PCB-SD0000047 1 people did about the customers at this time. I know 2 what they did in the ' 7 0 ' s, in the early ' 7 0 ' s , but 3 I don' t know what they did in '68. 4 Q. Why don't you tell us what you understand 5 or believe they did in the early '7 0's? 6 A. Well, that was -- yes, I know about that pretty well because Elmer Wheeler was spending 8 almost all his time on this conference with 9 government people, conference with Riseborough. He 10 went over to Sweden once, he went to The Hague once 11 about something, and we also brought it up to the 12 Corporate Development Committee of the Corporate 13 Executive Committee, which is the same thing. These 14 are the brass that runs the company. 15 We had five different meetings with 16 them from -- I think it was four or five from 1970 17 to '71. I'm not exactly sure when the first one 18 was. I thought it was early '70. And the upshot 19 was that we had to set up a program and they would 20 put a man in charge of the whole affair and it ended 2 1 up with Bill Papageorge. 22 We would write a letter to our 23 customers telling them about how to avoid 24 discharging the material to the atmosphere, I mean 25 to the environment. We would look at our own plants 65 WATER PCB-SD0000047: 1 where they were using it. To be sure, we would cut 2 down outflow from our plants. Then they would 3 decide whether or not some materials could not be 4 controlled, if there were open uses such as carbon 5 paper, which was just discarded and then thrown out, 6 and that had PCB's in it and went into a landfill or was burned or something like that. 8 We had plasticizers, which there is no 9 way to control it. We would start eventually 10 stopping selling that for those uses. All the way 11 up until 1975 or -- I think it was '75 when we 12 decided we were not going to manufacture it for any 13 uses at all except -- well, it was about '7 3 I think 14 we said we were not going to use it for anything 15 except closed systems, and then I think then we just 16 said we would only manufacture it for electrical 17 uses and then we stopped that when a substitute 18 became available. It wasn't one of our substitutes, 19 it was somebody else's, but we kept on with the use 20 for electrical work when they didn't have a 21 substitute. In fact, the government said, Don ' t 22 stop manufacturing it because the subways won't run 23 because you needed a fire-resistant fluid in the 24 transformer or generators, whatever cars, the subway 25 cars. In The White House, for example, there are 66 WATER PCB-SD0000047: 1 PCB transformers there. 2 And so eventually then we got out of 3 it. I'm not exactly sure when we made the decision 4 to get out but we got out before the Europeans 5 stopped manufacturing it, but they didn't. I don' t 6 think anybody imported it into this country. 7 Q. Okay, so sometime in '68 or '69 you began 8 your three-year, two-year toxicity study? 9 A. That's correct. 10 Q. Prior to that date had you done any chronic 11 testing or subchronic testing of PCB' s? 12 A. No, sir, not except that inhalation study, 13 because there's an industrial chemical, that we did 14 not think it was going to get into the food chain at 15 all. You didn't do two-year testing on detergents, 16 you know, or on radiator fluids and things like 17 brake fluids. You don't do that. 18 Q. But you didn't do any three-year testing 19 prior to 19 6 8 or ' 69 , did you? 20 A. That's correct. 2 1 Q. You did testing to determine what a toxic 2 2 dose was in that period prior to '68 or '69? 2 3 A. No, and to also determine what the levels 24 were that a worker could be exposed to from the 25 inhalation point of view, we did that. 67 WATER PCB-SD0000047 1 Q. But in any event, only for acute toxicity? 2 A. Well, no. The one that Kettering did in 3 '54 or the middle ' 5 0 ' s , that was sort of a 4 subacute thing. They weren't doing -- nobody was 5 doing a two-year testing on an industrial chemica1. 6 They weren't doing it. They still don't do it. 7 MR. BAKER: We've been going an hour and 45 8 minutes now. You mind if I take a break? 9 (A brief recess was taken.) 10 Q. (By Mr. Baker) Dr. Kelly, before we took 11 our break you were talking about actions that 12 Monsanto took after learning of the Jensen study. 13 Do you recall the ones that you mentioned? 14 A. Yes, we mentioned a point man for the whole 15 problem, which was Mr. Papageorge; tell our 16 customers about the problem of environmental 17 pollution, and also start our toxicological work, 18 clean up our own outflows. Also, arrange for 19 incineration of used PCB's at no profit to us. 20 There may be some others also. 2 1 Q. Okay. 22 A. And also decide which products would have 23 to be eliminated from manufacture if it had open 24 uses that could not possibly be controlled. 25 Q. You mentioned meetings with corporate 68 WATER PCB-SD0000047; 1 representatives. I think you said there were four 2 or five of them? 3 A. That's correct. 4 Q. In 1970, 1971? 5 A. Yes, sir. 6 Q. Is that correct? We have already begun the 7 deposition of Mr. Papageorge and he indicated, if I 8 recall, that he started in his position that you 9 referred to here January 1st 1970. Does that sound 10 about right to you? 11 A. I don't know if it was January the 1st, but 12 he started one of the first meetings we had. One of 13 the recommendations was to get somebody, so we had 14 one before Papageorge started. 15 Q. I guess what I'm trying to zero in on here 16 is: Did any of these things you referred to occur 17 before Mr. Papageorge started? You said you had one 18 meeting before that and decided to bring him into 19 that position, although he already worked for 20 Monsanto. But of the other things you've mentioned, 21 did those all come after Mr. Papageorge started? 22 A. No, no, I don 't think so. 23 Q. To the extent you can, tell us which of 24 those were begun before Mr. Papageorge came into 25 that position in early 1970? 69 WATER PCB-SD0000047: 1 A. Well, of my own knowledge, I can't say that 2 this occurred, but it's my impression that the plant 3 started looking at their outflow possibility of 4 contamination before Papageorge came aboard * I 5 don't know what the marketing people may have told 6 our customers before that. I don't know if there 7 were widespread letters sent before Papageorge came, 8 but my impression is information was given to 9 customers about the environmental problem before 10 that. 11 Q. Do you have any personal knowledge 12 concerning the information that was given to 13 customers before 1970? 14 A. No, sir. 15 Q. Do you have in your possession or control 16 any documentation that would demonstrate that 17 information was given to the customers concerning 18 this subject before 1970? 19 MR. CHAMBERS: Let me object to the form 20 just to clarify the reference to this subject being 21 the PCB environmental situation. 22 MR. BAKER: Well, we're ref erring to -- he 23 said information may have been given to customers 24 after 1970 concerning potential environmental damage 25 from PCB'So 70 WATER PCB-SD0000047: 1 A. After 19 7 0? I said before Papageorge came. 2 Q. (By Mr. Baker) Right. My question is: 3 Concerning that subject, environmental damage from 4 PCB ' s, do you have any documentation of any such 5 information being given to customers prior to 1970? 6 A. No, sir, I do not. Q. Do you recall having seen any 8 correspondence, memoranda or other documentation of 9 information being given to customers on that subject 10 prior to 1970? 11 A. No, but I don't think that would, in the 12 normal course of business, come across my desk. 13 Q. Let's go back now for a moment on some of 14 the things that were known prior to the 1966 or 15 early 1967 discoveries by Mr. Jensen. 16 First, you've testified about work 17 that Monsanto did in 1954. To the best of your 18 recollection, can you summarize what was found in 19 that study? 20 A. Yes, what was found was that the safety 2 1 level for the breathing environment for a worker for 22 an 8-hour.day was .5 mil1igrams of 1254 per cubic 23 meter of air. For 1248 it was 1 milligram. It was 24 found that the target organ was the liver. 25 Q. What do you mean by that last statement, 71 WATER PCB-SD0000047 1 that the target organ was the liver? 2 A. Well, that was where the focus of the toxic 3 effect of the compound was. 4 Q. To your knowledge, between the 19 5 4 study 5 and 1966 did Monsanto communicate to customers the 6 supposedly safe levels of 1254 or 1248 or any information concerning possible liver damage? 8 A. Well, I don't know -- it's a dual question. 9 Q. Then let's take the first half first then. 10 A. The first half, in our bulletins, we did, 11 in some of the bulletins, mention the accepted 12 levels by the Government Industrial Hygiene 13 Association. That's some of our bulletins. 14 Certainly, in letters and 15 communications from me to anybody that called asking 1 6 about the toxicity, we told them that, we told them 17 what the safe levels were. As far as saying it will 18 be able to cause 1iver trouble, if it were, we may 19 have. If it was a purchasing agent, I wouldn't 20 know. I mean if you go to a gasoline pump they all 2 1 say don't smoke, it's liable to blow you into the 22 next county. They just tell you what not to do. 23 We did say these are the safe levels 24 and these are the ways you handle it. Handle it 25 safely. 72 WATER PCB-SD0000047 1 Q. Do you recall whether any of the literature 2 regarding Pydr au1 ref erred to the safe 1eve1s for 3 ambient air limitations? 4 A. I don't rec a11. I mean -- I don't recall. 5 Q. Can you tell us in your opinion why that 6 literature should or should not have referred to this for Pydrau1 used as a fire-resistant lubricant? 8 A. Well, one of the reasons would be we did 9 not expect the use of it as a fire-resistant 10 lubricant to reach any significant levels in the 11 atmosphere. We -- what was the question again? 12 Q. In your opinion, why should or should not 13 your literature have mentioned the safe ambient air 14 1eve1s with regard to Pydraul being used as a 15 fire-resistant lubricant? 16 A. Well, one, we told the people how to work 17 under any possible hazard level. 18 Two, we knew that the average customer 19 that got the material was not in a position to run 20 analytical levels around his air compressor. Let's 2 1 face it, they wouldn't do it or would not be capable 22 of it. - 23 Three, we had no history at all of ill 24 effects of Pydraul on any of the workers, both in 2 5 any operation using PCB' s with any ill effects, with 73 WATER PCB-SD0000047 1 the exception of the acute episodes that I talked to 2 you about. It just wasn't any. That's not only my 3 opinion, it's Dr. Kimbrel's opinion, who was a PCS 4 expert for the government. She stated twice in 5 publications, environmental publications, that with 6 the exception of an occasional case of chloracne, 7 there were no systemic illnesses attributed to 8 workers using PCB's. 9 Q. Now, let's go back to the Drinker studies 10 and, frankly, the first I've heard of a subsequent 11 Drinker publication came from you today, so maybe 12 you could enlighten me a little bit more on this. 13 First, to the best of your 14 recollection, what was it that Drinker first 15 reported about PCB' s and what was it that he later 16 said after communications and exchange of examples 17 with you? 18 A. We're talking about one PCB which he 19 c1aimed was a PCB. He tested something that he said 20 was 1262 which he claimed was a PCB. It was either 2 1 1262 or 1260. I think it was in 1260 he said that 22 he found considerable toxicity in the material. 23 Upon inquiry by me as to where he 24 obtained the sample, he said he got it from Halo Wax 25 Corporation, so I sent him a sample, I don't know -- 74 WATER PCB-SD00000472 1 I think he said he had a 1260, and the closest we 2 had to a 12 6 0 was a 12 62 , and he was quite surprised 3 to find that the toxicity was less than a tenth of 4 what he had reported previously, so in a subsequent 5 paper in 1939 he stated that fact. In fact, I think 6 I'm almost quoting him directly when he said, "We 7 were surprised to find its toxicity was enormously 8 less than what we previously reported." 9 Q. Did he also find that the target organ was 10 the liver, that there was 1iver damage? 11 A. Yes. 12 Q. Are you familiar with a study done by 13 Mr. VonWeidle and others entitled "Observations of 14 Toxic Effects Resulting From Exposure to Chlorinated 15 Naphthalene and Chlorinated Phenyls With Suggestions 16 For Prevention" in about 1943? 17 A. Not familiar with it. I'm sure I've seen 18 it, but he, again, is coupling chlorinated 19 naphthalene -- did he say chlorinated biphenyls? 20 Q. Yes. 2 1 A. Well, really, it's tarred with the same 22 brush. That was really chlorinated biphenyl 23 benzene. There was 10 percent of chlorinated 24 biphenyl benzene into the Halo Wax that was sold. 25 There was 10 percent chlorinated biphenyl benzene 75 WATER PCB-SD0000047 1 and 90 percent chlorinated naphthalene, and they had 2 problems, no question about it. 3 Q. Okay, as I understand it, this was 4 published in a publication called the Rubber Aoe in 5 19 4 3 . Are you familiar with that? 6 A. Well, I've -- am I familiar with the 7 publication or with the paper? 8 Q. Both. , 9 A, Well, first of all, Rubber Ace is not a 10 highly scientific peer-reviewed journal, and so I 11 have seen the article but I'm not familiar with it 12 right today. But if you give me the article I'll be 13 happy to comment on it. 14 Q. Let me just ask you this: Do you know 15 whether Monsanto did any -- you testified about the 16 Drinker article or the Drinker study and said you 17 had communications with Dr. Drinker and that you 18 sent him a sample. 19 Do you know whether you or anyone from 20 Monsanto had any communications with 21 Mr. or Dr. VonWeidle concerning his report in 1943? 22 A. No, sir, I do not. 23 Q. You don't recall whether you did or you did 24 not have any? 25 A. Well, I didn't, and I don't know if anyone 76 WATER PCB-SD0000047: 1 from Monsanto did, but I do not recall seeing any 2 such correspondence. 3 Q. How did you determine that for Aroclor 4 1254, 0.5 milligrams per cubic meter of area was a 5 safe 1eve1? 6 A. Treon's work at the Kettering Institute 7 where he ran these inhalation studies on it. 8 Q. Briefly describe the kind of study that you 9 did on it, or they did for you. 10 A. That they did. 11 Q. Right. 12 A. You heat the material, put these animals in 13 a closed system, in a closed box, I don't know how 14 -- it's pretty good-sized chamber rather than a 15 box, and you heat the material outside the chamber 16 and you blow a current of air through it, over it, 17 and you blow these fumes into the chamber and you 18 analyze the air in the chamber until you get a 19 steady level of PCB in the atmos phere of the chamber 20 and you keep the anima1s in there for eight hours a 2 1 day for two or three weeks and then you see what 22 happens. You use different 1evels and you find out 23 what 1evel doesn't bother the animals. You 24 sacrifice them at the end. If there's no pathology 25 or no obvious distress to the animals, why you come WATER PCB-SD0000047 1 out with a level that you think is safe. 2 Q. That's where I'm having the difficulty 3 understanding this. You said a level that you think 4 is safe. Now I've heard about toxicity studies 5 where you would tell us a level that would kill half 6 of the animals. What, precisely, did you use to 8 determine or to judge what level was safe? 9 A. Well, I'd have to look at his report, and 10 I'm sure if you got it there I'll be happy to 11 comment on it because it was published. And not 12 only I decided, the government industrial hygienist 13 group which are a non -- no company representative 14 was on it, and the fact that OSHA people took this 15 same level, .5 milligrams per cubic meter , and said 16 this is a safe level. 17 So they analyzed Treon's work, they 18 analyzed what happened to the animals at higher 19 levels and what happened to them at this level and 20 level below, so I guess you just analyze the report 21 that the fella did. 22 Q. Do you recall after that report having 23 communications with people in factories or 24 facilities using Pydraul where they ask you what are 2 5 safe levels? 78 WATER PCB-SD0000047 1 A. Yes, if anybody ever asked us, we sent out 2 the material to them. It was written up in our 3 bulletins and when we approached a new account the 4 marketing man would carry this bulletin with him. 5 Q. Do you recall any internal correspondence 6 concerning what are safe levels in the 19 5 0 ' s ? A. Internal Monsanto? 8 Q. Monsanto, yes . 9 A. Well, I don't know the exact details. I'm 10 sure we just didn't take this report and file it. I 11 mean we wrote to the Organic Division and said 12 here's the results of a test at Kettering that it's 13 okay to use this as a diecasting fluid at elevated 14 temperatures. This gives you an idea of the amount 15 that the person could be exposed to without any 16 harm. 17 Q. Do you recall any oral or written 18 communications with Dr. Barrett in England 19 concerning safe levels? 20 A. I don't recal1 them. 2 1 Q. Dr. Kelly, was the question raised at 2 2 Monsanto concerning workers eating around the 23 production facilities with PCB's? 2 4 A. There was one plant in East St. Louis where 25 the workers wanted to eat around the plant and Jack 79 WATER PCB-SD0000047: 1 Garrett, who was an industrial hygienist of ours, 2 was drawn into the discussion and I think he was 3 sort of a patsy for the guys saying it was the 4 Medical Department's opinion they shouldn't eat 5 around it. Well, that's certainly true. I don't 6 think you ought to eat your lunch in a place where 7 they are making industrial chemicals, but he came 8 out with a couple of statements saying that they are g 1iable to get some Aroclor or PCB on your ham 10 sandwich or something like that, which was 11 nonsense. 12 That's the only case that ever came 13 up. These people wanted to brown-bag it and then go 14 over and play cards for the rest of their lunch hour 15 rather than going to their designated lunch room. 16 That's the only one that ever came up. 17 Q. Were you involved in that decision or 18 discussion at all? 19 A. No, I didn't see it until it surfaced in 20 one of these trials. 2 1 Q. Were you involved in an attempt by Monsanto 22 to obtain approval to use Aroclor as an adhesive in 23 food packaging? 24 MR. CHAMBERS: For the record, object to 25 the relevancy of questions about using Aroclor as an 80 WATER PCB-SD0000047 1 adhesive when this case is obviously a much 2 different application. 3 If you can answer that, Dr. Kelly, 4 you're welcome to. 5 A. Yes . 6 Q. (By Mr. Baker) Okay, approximately when 7 was that? 8 A. Gosh 1 Sometime after the food and drug 9 amendment was passed, which I thought was sometime 10 in the ' 60 ' s or something like that, I'm not 11 certain. 12 Q. What was your involvement in that effort? 13 A. Well, they had a lot of that material and 14 they used some of the acute toxicity work that we 15 had carried out and we submitted it to the food and 16 drug for use of theirs. 17 Q. Were you asked to give an opinion as to 18 whether this would be safe? 19 A. Yes, or we wouldn't have proposed it if we 20 didn't think it was safe. 2 1 Q. Do you know if this was before or after the 22 Jensen report, the first Jensen report in '66? 23 A. I don't remember. 24 Q. What was the result of this effort? 2 5 A. They turned it down. 81 WATER PCB-SD0000047: 1 Q. Do you recall approximately when it was 2 turned down? 3 A. Probably six months after it was sent in, 4 but I don't recall when it was sent in. 5 Q. Did you ever try it again? 6 A. Well, they did some more work on it but I 7 don't know whether they did more elaborate 8 extracting work or not. We may have done a little 9 more toxicity, but at any rate, it was turned down 10 the second time, so we gave it up. 11 Q. And your personal opinion was it was safe 12 to use as an adhesive in food packaging? 13 A. Certainly, yes. 14 Q. Were you involved at any time in advising 15 Monsanto as to what should be included on labels of 16 products that contained PCB ' s ? 17 A. Yes, sir. 18 Q. When did you first begin advising Monsanto 19 on that? 20 A. Probably sometime after 1946. 21 Q. Do you recall after 1946, what the 22 containers of PCB products said? 23 A. What they said as far as what? The whole 24 label? 25 Q. Can you, in general terms first, tell us 82 WATER PCB-SD0000047 1 what kinds of information was on the labels of PCB 2 products starting in 1946? 3 A. Well, it said what the Monsanto trademark 4 "" trade name for the compound was. It said how 5 much was in it. It said -- the only part the 6 Medical Department had to do with it was to put down 7 the safe handling procedures to avoid any ill 8 effects . 9 Q. Between 1946 and 1970 do you recall at any 10 time changing the safe handling information on 11 labels for PCB products? 12 A. At one time there was either some state 13 directive or government directive that mandated for 14 any compound. If it was a chlorinated hydrocarbon 15 you had to have certain data on the label, and we 16 put that on the PCB's because it was a chlorinated 17 hydrocarbon. 18 Q. Do you recall approximately when that would 19 have been? 20 A. No, I don't. 2 1 Q. Do you know whether it was before or after 22 1970? 23 A. Before or after 1970? 24 Q. Yes. 25 A. I thought it was before. 83 WATER PCB-SD00000472 1 Q. Other than the change you referred to that 2 was required by the governmental agency, do you 3 recall any changes between 1946 and 1970 in the safe 4 handling language on PCB product labels? 5 A. I don't think there were any basic changes. 6 Q. I want to show you a set of documents that 7 have been collectively marked as Plaintiff's Exhibit 8 12. I wi11 tel1 you that these were produced to us 9 by Monsanto in response to a request for labeling 10 from Pydraul AC products, and ask you just briefly 11 to look through this and then I'll ask you a couple 12 of questions about it. 13 A. Yes, sir, I looked through. 14 Q. Let me ask you these questions backwards. 15 Do you recall any other safe handling information 16 that was at any time to your knowledge on Pydraul AC 17 containers? 18 MR. CHAMBERS: Just for purposes of 19 clarification, are you referring to any period of 20 time or -- 2 1 MR. BAKER: From the time Pydrau1 AC was 22 first produced in the '50's until production was 23 ceased in the early 1970's, at any time at all. 24 A. There may have been environmental warnings, 25 but as far as safe handling for the workers 84 WATER PCB-SD0000047: 1 concerned, with the exception there may have been 2 s ome editorial changes, but the basic informat ion 3 was the same. 4 Q. (By Mr. Baker) Do you recall any 5 environmental warnings that were ever included on 6 the Pydraul AC containers ? 7 A. No, but if the material was still 8 manufactured after 1970 or '71, I would have thought 9 -- we 11, it was my impression that the 10 environmental stickers or environmental 1abe1s were 11 put on all compounds containing PCB's. 12 Q. Do you think that would have been after 13 1970 or 1971? 14 Ac Yes, I think so. 15 Q. Prior to 1970 are you aware of any labeling 16 on Pydraul AC that would have mentioned PCB at all? 17 Ac You mean the acronym PCB? 18 Q. Either PCB or polychlorinated biphenyls. 19 Ac No, I don't think soc 20 Q. Now, these labels did say chlorinated 2 1 hydrocarbons but did not refer in any way to 2 2 polychlorinated biphenyls; is that correct? 23 A. No, but you must remember that before 19 7 0 24 PCB's was not a household word, or polychlorinated 2 5 biphenyls was not a household word, so that adding 85 WATER PCB-SD0000047: 1 that to Pydraul AC would have added nothing of 2 information to the label. 3 Q. Let's refer to the first page here in 4 Plaintif f ' s Exhibit 12. 11 has the production 5 generated by Monsanto, the information at the 6 bottom, EQU, which refers to this case, page number 7 13 7 5 7 . Do you have that in front of you? 8 A. Yes. 9 Q. To your recollection is this a label that 10 was on a can or container of Pydraul AC? 11 A. Yes. 12 Q. Could you read the label from after the 13 caution and tell us exactly what it says ? 14 A. "Contains chlorinated hydrocarbons. Avoid 15 prolonged breathing of vapors or mists. Avoid 16 contact with eyes or prolonged contact with skin. 17 If skin contact occurs, remove by washing with soap 18 and water. Following eye contact, flush with 19 water. If clothing becomes soaked with fluid, 20 1aunder before wearing again." 2 1 Q. Were you, in part, responsible for that 22 language? 23 A. Yes, g j" 24 Q. How big a role did you play in that? 25 A. I'd say 90 percent. 86 WATER PCB-SD0000047: 1 Q. Did you or anyone else at Monsanto consider 2 including any additional wording after the word 3 "caution"? 4 A. No, sir. 5 Q. Did you consider including any instructions 6 about washing clothing other than clothing that has become soaked? 8 A. No, I don't know how you could quantify -- 9 I mean maybe soaked may not be the best term in the 10 world but I think we give the American workers 11 enough -- we have enough be1ief in the common sense 12 that he knows when your clothes get wet with 13 industrial compound you take them off and have them 14 1aundered. 15 Q. I agree with you that I think most workers 1 6 would have them laundered if they become soaked with 17 fluid or wet with the product. 18 Did you consider having any suggestion 19 or instruction that they should be 1aundered even if 20 they did not become wet with the fluid? 2 1 A. You mean if the man is wearing a pair of 22 coveralls-and does it have any fluid on them, on the 23 coveralIs ? They should be laundered anyway. 24 Q. My question is: At any point did you 25 consider issuing a warning on that? 87 WATER PCB-SD0000047; 1 A. No, sir, we didn't. 2 Q. Did you consider issuing a warning on 3 breathing of vapors or mists without the word 4 "prolonged"? 5 A. Say that over. Did we -6 Q. Your first statement here says, "Avoid 7 prolonged breathing of vapors or mists." 8 Did you consider a warning or a 9 statement on the label that would have deleted the 10 word "prolonged" or to the effeet of avoid breathing 11 of vapors or mists? 12 A. No, sir, because we didn't think it was 13 necessary. Not talking about hydrogen cyanide when 14 you take one whiff and you drop dead. If you have a 15 spill you can smell the stuff but, certainly, you 16 can clean it up. You don't have to avoid breathing 17 in vapors for that period of time. 18 Q. You've also said avoid any contact with 19 eyes or prolonged -- or avoid contact with eyes. I 20 Added the word "any," but avoid contact with eyes or 2 1 prolonged contact with skin. Did you at any point consider advising the avoidance with any contact with skin? 24 A. No, sir, because if a man gets some on his 2 5 hands, he washes it off. The answer is no. 88 WATER PCB-SD0000047: 1 Q. Did you at any point consider whether the 2 1abe1 should refer to PCB's or polychlorinated 3 biphenyIs? 4 A. I think I answered that. I said that we 5 didn't think saying Pydraul AC present, that if they 6 advertise polychlorinated biphenyls, phosphate ester, adds anything to a workman's knowledge about 8 the product. 9 Q. And for the period 1966 to 1970 you did not 10 consider that the word "PCB" added anything to the 11 customer's knowledge? 12 A. Well, remember -- the answer is no, with an 13 explanation. The reason -14 Q. Feel f ree to explain any answer you want to 15 give. 16 A. Fine. In a labe1 you are talking about 17 preventing harm to the user of a product. The 18 danger after around '69 and '70 was to the 19 environment, it was not to the worker, so we didn't 20 see -- until we put our environmental cautions on 2 1 the labels we didn't think it was necessary to add 22 anything such as you have suggested. 23 Q. Did you consider at any point with regard 24 to the Pydraul AC label any mention of potential 2 5 1iver damage? 89 WATER PCB-SD0000047 1 A. No, sir. 2 Q. Did you, prior to 1970 or '71, when a state 3 or federal agency may have required you to do that, 4 did you consider any labeling concerning potential 5 environmental damage? 6 A. What dates? 7 Q. Prior to '70 or '71. The reason I picked 8 those out r I think you had testified earlier that in 9 1970 or 1971 a governmental agency required that you 10 put an environmental sticker on certain containers. 11 A. They didn't require it. We put it on 12 ourselves. 13 Q. I may have misunderstood that, but prior to 14 that time did you consider putting on the label any 15 information concerning potential environmental 16 damage? 17 A. I think you would have to ask the 18 manufacturing people that. I'm not in a position to 19 answer that. 20 I believe as far as the Medical 2 1 Department was concerned, we knew that the customers 22 were getting some information from the marketing 23 people, although it was not formalized until Bill 24 Papageorge came on board. But he came on you said 25 the first part of January of '7 0 -- 90 WATER PCB-SD0000047; 1 Q. His testimony was January 1st 1970. 2 A. Well, before that I don't know how 3 information got out to the customers. I know there 4 certainly were inquiries because Elmer Wheeler had 5 inquiries. People would read the stuff in the 6 newspaper and say, What about this ? Q. I will ask you to turn -- the easy way 8 would be go to the very back page and work forward 9 three pages. There's a label there for 10 Pydraul AC A. Are you familiar with this label? 11 A. No, sir, I don't recall much about this 12 label. 13 Q. I believe the wording after "caution" on 14 this one is -- while it's in a different kind of 15 print I believe it is exactly the same as the AC 16 1abe1. Is there anything that you see there that 17 you believe is different? 18 A. No, sir, I don't see anything different. 19 Q. Are you familiar with the product 20 Pydraul AC A? 21 A. Vaguely, not -- 22 Q . Let me try to re f re s h your recollection. 23 Mr. Papageorge testified previously in this case 24 that this was a product that was made for a period 25 of about a year between -- and don't hold me to the 91 WATER PCB-SD0000047: 1 months -- but between mid '70 and mid 1971, and said 2 that the product did not contain PCB's but contained 3 PCT' s. Does that in any way refresh your 4 recollection of the product? 5 A. Vaguely, but I do not know too much about 6 it. Q. Were you consulted at all concerning the 8 labeling for this product? 9 MR. CHAMBERS: Let me object for the record 10 to the relevancy of inquiring about Pydraul AC 11 labels, but go ahead and answer, if you can, 12 Dr. Kelly. 13 A. Well, I'm sure that somebody in the Medical 14 Department was, whether it was Elmer Wheeler or 15 myself or doctor -- at that time maybe Dr. Rausch 16 was there then, I'm not sure, but all safe handling 17 data on labels -- all labels were submitted to the 18 Medical Department, so somebody in our department 19 saw it. 20 Q. (By Mr. Baker) Do you recall any 2 1 discussions concerning the Pydraul AC A label? 22 A. No, sir, I don't. 23 Q. Did Monsanto manufacture other chlorinated 24 hydrocarbons besides PCB's and PCT's ? 25 MR. CHAMBERS: Let me object to the 92 WATER PCB-SD00000472 1 relevancy of that line of questioning as well, but 2 go ahead and answer, if you can, Dr. Kelly. 3 A. Oh, gosh, yes, they manufactured a bunch of 4 t hem. 5 Q. (By Mr. Baker) Just for my information, 6 understanding the ob j ection as to the admissibility at trial of the information, can you give me some of 8 the examples of chlorinated bicarbons ? 9 A. PetrofereIon. 245T. Dichloro benzene. 10 There's a bunch of them. 11 Q. Were you involved in advising Monsanto as 12 to what should be contained on the labels for some 13 of these other products? 14 A. Yes. 15 Q. To your recollection were there any 16 material differences in the labeling of PCB products 17 and other chlorinated hydrocarbon products ? 18 A. I can't recall. We may have had more -- I 19 can't recall whether there was any. 20 Q. Going to show you a document that has been 2 1 premarked Plaintiff's Exhibit 13, and this is not a 22 really good copy. If you need any help in reading 23 it, we'11 try to help. Ask you first to review that 24 document. 25 MR. CHAMBERS: Can we go off the record for 93 WATER PCB-SD0000047: 1 a second? 2 MR. BAKER: Sure . 3 (Discussion off the record.) 4 Q. (By Mr. Baker) Dr. Kelly, I probably 5 should have just told you to review the first two 6 pages of this document. Have you done that ? 7 A. Yes, I have. 8 Q. And I will state for the record that there 9 are four pages here that were produced to us by 10 Monsanto we believe stapled together in this form 11 and they are numbered chronologically. I don' t 12 personally know why the last two pages are included 13 with this and I don't intend to ask you any 14 questions about the last two pages, so we will focus 15 on the first two pages. 16 A. Thank you. 17 Q. Can you identify this first two pages of 18 this document? 19 A. Yes, it's a United States Department of 20 Labor Material Safety Data Sheet, Form Approved, 21 OMB, No. 44-R1387. 22 Q. Have you seen this document prior to today? 23 A. I'm sure I have. I have no recollection of 24 when. 25 Q. As part of your position at Monsanto in 94 WATER PCB- 1 1971 would you have been involved in the completion 2 of this form? 3 A. Either I or some member of my department 4 would have been. 5 Q. What was the purpose of this form? 6 A. Government sent it out and said you should 7 send this to any customer who asks for it. I'm not 8 sure whether or not it was supposed to accompany 9 shipment or not, I don't recal1 that. 10 Q. But any customer who asked for it, you 11 would send this to any customer who requested the 12 MSDS form? 13 A. Yes. But as I said, I don't know the 14 purpose of the Department of Labor had in making 15 this form. I mean I'm sure that they just didn't 16 send us a form and say fill it out. They must have 17 told us what to do with it. I don't recall what 18 their purpose was at that time. But we sent out 19 hundreds of these. 20 Q. On the front page there, Section I refers 2 1 to Aroclor 1254 , and that was the PCB product that 22 was contained in Pydraul AC I believe, was it not? 23 A. Yes. 24 Q. Section II says "Hazardous Ingredients," 25 and it appears this form is blank. I assume that 95 WATER PCB-SD0000047 1 the reason that section was blank is that none of 2 these items were included in Aroclor 1254, or is 3 there a different reason? 4 A. I wouldn't know why it was left blank. I 5 mean -- but they made catalysts, solvents, 6 additives, alloys, base metal, metallic coatings are 7 all left out. 8 Q. Should some of these have had an entry for 9 Aroclor 1254 ? 10 A. Beg your pardon? 11 Q. In your opinion should there be entries in 12 Section II for this product? 13 A. Well -- no, I don't think so. 14 Q. If you' 11 turn to the second page, up at 15 the very top there, and I'll read the small print 16 here, it's difficult. I believe it says "Threshold 17 Limit Value." This is not a good copy. But right 18 after that it has 0.5 milligrams I believe per cubic 19 meter of air? 20 A. Correct. 21 Q. Is that correct? 22 A. Correct. 23 Q. Now, that's the same limit that you 24 testified earlier you concluded was a safe amount 25 after the 1954 study? 96 WATER PCB-SD0000047: 1 A. Yes, sir. 2 Q. Were there any studies between 1954 and 3 1971 when this form was filled out to investigate 4 that further? 5 A. No, we had a pretty thorough investigation 6 of it in 1954 . Q. "Effects of Overexposure" is the next line, 8 and it refers to skin irritation in the form of 9 chloracne, systematic intoxication leads to nausea, 10 vomiting, loss of weight -- is that edema? 11 A e Edema. 12 Q. And abdominal pain I believe? 13 A Fain. 14 Q. Again, some of it is difficult to read, but 15 do you agree that's what that entry says? 16 A. That's what it says. 17 Q. Would you or someone in your department 18 have been responsible for that entry? 19 A Yest sir. 20 Q. Can you tell us why this does not refer to 2 1 either jaundice or any other liver damage? 22 A. No, but I guess they are really talking 23 about symptoms that you get from overexposure, and 24 you get nausea, vomiting, loss of weight, edema and 25 abdominal pain which you get from an enlarged liver, 97 WATER PCB-SD0000047: 1 so that anybody in any medical group would know, 2 looking at this, that the liver is the thing that' s 3 doing this. I think you are putting this in the 4 hands of lay people, and if you say "causes liver 5 damage," it would say, What symptoms do you get from 6 liver damage? Well, maybe we could have said j aundice, but that might be two weeks down the road, 8 so the earlier symptoms are nausea, vomiting, 9 abdominal pain. So I think that's more important 10 than putting down jaundice. Q. Do you recall whether there was discussion 12 about that wording? 13 A. No, I don't recall any. 14 Q. Do you believe reading this would have 15 caused a customer to have more concern if it 16 referred to liver damage than to vomiting or nausea? 17 A. I can' t answer what might be in a 18 customer's mind, I don't know. 19 Q. But you don't remember any discussion about 20 the effect this would have on a customer? 2 1 A. No, sir. 2 2 Q. The term "edema," can you tell us what that 23 means? 24 A. Edema means swelling of the subcutaneous 25 tissues. I don't know why that was in there. 98 WATER PCB-SD0000047: 1 Q. I won't ask you any more about that. 2 Section VII refers to spill or leak procedures. 3 Were you or someone in your department 4 responsible for the wording under this section? 5 A. No, that would have been Mr. Papageorge' s 6 department in May of '71. Q. If it's agreeable with you, I'll show you 8 one more exhibit and then we'11 take a break. 9 A. That's all right with me. 10 Q. This one I believe is four pages, all the 11 same thing, and it's been marked as Plaintiff' s 12 Exhibit 14. I'll ask you to take a look at that. 13 A. Yes, sir 14 Q. And I will say, I believe this may have 15 been prepared after you left employment with 16 Monsanto. 17 A. Six years afterwards. 18 Q. You've testified previously about 19 governmental required stickers and labels ? 20 A. No, I said at the time when I was 2 1 concerned, working with Monsanto, the government did 22 not require any. I don't know when they started it. 23 Q. Would the labels shown on the first page of 24 this be the kinds of labeling you referred to that 25 was required by the government at a 1ater date? 99 WATER PCB-SD0000047; 1 A. Say that over? 2 Q. That's a very bad question. 3 A. It is . 4 Q. You testified previously, if I recall 5 correctly, that at some date, at some point, you 6 weren't sure of the date, the government required 7 labels in the late '60'a or -- that they did not 8 require certain kinds of labels. 9 MR. CHAMBERS: Let me object again just to 10 form because I think that mischaracterizes what the 11 earlier testimony was. I'm not -- maybe we need to 12 go all the way back there and see if there has been 13 testimony that the government required labeIs. 14 MR. BAKER: Okay, let me just try to start 15 over because I don't want to mischaracterize the 16 testimony at all. 17 Q. (By Mr. Baker) To your knowledge, at some 18 point did the government require labeling of PCB 19 products? 20 A. Yes, sir. 2 1 Q. Do you know at what point that occurred? 22 A. After the Toxic Substance Control Act was 23 passed, TSCA, and I do not know when TSCA was 24 passed. It was passed sometime after 1974. 25 Q. Prior to that point do you know whether 100 WATER PCB-SD0000047: 1 Monsanto included the term "PCBH or "polychlorinated 2 biphenyls" on any of its labels? 3 A. I do not know. They may have, and I do not 4 know. 5 Q. Were you in any way responsible for the 6 information contained on this newer Material Safety 7 Data Sheet that is marked as Plaintiff's Exhibit 14? 8 A. No, sir. You say -- the last phrase is -- 9 Q. Marked as Plaintiff's Exhibit 14. 10 A. Ohf no. 11 MR. BARER: Well, I have no further 12 questions concerning this exhibit. It is almost 13 1:00 o'clock our time. 14 MR. CHAMBERS: That's right. 15 MR. BAKER: But it's just before noon 16 prevailing local time so I would propose that we 17 take. 18 (The lunch recess was taken, after 19 which the proceedings resumed as 20 follows.) 2 1 Q. (By Mr. Baker) Dr. Kelly, I'm going to, 22 over the next hour or two, go through a number of 23 documents with you. 24 A. Al1 right. 25 Q. Some of these I expect you have seen 101 WATER PCB-SD0000047; 1 before, maybe some of them that you haven't. If at 2 any time you want to go off the record to review one 3 that may be lengthy, just say so and we'll take a 4 break. 5 A. Yes, sir. 6 Q. I'm going to start with a document here that was marked as Plaintiff's Exhibit 15. It's 8 called the Pydraul AC Fact Finder. It's a copy of a 9 brochure that we believe Monsanto supplied to 10 certain customers of Pydraul AC. 11 A. Yes, sir, I've read it. Q. Okay, have you seen this document before 13 today, doctor? 14 A. Yes, I have. 15 Q. I asked a couple of other witnesses this 16 question and we haven't been able to find an answer 17 yet, so I will ask you. 18 Do you know roughly when this document 19 would have been prepared? 20 A What? 2 1 Q. Prepared? 22 A When it would have been prepared? 23 Q When, yes. 24 A e No, sir, I do not. 25 Q. Do you know whether there was more than one 102 WATER PCB-SD0000047; 1 edition of this document? 2 A. No, sir, I do not. 3 Q. Do you know whether there were any other 4 brochures or similar documents that would have been 5 sent to customers of Pydraul AC? 6 A. No, sir, I do not. Q. I'll ask you to turn to page 1457 in the 8 numbering system from the production of documents. 9 It's the third page from the back. 10 A. Yes, sir. 11 Q. That is just a cover sheet for the section 12 that says "Safe Handling"? 13 A. Yes, sir. 14 Q. If you turn to the next page I will ask you 15 a few questions about this page. 16 First, were you involved in any way in 17 determining what information went into this brochure 18 under the heading "Safe Handling"? 19 A. I can't be sure. I do not know whether 20 this was written during my tenure there. If it was, 2 1 I certainly was. If it occurred after December of 22 1974, I wasn't. 23 Q. I will tell you that I believe that we all 24 agree this was sent out we11 before December of 25 ' 74 . 103 WATER PCB-SD0000047 1 A. Then I was. 2 Q. Have you read this one-page section on safe 3 handling? 4 A. Yes, sir. 5 Q. Is there any reference in there to possible 6 liver damage? A. No, sir. 8 Q. Is there any reference here to means of 9 disposal of Pydraul AC? 10 A. No, sir. Well, not on that page. I don't 11 know if it were in any of the previous ones. I 12 didn't see them. 13 Q. Would your department have been responsible 14 for determining whether to include disposal 15 instructions in a brochure such as this or would 16 that have come from some other department? 17 A. It would have come from someone else. 18 Elmer Wheeler or I may have seen it beeause he was 19 very close to governmental authorities on 20 environmental aspects and the Manufacturing Group in 2 1 other companies. 22 Q. Can you identify what department within 23 Monsanto would have been responsible for determining 24 what information concerning disposal to include in a 25 brochure such as this? 104 WATER PCB-SD00000472 1 A. It depends on what time you're talking 2 about. If it were after 1970, it was Papageorge. 3 It was in the Organic Division all the time. They 4 changed the names of the company about every seven 5 years. It was Organic Division once, then it was 6 Monsanto Chemical Company some other time. 7 Q. From the period 1956 through 1970 what 8 information can you provide us concerning the name 9 of the department and the personnel involved and the 10 decisions -11 A. Well, the name of the department was 12 Functional Fluids and it was under the 13 responsibility of, I believe, what they call the 14 Organic Division at that time. 15 Q. What persons would have been responsible 16 for that between 1956 and 1970? 17 MR. CHAMBERS: Just for purposes of 18 clarification, by "thatH are you referring to the 19 disposal instructions or - 20 MR. BAKER: Determining what instructions 2 1 were to be provided to customers regarding disposal 22 of Pydraul AC or similar fluids. 23 A. When was the upper 1imit ? 24 Q. (By Mr. Baker) I believe you said after 25 19 7 0 Papageorge would have been responsible ? 105 WATER PCB-SD0000047 1 A. Yes, before '70 -2 Q. I picked 1956 as an arbitrary date, but 3 from the mid-'50's through 19 7 0 . A. I think it was sort of like responsibility 5 by committee. I would say the people who were in 6 charge were the research, development and marketing 7 group and manufacturing group of the Organic 8 Division. I don't know if they reported to a 9 product director, if that was the term they used at 10 that time. 11 They broke their products down into 12 several main groups. The product director of the 13 Functional Fluids Group was a fella who was 14 ultimately responsible but he used all those 15 ancillary people to help him. 16 Q. Is it a fair statement that your concern 17 during this period was primarily toward toxicity in 18 persons and not toward potential environmental 19 damage ? 20 A. Yes, sir, we had no idea that there was an 2 1 environmental problem until the late ' 60 ' s. 22 Q. I mean your personal responsibility in your 23 position with Monsanto. 24 A. No, that isn't true, because Elmer Wheeler 25 was almost a point man before -- he was a member of 106 WATER PCB-SD0000047: 1 our department before Papageorge was selected. In 2 fact, he was doing so much work on it that I said to 3 the Organic Division, "Look, I'll either send you 4 him and you keep him full time or get a full time 5 man yourself." 6 Q. So responsibility for environmental matters 7 was within your department before 1970? 8 A. No, it was still in the Manufacturing 9 Group, the people who made it, but they used us as a 10 staffed department, quite frequently, for our input 11 and for our knowledge of government people, 12 government agencies. In fact, sometime quite a ways 13 back the Executive Committee made a statement saying 14 that the Medical Department would review all new 15 plants, the flow sheets of new plants, to decide 16 whether or not the disposal was in accord with the 17 state of the art and any state regulations that may 18 occur, that maybe in existence at that time, so the 19 Medical Department did have considerable input into 20 the environmental aspects. 2 1 Q. And that was Monsanto plants that you 22 reviewed; is that correct? 23 A Yes. 24 Q. Did the Medical Department play any role in 25 advising customers or causing Monsanto to advise 107 WATER PCB-SD0000047; 1 customers concerning disposal of any products? 2 A. We may not have advised them, but I'm 3 thinking of insecticides. When you said "any 4 product," insecticides, which are toxic things, we 5 advise the Manufacturing Group, the Agricultural 6 Chemical Division, what the dangers were of having a 7 drum with a little bit of Parathion in it. So we 8 advised them on that, but the actual carrying out of 9 the instructions to the customer were carried out by 10 the Manufacturing Group. 11 Q. Did you advise the Manufacturing Group that 12 they should inform customers of this risk with 13 regard to pesticides ? 14 A Yes* 15 Q. If you had known at the time this brochure 16 was printed, whenever that was -- we haven't 17 identified the date, but we are certain it was 18 before 1970. If you had known before this brochure 19 was printed that PCB's were accumulating in the 20 environment and that there was the environmental 2 1 problem that you have testified to previously, would 22 you have advised Monsanto to include instructions as 23 to disposal in this brochure? 24 MR. CHAMBERSs Obj ection, objection, just 25 to the extent it calls for speculation, assumes 108 WATER PCB-SD00000472 1 facts that aren't in evidence yet. 2 But go ahead and answer, if you can, 3 Dr. Kelly. 4 A. Two parts to that question. We certainly 5 knew they were accumulating in the environment but 6 we didn't think they were causing any harm because, after all, they were being discarded by people, they 8 were going into landfills, they were going into 9 large bodies of water, and we assumed, it was our 10 belief, that it was inert, insoluble in water, would 11 not leach out of a landfill and stayed like a piece 12 of gravel or a lump of coal, so that's one half of 13 14 We saw no reason to warn our customers 15 about that because we didn't think they were causing 16 any environmental problem. If we had known that 17 there was an environmental problem, we certainly 18 would have put it in, yes. 19 Q. (By Mr. Baker) Would you, in your position 20 with the Medical Department, have advised Monsanto 21 to put it in if you had known there was an 22 environmental problem? 23 A Yes. 24 Q. That would have been part of your job? 2 5 A Yes. 109 WATER PCB-SD00000472 1 Q. Do you know how Monsanto disposed of PCB 2 products in its possession that it wished to dispose 3 of in the 1950 ' s and 1960 ' s? 4 A. No, I do not know that. We had Elmer 5 Wheeler and Jack Garrett, two people who were in our 6 department that knew that. I can't quote you the gospel and verse of it but I know that they were 8 either disposed of in landfills or by dilution or 9 approved methods. Some of the states may have had 10 regulations, I don't know. That's a long way of 11 getting around to say I don't know definitely. 12 Q. Do you recall ever being consulted as to 13 how Monsanto itself should dispose of PCB products ? 14 A. I think they would have gone to Garrett or 15 Wheeler. I, myself, was not asked. 16 Q. Before we leave this particular exhibit, 17 toward the bottom of page 1458 is a reference to air 18 masks, air line masks. 19 Did you not believe in the 1950 's and 20 '6 0's that there was a risk of liver damage from 2 1 breathing PCB products ? 22 A. Well, sure, we said. Do not breathe the 23 vapors. 2 4 Q. Did you know or suspect that PCB vapors 25 were being contained in air, in the compressed air, 110 WATER PCB-SD0000047: 1 that would be used in this airline mask? 2 A. Well, there was a possibility. I mean 3 suppose there's a leak someplace in there, but 4 that's why we suggested that a filter be put in. 5 Q. Was there in the 19 5 0 's and 19 6 0 ' s a 6 commercial filter cartridge that would filter all 7 the PCB vapors out of the air? 8 A. I don't know. I'm sure if this was written 9 in the ' 5 0 ' s , that we recommended it, if there was 10 one. I don't know when this was written and I don't 11 know when. As far as back as I remember, air lines 12 going to an air line mask from a compressed air 13 source had a filter in. 14 Q. And do you have any knowledge as to whether 15 these filters could filter PCB products out of the 16 air? 17 A. I'm sure they did because we wouldn't have 18 recommended it. 19 Q. But you don't know? 20 A. No, I don't know. 21 Q. I want to show you a document that has been 22 marked as Plaintiff's Exhibit 17. It's an unsigned 23 copy but appears to be a letter from you dated July 24 9, 1957, and ask you to review this, please. 25 A. Yes, sir, I wrote this. Ill WATER PCB-SD0000047: 1 Q. Was this a common inquiry that customers 2 raised? 3 A. Is it -- see, "common" is a quantitative 4 term and I really don't know if it was five 5 customers or ten or two, I just don't know. 6 Obviously, there must have been this one, certainly, whoever Singleton was, if he was a Monsanto person. 8 I don't know who the heading of this -- they are 9 quoting my letter but they aren't quoting whom -- I 10 wrote it, so I don't recall a big bunch of them. I 11 mean maybe three, four at the most. 12 Q. I'll refer you to the first paragraph of 13 this, says, "As Pydraul AC gains greater use in the 14 compressor field, more questions are being raised. 15 One of these which has shown up with relative 16 frequency concerns Pydraul AC's use in air systems 17 supplying air breathing masks." 18 Does that refresh your recollection? 19 A. No, I didn't write that part. See, this is 20 Plummer, that's his -- that first paragraph was his. 21 Q. And the enclosed letter from you? 22 A. Huh? 23 Q. And then the indented letter was your 24 writing; is that correct? 25 A. Well, it starts with "Mr. Singleton." The 112 WATER PCB-SD0000047; 1 quotes are my letter, so I don't know where Plummer 2 got -- what he meant by "relative frequency," I 3 don't know. 4 Q. But your advice was, if I may summarize it, 5 that you didn't see any risk in using these air 6 masks where Pydraul was used in the air systems 7 spraying the air. 8 MR. CHAMBERS: I'll object to the form. 9 I'd rather just stick with what he says as opposed 10 to summarizing. 11 Q. (By Mr. Baker) Did you mention anywhere in 12 this letter using filters to filter out PCB' s ? 13 A. Well, I said, "I would imagine also that a 14 further safeguard would exist in the traps that 15 probably are installed in conjunction with air going 16 to an air mask.M 17 Q. You meant the trap there to be a filter? 18 A. Yes, I said compressed, a way of saying 19 lines, but I'm saying cannisters with filters in 20 there. 21 Q. Did you refer at all in this letter to 22 possible liver damage? 23 A. No, because I said there wasn't any hazard. 24 Q. But you referred to a low acute oral 25 toxicity? 113 WATER PCB-SD0000047: 1 A. Yes. 2 Q. But you didn't mention any other potential 3 damage, did you? 4 A. No, because I said -- I'm implying that if 5 there is a break in there, if something happens, 6 even if it happens, this is a relatively low order of acute toxicity, the amount that is picked up -- I 8 mean at normal ambient temperatures. So no, I 9 didn't. And I believe I was right then. I believe 10 I'm right now, because we haven't had any case 11 reports any time from '57 to '92 of people being 12 injured by Pydraul in an air compressor. 13 Q. I want to show you a document labeled 14 Plaintif f ' s Exhibit 28, and this, again, is an 15 unsigned copy but I'm convinced it's a letter that 16 you sent to Kentucky Hydrocarbon, my client? 17 A. Yes, sir. 18 Q. Review this, please. 19 A. Beg your pardon? 20 Q. Have you reviewed this document? 21 A. This is the same letter that's quoted in 22 the previous exhibit. 23 Q. This one is addressed to Kentucky 24 Hydrocarbon and doesn't contain the statements from 25 Mr. Plummer there. It has a copy of your -- has 114 WATER PCB-SD0000047; 1 your letter typed in it. 2 A. Yes, this was written six weeks before 3 Plummer sent mine to somebody else. 4 Q. Do you recall anything about this inquiry 5 from Kentucky Hydrocarbon? 6 A. Do I do what? Q. Do you recall anything about this inquiry 8 from Kentucky Hydrocarbon, and your response? 9 A. No, sir, but let me tell you that Monsanto 10 had a policy that if any customer asked a sales 11 representative about toxicity of a product, that was 12 referred to me. If anybody called up Monsanto and 13 said, I want to inquire about the toxicity or safe 14 handling of a product, that was referred to the 15 Medical Department. So, obviously, that Singleton 16 must have been in the Marketing Department, got this 17 inquiry from Roberts and talked to me about it, so I 18 answered Mr. Roberts. 19 Q. And, again, this letter did not mention any 20 potential liver damage? 21 A. No, sir, because I said there was no 22 hazard. If you got no hazard, you don't get any 23 1iver trouble. 24 Q. And is it your testimony then that you did 25 not intend for this letter to indicate that PCB's 115 WATER PCB-SD0000047: 1 don't cause damage but, rather, intended it to 2 indicate that you did not expect a leakage of PCB's 3 from the use of Pydraul AC? 4 A. Say that again? 5 Q. Do I understand then that your meaning in 6 this letter was not that PCB's don't cause damage, but that you didn't expect any exposure to PCB's 8 from the use of Pydraul AC? 9 A. Well, yes, by -- well/ I would phrase it a 10 little differently. Mr. Roberts obviously said/ "What's the possible hazard of using Pydraul AC in 12 a compressor which will furnish compressed air for, 13 among other things, an air mask?" And I wrote 14 back. After explaining my reasons, I said, "I'm 15 sure there is no hazard involved." 16 I didn't have to talk about any 17 potential toxicity of PCB, I just said there was no 18 hazard involved in this operation. 19 Q. Do you recall personally any oral or 20 written contact with Kentucky Hydrocarbon? 2 1 A. No/ sir/ I didn't recall that until 22 somebody showed me that memorandum. 23 Q. And other than that, you don't recall any 24 communications to or from Kentucky Hydrocarbon? 25 A. No, sir. There may but I don't recall it. 116 WATER PCB-SD0000047: 1 Q. Do you recall any communications to or from 2 Equitable Resources? 3 A. I didn't remember the name before last 4 week. 5 Q. Let me ask you another question. I expect 6 the same answer. How about Equitable Gas Company? 7 A. No, sir, I do not remember any contact. 8 Q. I'm going to show you a document that' s 9 marked as Plaintiff's Exhibit 20 and ask you first 10 to take a moment and review this. 11 A. Yes. 12 Q. Have you previously seen this document? 13 A. Yes, sir. 14 Q. Were you involved in drafting this 15 document? 16 A. I don't recall that. This was a member of 17 our department, may have been, but it looks like 18 this was -- this occurred after Papageorge came on 19 board and I would imagine Papageorge was the number 20 one person responsible for sending this out. I 2 1 don't recall whether -- Q. My question wasn't who was the number one 23 person responsible, but whether you had played any 24 role in the drafting of the document. 25 MR. CHAMBERS: Just for clarification, you 117 WATER PCB-SD0000047: 1 mean Dr. Kelly personally I take it as opposed to 2 his department? 3 MR. BAKER: No, sir, I'm going to - 4 A. No, sir, I do not recall being personally 5 involved. 6 Q. (By Mr. Baker) Do you know whether anyone 7 in your department was involved in the drafting of 8 this document? 9 A. I don't recollect that. If it were anyone, 10 it would be Elmer Wheeler. 11 Q. Do you recall an ad hoc committee that was 12 formed in late '69 or sometime I believe in 19 6 9 -- 13 A. Yes, sir. 14 Q. -- concerning the PCB situation? 15 A. Yes, sir. 16 Q. Did your department have a representative 17 on that committee? 18 A. Yes, Wheeler was on that committee. 19 Q. Were you personally involved in drafting 20 any of the letters that followed the warning letters 21 or the letters containing information on PCB' s that 22 followed this February 9 , 197 0 , letter? 23 A. Are they here? 24 Q. We'll be getting to those. 25 A. I mean I can't say I'm involved unless I 118 WATER PCB-SD0000047: 1 see the letters. 2 Q. I was going to ask you first if you 3 recalled a series of letters that followed this 4 February 9, 1970, letter. 5 A. Well, I know there were some but I don't 6 know what they were or what the time frame was. 7 Q. Do you recall being involved in the 8 drafting of any of those letters? 9 A. I may have had some input if there were 10 toxicological statements in there, but without 11 seeing the letters, I can't tell you. 12 Q. But if you just said you knew you weren't, 13 I wouldn't have to go through this further, but I'll 14 go through each of them and we'11 see. 15 A. I didn't follow the asides. 16 Q. That's fine. 17 MR. CHAMBERS: I think the point is, if you 18 don't know, if you'11 say you don't know, that may 19 help everybody determine exactly where to go. 20 MR. BAKER: If you were certain that you 2 1 weren't involved in the drafting of those letters, 22 we would skip that and go on to the next topic, but 23 if you like, it's probably safer just to go through 24 each one of them. 25 MR. CHAMBERS: It may be. 119 WATER PCB-SD00000472 1 Q. (By Mr. Baker) I'll show you what's marked 2 Plaintif f ' s Exhibit 21. 3 A. No, sir, I have no recollection of being 4 involved in this at all, in that letter, Plaintiff's 5 Exhibit 000021. 6 Q. I'll ask you the same question for 7 Plaintiff's Exhibit 22. 8 A. No, sir, I have no recollection of being 9 involved in Plaintiff's Exhibit 000022. 10 Q. I'll ask you the same question with regard 11 to Plaintiff's Exhibit 23. 12 A. No, sir, I have no recollection of being 13 involved at all with Plaintiff's Exhibit 0 0 0 0 2 3 . 14 Q. Same question with regard to Plaintif f ' s 15 Exhibit 24 . 16 A. Same answer. 17 Q. We're getting a system here I believe. 18 Same question with regard to Plaintiff's Exhibit 19 2 5 . 20 A. No, sir, I have no recollection of being 21 involved with Plaintif f ' s Exhibit 0 0 0 0 2 5 . 22 Q. And, finally, the same question with regard 23 to Plaintiff ' s Exhibit 2 6 . 24 A. I have no recollection of being involved in 2 5 the formulation of the letter of August the 3rd 120 WATER PCB-SD0000047 1 19 7 3, Plaintiff ' s Exhibit 000026 . 2 Q. Now, to perhaps close up one area of 3 questioning, I'll show you the document marked 4 Plaintiff ' s Exhibit 2 7. Previously we just looked 5 at Plaintiff's Exhibit 28, which was your letter to 6 Mr. Roberts at Kentucky Hydrocarbon, and I believe 7 that Plaintiff's Exhibit 27 may have been a writing 8 on a Monsanto form that would have caused you to 9 write that letter, but if you will just review this, 10 please, and tell us. 11 A. What is the question? 12 Q. Maybe I should ask you a question, first. 13 Have you seen this document before? 14 A. Yes, but I don't know when. 15 Q. Is this an internal Monsanto form? 16 A. Yes. 17 Q. And I can't read the top of it. I think it 18 says something, call report? 19 A. Salesman's call report. 20 Q. There's some handwritten language about the 21 middle of this page. Says, "Dr. Kelly, will you 22 please write letter as requested with copy to 23 Atlanta? Thank you." And I think it says H-A-L. 24 Is HAL Mr. Love j oy? 25 A. Gosh, I don't -- I don't know who he is, or 121 WATER PCB-SD0000047: 1 was . 2 Q. You know what the "copy to Atlanta" means ? 3 A. Must have been -- yes, down at the bottom 4 it s ays "District Off ice, Atlanta. Salesman, 5 Singleton-" 6 Q. Do you know who the salesman, Mr. Singleton, was ? Do you know anything at all 8 about him? 9 A. Outside of the fact he was a salesman out 10 of the Atlanta office, I don't remember anything about him. 12 Q. Okay. This morning we brie fly touched on 13 the subject of the use of PCB's in adhesives. I'll 14 show you a document marked Plaintiff's Exhibit 70. 15 MR. CHAMBERS: Objection to the relevancy, 16 same as we raised earlier. 17 Q. (By Mr. Baker) I'll ask you to take just a 18 moment to review this. 19 A. I'll start off on the first page, sir. 20 We're not talking about PCB's here. This is a 2 1 chlorinated terpheny1. 22 Q. I'm sorry, let me rephrase the question 23 then. 24 Is this your signature on the second 25 page? Do you recall seeing this document? 122 WATER PCB-SD0000047 1 A Yes, I have. 2 Q. Were you responsible for preparing or 3 supervising the preparation of this ? 4 A. Well, I was certainly responsible for 5 reviewing it before I signed it. My department did 6 not go through the mechanics of getting this petition in shape. 8 Q. Is this an application to the FDA for 9 approval to use terphenyIs in adhesives? 10 A. Yes , sir. 11 Q. In what manner were you proposing to use 12 these terphenyls ? 13 A. Outside of there was going to be an 14 ingredient in the adhesive, I don't know anything 15 more about it. 16 Q. Do you know what types of adhesives? 17 A. Yes, for vinyl acetate and ethylene/vinyl 18 acetate, ethylene acetate and poly vinyl acetate. 19 Q. In what manner were you proposing to use 20 these adhesive s ? 2 1 A. I don't want to be facetious but I think 22 they put up both sides of the film stuck together, 2 3 but I don't know. 24 Q. Let me ask a simpler question then, if I 25 can. Do you p1an to use this in pac kaging of foods ? 123 WATER PCB-SD00000472 1 A. Yes, sir. 2 Q. That's what I was trying to get at. What 3 are the similarities and differences between PCB's 4 and PCT's? 5 A. Well, similarities, they are both 6 hydrocarbons, they both possess a certain amount of 7 toxicity, not remarkable for an industrial 8 chemical. 9 The dissimilarities are that these are 10 much more viscous. Some of the terpheny1s may even 11 be solid resins, the others may be tar-1ike 12 compounds. They are dissimilar because they have 13 different uses. They are not used in electrical 14 applications. The tonnage or the amount of pounds 15 we manufactured were much more for PCB's than for 16 polychlorinated terphenyIs. 17 Q. I know you aren't a chemist but you're 18 probably closer to one than I am. Chemically, how 19 are they related, PCB's and PCT's? 20 A. Well, one is two benzene radicals, the 2 1 other one is three, and they are both chlorinated. 22 Q. When did Monsanto first begin producing 23 PCT's to your knowledge? 24 A. I don't recal1. 2 5 Q. Would it have been long before 1966 or were 124 WATER PCB-SD00000472 1 they relatively new in 1966? 2 A. I don't recall that either. 3 Q. Were you involved in any way in testing of 4 PCT's for potential human health and safety 5 problems? 6 A. With exception of the acute toxicity 7 package that I explained that we did on our 8 industrial chemicals, I do not -- at some time -- we 9 did not do any up to 1966, but at some time I think 10 subsequently, while this particular application was 11 on file at the FDA, we may have done some work on 12 it. I have some recollection of that and I'm sure 13 if you show me another one of these that are a later 14 one, that I'll be able to talk about it. 15 MR. CHAMBERS: For purposes of the record, 16 I just want to restate an ongoing ob j ection to al1 17 the questions on PCT's. 18 MR. BAKER: I will, for purposes of the 19 record also, in case this is raised before a judge, 20 we are asking a few questions about PCT's primarily 2 1 because in our last deposition Mr. Papageorge gave 22 us information that may indicate we may have bought 2 3 PCT's from Monsanto without knowing it and we're 24 investigating that. Now, so as long as we have 25 Dr. Kelly here I want to ask him a few questions 125 WATER PCB-SD0000047: 1 about PCT's in case you instruct h im not to answer. 2 MR. CHAMBERS: No, I have no probi em with 3 him an swering, I just want to make sure our record 4 is clear on our ob j ec tion. 5 A. Let me say, even on this we did a subacute 6 dermal toxicity of terpheny 9 Was the re oa. question? 8 Q. (By Mr 9 seemed toi be re I was wait ing . there> You 10 A. Yes, s 11 Q Okay, 12 prior to the fi y our r eco 1-- 1- ^3 c tion, et ition in 19 6 6 what 13 kinds of studie 14 r you per s ona 1 ly or o determin e p otential 15 safety and health problems witthh PCT'ss? 16 A. Well, in March of 63 we ran s ub acute 17 dermal toxicity on the mate al of a 6 0 pe r cent 18 terpheny1 and we did our ba c toxicity t e sting 19 showing that the oral LD^g for rats was around 20 20 grams per kilogram, which is quite innocuous from an 21 oral point of view. We did skin sensitization to 22 see if it was a skin sensitizer. This was 23 incorporated in an -- that's what we did on them. 24 Q. Do you recall between 1966 and 1970 doing 25 any additional testing on PCT' s? 126 WATER PCB-SD0000047; 1 A. Well, I don't know if this is the first one 2 or the second one. They bounced that first report. 3 We may have done some, I don't know, I don't recall, 4 but if it' s there, it's in that general file. 5 Q. I don't have another such petition. Let me 6 show you a couple of other letters that may help you 7 decide whether this was the first or second. 8 But first, I'll show you what has been 9 marked as Plaintiff's Exhibit 98, December 1st 196 6 10 letter which came about 12 days after the date of 11 this petition, and ask you if you can quickly review 12 that and identify it for the record, and then tell 13 us whether that helps you in any way to determine 14 which petition this was. 15 A. Well, this refers to Plaintiff's Exhibit 16 000070 in which the food and drug requested further 17 -- that they had reservations concerning the use of 18 this material, would be happy to discuss the 19 material in detail and see if there was any other 20 data that they might ask us about -21 Q. And that is a letter to you from someone at 22 Food & Drug Administration? 23 A. Yes. 24 Q. I'll show what you appears to be a 25 follow-up letter from you back to Mr. Randolph at 127 WATER PCB- the Food & Drug Administration. That is marked as 2 Plaintif f ' s Exhibit 9 9. I'll ask you to review it 3 and please identify it. 4 A. Wellt yes, this is a letter that we sent to 5 him and saying we're withdrawing this petition. 6 Q. Now, does that help you determine in any way whether this was your first or second petition? 8 A. I think it was the first. I'm not certain, 9 but my impression is that it was the first. 10 Q. Now, let me go back to what I was asking 11 before. Do you recall between the time this 12 petition was submitted in approximately October of 13 1966 and 1970 any additional testing that you or 14 anyone else at Monsanto did with regard to PCT's? 15 A. I don't recall, but we may have. I have 1 6 some sort of a recollection of seeing some 17 additional information in a subsequent petition but 18 I do not know the details. 19 Q. Other than testing that would have been 20 done with regard to this petition for use in 2 1 adhesives, do you recall any other testing done on 22 PCT's between 1966 and 1970? 23 A. No, sir, I do not recall. 24 Q. Now, from the end of 1966 through 1970 was 25 the period that Monsanto was investigating this 128 WATER PCB- 1 Jensen report from Sweden and some of the other 2 indications that PCB's were causing an environmental 3 problem; is that correct? 4 Aa f sirVa ac9 e 5 Q. Were you not also during th at period 6 attempting to deve1op replacement Pr oduc t s for products such as Pydraul AC that had contained 8 and that you were not attempting 1to develop 9 replacements products that did not contain PCB's? 10 A. I can't answer that. I was not involved 11 with any replacement products. 12 Q. Was the Medical Department involved in any 13 way in testing for potential environmental harm or 14 potential health and safety risk of any replacements 15 products for Pydraul? 16 A. We were not -- that's two questions. We 17 were not involved in the environmental aspects of 18 any replacement products. We were involved in the 19 acute testing of possible replacement products. It 20 may very we11 be that some of the replacement 2 1 products had extensive toxicological information in 22 existence.already. I'm not sure which replacement 23 products they were talking about, but some of the 24 phosphate ester had considerable toxicological 2 5 information. 129 WATER PCB- 1 Q. Let's talk about two particular replacement 2 products then. I will tell you that to the best of 3 my recollection Mr. Papageorge testified that 4 Pydrau1 AC was manufactured until sometime in 1970. 5 A. Was manufactured what? 6 Q. Pydrau1 AC, unti1 sometime in 19 7 0 , and for a period of about a year, and it may have been 18 8 months of a relatively brief period of 1970 into 9 1971 that a product called Pydraul AC A was 10 manufactured as a replacement for Pydraul AC and 11 that that product contained PCT's rather than 12 PCB's. 13 Then subsequent to 1971 or maybe 14 beginning in 19 71 a newer product with phosphate 15 esters in it called Pydraul 90 E was produced and 16 marketed as a replacement for the Pydraul AC and 17 Pydraul AC A, and that Pydraul 90 E contained 18 neither PCB's or PCT's. 19 Now, assuming that's true, were you 20 involved or was your department involved in any way in the testing of Pydraul AC A or in the testing of 22 Pydraul 90 E? 23 A. Let's take one at a time. 24 Q. Certainly. 25 A. Pydraul AC A, we did acute testing on it. 130 WATER PCB-SD0000047; 1 It was also my recollection that the material was 2 not PC -- that terpheny1s were not found in the 3 environment. I have no recollection of the data on 4 that but it's my general impression that they were 5 not found in the environment, so we only did acute 6 testing on it. 7 Pydraul 90 E, I don't know what that 8 was. I got a bulletin on 9 0 E and I'll tell you 9 what they did on it, if anything. I don't know what 10 it is . 11 Q. I don't believe we have a bulletin on it. 12 I can tell you about all I know about is just what 13 came from Mr. Papageorge, which was that he 14 testified it was a replacement for AC A, contained 15 phosphate esters, did not contain PCT's or PCB's, 16 and it was marketed first about sometime in 1971. 17 And if that can't enhance your recollection, there ' s 1 8 nothing I can do to help you today. 19 A. That may be a me-too product that was 20 manufactured by other people for years and we just 21 started using it as a replacement. I don't know 22 anything more about it. In fact, I don't know if it 23 was a me-too product, "me-too" meaning it was 24 somebody else' s product and we decided to make it 25 also. 131 WATER PCB-SD0000047: 1 Q. You did testify I believe that you had, 2 "you, " I mean collectively, your department, had 3 done some testing of phosphate esters. 4 A Yes, s x r 5 Q. When did that begin? 6 A. Beg your pardon? Q. Approximately when did that begin? 8 A. I don ' t remember. We tested s ome for 9 plasticizer and I don't know how long ago that was. 10 Q. Do you remember ever testing phosphate 11 esters for use in lubricants ? 12 A. No, sir, because I'd have to know which 13 phosphate ester we're talking about. There may be 14 toxicological information that was developed for 15 other uses of it. I don't know which phosphate 16 ester we're talking about. 17 Q > I can't help you any more with that now. 18 We may have to come back at some point, but I'll try 19 to avoid that if possible. 20 A. I'm available. 2 1 Q. I understand. On the subject of PCT's, you 2 2 stated that as you recalled, there were not any 23 PCT's found in the environment. 24 A. That is my impression. 25 Q. Is that your impres sion in the 19 6 0 ' s or 132 WATER PCB-SD00000472 1 early '70's or is that your impression as of today? 2 A. Well, it was my impression sometime between 3 the 6 0's and today, but I don't know when I gathered 4 that impression. 5 Q. Do you know why Monsanto ceased producing 6 Pydraul with PCT'a in it? A. No, sir, I don't. 8 Q. Do you know what kind of information that 9 Monsanto had concerning potential health and safety 10 issues with regard to PCT's or environmental damage 11 with PCT's? 12 MR. CHAMBERS: Let me object to the form. 13 May be easier to just take them one at a time. 14 A. I'll take the health one. Monsanto had 15 negative information that there were no reports of 16 any illnesses in the workers or users of PCT, but I 17 do not know how large a market that was. We 18 certainly didn't have any in our own workers. We 19 had the basic toxicological acute data on it, on the 20 material, we had that data. As far as the 2 1 environmental aspects, I don't know anything about 22 it. . 23 Q. (By Mr. Baker) Does Monsanto produce PCT ' s 24 at all today? 25 A. I don't know. I've been gone 18 years. I 133 WATER PCB-SD0000047: 1 didn't even know they were producing it in 1974 when 2 I left. 3 MR. BAKER: Probably some of these 4 questions should wait until Thursday. 5 MR. CHAMBERS: That's probably true. 6 MR. BAKER: I don't mean to put you on the 7 spot. It's a new area that's just come up we didn't 8 realize was an issue until just recently. 9 THE WITNESS% I've never heard about PCT's. 10 Q. (By Mr. Baker) On the question of the 9 0 E 11 and the phosphate ester, from Mr. Papageorge's 12 deposition, and I'm not sure I can pronounce this 13 correctly, but he said he thought the ingredient was 14 a phosphate, tricresyl phosphate. Does that in any 15 way assist you? 16 A. Could be, yes, sir, it could be. Tricresyl 17 phosphate has a subtoxicity of its own. It's been 18 used as a gasoline additive. It is certainly not 19 intended to be taken orally. That's about all I 20 could tell you. 21 Q. Do you recall, first, whether that would 22 have been a me-too kind of product? 2 3 A. It was an old time product, yes, it was an 24 old time product. 25 Q. Do you know whether Monsanto, under your 134 WATER PCB-SD00000472 direction, did any testing of this product? 2 A. I'm sure we did our basic acute toxicity 3 package, but as far as I recall, I do not recall any 4 further testing. 5 Q. In response to questions about several 6 different substances, you've talked about your basic 7 package of testing. Can you tell us -- and if you 8 answered this this morning, I apologize for as king 9 again, but can you tell us precisely what was 10 involved in that basic package of testing and how long it took on a product? 12 A. How long it took was about three days, 13 probably a week, before we got the report back. 11 14 involved in testing whether it was an eye irritant 15 or damage to the eye. We determined whether it 16 caused local action on the skin, whether it could be 17 absorbed through the skin and cause systemic 18 action. 19 We fed the material to develop LD^q, 20 which was the benchmark for oral toxicity, and if it 2 1 were a liquid we blew air through it to see what 22 vapors could be picked up by -- what breathing air 23 saturated with the material would cause to an animal 24 over an 8-hour period. 25 Q. And that took about three days of testing ? 135 WATER PCB-SD0000047; 1 A. Yeah. We observed the animals for some 2 time. 3 Q. Show you a document marked Plaintiff's 4 Exhibit 7 6 and ask you to review this and tell us if 5 you' ve seen it before. 6 MR. BEAL: Once again, that is the way that 7 we received the documents. That's how they were 8 attached. 9 MR. CHAMBERS: That's fine. 10 A. Yes, sir, I've seen it. 11 MR. CHAMBERS: I want to take a couple 12 minutes and look at the other pages too. 13 (A brief recess was taken.) 14 Q. (By Mr. Baker) Dr. Kelly, have you 15 reviewed all the documents that are stapled together 16 here labeled as Plaintiff's Exhibit No. 7 6? 17 A. Yes, I have. 18 Q. Let's start with the first page. Have you 19 seen this before? 20 A. Yes, sir. 2 1 Q. It has been represented to us as being a 22 page out of The New Scientist of December 1966. 23 Does that appear to you to be accurate? 24 A. What was the last statement? 25 Q. Does it appear to you that that is correct? 136 WATER PCB-SD00000472 1 A. The date is correct, yes, sir. I mean it's 2 written in there. I presume it is correct, I don't 3 know. I presume it is . 4 Q. When you first saw it was it an article in 5 The New Scientist? 6 A. No, sir, it must have been something like this . 8 MR. CHAMBERS: When he says "like this," 9 just let the record show he's referring to some of 10 the later pages in the exhibit. 11 THE WITNESS: To Exhibit No. 0076. 12 MR. CHAMBERS: Thank you. 13 Q. (By Mr. Baker) So you did not see it as a 14 page in The New Scientist: you saw it as a page that 15 had been copied from something for your review? 16 A. Yes, sir, and I don't know who wrote it, I 17 mean what the expertise of the man who wrote it was. 18 Q. If you'11 turn to the next page, appears to 19 be a letter from a Mr. Wood to a George, perhaps 20 nan? 2 1 A< Yes , sir. 22 Q From Brussels to St. Louis. Are you 23 with this document? 24 Well, not too familiar. I think I have 25 but, first, this has nothin g to do with, 137 WATER PCB-SD0000047; 1 first, this exhibit. I mean this letter was written 2 December the 1st and presumably The New Scientist 3 thing was December 15th. 4 Q. I don't want to argue with you because I 5 don't know if there's any connection at all. 6 Although I would note or ask you if you would agree 7 that often magazines are published well before the 8 date on the magazine ? I get Sports Illustrated 9 sometimes three or four weeks before it comes out, 10 but I don' t know that that one came before the other 11 or not. 12 But I'll just ask you, on this letter 13 dated December 1st 1966, you have seen that before, 14 have you not? 15 A. Yes, sir. 16 Q. Would it have been approximately the first 17 part of December 1966 when you first saw this? 18 A. Yes, sir. 19 Q. Prior to your seeing a copy of this letter 20 from Mr. Wood to Mr. Buchanan, had you had any 21 communications concerning the possible buildup of 22 PCB's in birds or other creatures? 23 A. No, sir, I do not believe so. 24 MR. CHAMBERS: Let me object to the form as 25 well, to the extent that I don't think any of this 138 WATER PCB-SD00000472 1 talks about buildup in birds, although it does talk 2 about PCB's showing up in birds in Sweden. 3 Q. (By Mr. Baker) But when you testified 4 earlier today that your first information concerning 5 the Jensen study in Sweden came from a communication 6 from someone in Brussels that was passed on to you, 7 is this what you were referring to? 8 A. I don't think so. I think there was a 9 newspaper article that I saw. I don't know when 10 those crossed my desk. 11 Q. I'll ask you then to turn to the third page 12 of this , which appears to be a three-page letter to 13 Mr. Wood from, I believe, Henry Strand, and I will 14 ask you, first, if you have previously seen this 15 document ? 16 A. I have seen it. I do not recall the first 17 time I've seen it. 18 Q. This appears to be a November 2 8 , 1966, 19 1etter and it refers to newspaper articles in 20 Sweden. Would these perhaps be the articles that 21 you have mentioned? 22 A. Well, this is something to do with the 23 confusion I mentioned because he's speaking about 24 polychlorinated bi-phenols, which is an entirely 25 different horse than polychlorinated biphenyls, so 139 WATER PCB-SD0000047: 1 whether that's a typographical error, whether the 2 Swedes -- something got lost or picked up in the 3 translation, I don't know, but there are some of the 4 statements in here that I don't know where he picked 5 these out of the air. They are said to be related 6 to DDT and equally poisonous. Well, I don't agree with that at all. 8 Q. I'm not asking you to agree with anything 9 in here. I'm asking if perhaps this was the notice 10 you referred to in your earlier testimony concerning 11 the Jensen study. 12 A. No, sir, because the first ones I saw were 13 newspaper articles that concerned just being in the 14 environment rather than in the human body, the hair, 15 or the bodies of fish, so this is a somewhat later 16 one that I've seen. 17 Q. So if you saw this in late 1966, then 18 sometime prior to this you would have had your first 19 notice? 20 A. Newspaper work, yes. 2 1 Q. Prior to this time you and the other people 22 at Monsanto knew that PCB' s did not readily 23 biodegrade; is that a fair statement? 24 A. Yes, sir. Which time are you saying? 25 Q. Prior to 1966. 140 WATER PCB-SD00000472 1 A. Yes, sir. 2 Q. How early did you know that? As early as 3 the 1930's? 4 A. I don't know. I don't -- I don't know how 5 you prove a negative. I mean, I don't think we went 6 around looking to see if there -- we found PCB's - well, I don't know, I just don't know how we found 8 that out. But it was our impression, due to the 9 1ack of solubility of water, the lack of response to 10 alkali treatment and the nonreactivity of the 11 product that we thought it would not biodegrade. 12 Q. And you also knew in the 19 3 0 's that 13 exposure to a certain level of PCB's caused liver 14 damage in humans, did you not? 15 A. Yes, sir. 16 Q. Did you consider at any - 17 A. May I repeat on that last statement? 18 Q. Certainly. 19 A. We knew that some -- we didn't know that 20 PCB's caused liver damage in humans in the 19 3 0 ' s. 2 1 We knew that chlorinated biphenyl benzene, when 22 associated with chlorinated naphthalene, caused 23 1iver damage in workers. There was no PCB's at this 24 particular time that we believed were even used in 2 5 conjunction with chlorinated naphthalenes. It was a 141 WATER PCB-SD00000472 1 chlorinated biphenyl benzene, so the answer to that 2 other one was no instead of yes. 3 Q. Let me rephrase it then. 4 At what point did you learn that 5 exposure to PGB's could cause liver damage in 6 humans? A. Well, I cannot put a first date on it. We 8 knew when we had a product that could cause liver 9 damage by inhalation in humans and animals that it 10 could cause, by inference, if exposure were 11 sufficient, liver damage in people. We knew that 12 from the acute point of view and the episodes that I 13 mentioned this morning that it did cause liver 14 damage in these two acute exposure cases. 15 Q. And that was __ 16 A Sometime in the ' 50's. 17 Q. Sometime in the ' 5 0's ? 18 A. Right. 19 Q. And I believe your testimony was that when 20 you were told that these workers in Indiana had been 2 1 exposed and that they had jaundice, then you weren't 2 2 surprised because you knew that the affected organ 23 would be the liver; is that correct? 24 A. Well, I knew -- I wasn't surprised because 25 I knew there was a possibility of getting enough 142 WATER PCB-SD0000047: 1 exposure from breathing hot materials in a confined 2 space. 3 Q. So if you didn't know by the 1930's that 4 exposure to PCB's could cause liver damage in 5 humans, at least by the 1950's you knew it had 6 happened in the case in Indiana and you weren't 7 surprised by it; is that a fair statement? 8 A. That's correct. 9 Q. Considering that by the 1950 ' s you knew 10 that there was a potential for causing liver damage 11 in humans and you believed that PCB' s did not easily 12 biodegrade, did you not at any point prior to 1966 13 consider doing any studies to determine whether 14 these PCB' s were out in the environment where they 15 could cause damage? 16 MR. CHAMBERS: Just object to the form, and 17 partly because 1 got lost in that question. We can 18 either read it back or if you want to rephrase it, 19 either one, I don't mind. 20 Q. (By Mr. Baker) Do you understand the 21 question? 22 A. Well, he's got two premises there and I'll 23 have to take them one at a time. These have nothing 24 to do with each other. 25 You talk about PCB's being out in the 143 WATER PCB-SD00000472 1 environment and the possibility that that would 2 cause harm or liver damage, and you are also tying 3 that in with acute episodes of inhaling the material 4 at elevated temperatures in high exposures. There ' s 5 no relevancy between those two types of situation. 6 Now what was the question? 7 Q. (By Mr. Baker) My question was: Did you 8 not at any point before 1966 consider the need to do 9 a study to determine whether there was potential 10 harm from having these PCB's in the environment? 11 MR. CHAMBERS: I'll object because he ' s 12 talked about studies that -- are you referring like 13 to the chronic type of feeding studies? Because 14 he's already testified about a number of studies 15 that were done on toxicity and PCB's. 16 Q. (By Mr. Baker) Do you understand the 17 question? 18 A. Frankly, no. 19 Q. Then I'll be happy to repeat. Your 20 testimony is, you've testified concerning toxicity 2 1 studies of PCB's. You testified that by the late 22 '60's you. had begun a two-year study and that you 23 did no chronic testing before that, and I believe 24 that's a fair summary; is it not? 2 g A. Yes, sir. 144 WATER PCB-SD0000047: 1 Q. And you testified in late '66 you 2 discovered or were told that PCB's were found in 3 birds? 4 A. . Yesr sir. 5 Q. And shortly thereafter you heard about 6 PCB's being found in babies' hair and in other things. 8 Didn't you consider at any point prior 9 to 1966 that you should do any kind of additional 10 testing to determine whether these PCB's were in the 11 environment in a situation where they could cause 12 damage? 13 A. We didn't really have the -- the answer is 14 no, we did not have the advantage of hindsight. We 15 could not foretell and did not even assume that 16 PCB's which we thought were nonreactive and would 17 not be broken down in either landfil1s or in bodies 18 of water would cause any harm, so there was no 19 necessity for doing any testing When we found out 20 that those conclusions were wrong and the material 21 was present in food that people were eating, were 22 1iable to eat, then we started our testing. 23 Q. Did you at any point before 1966 consider 24 the pos sibility that these materials could break 25 down and escape the pebbles on the beach? 145 WATER PCB-SD00000473 1 A. No, sir , we did not. 2 Q. Did you do any testing to determine under 3 what circumstances the PCB's would break down? 4 A. Not that I have a recollection of. We may 5 have but I did not know about it. I do not recall 6 it. 7 Q. I'm going to change the subject now. 8 A. To what? 9 Q. To Plaintiff's Exhibit 000088, and ask you 10 to look at this and tell me if you have seen this 11 before. 12 A. No, sir, I don't recollect having seen this 13 at any time. 14 Q. Who was Mr. Stark, do you know? 15 A. No, sir, I don't. 16 Q. And you've already identified Mr. Wheeler. 17 I assume this is the same Mr. Wheeler we talked 18 about earlier? 19 A. Yes, the same one. 20 Q. Do you know if there was -- 21 A. I'll tell you who I know. I know W. A. 22 Hunt. He was a toxicologist in the Medical 23 Department. George Levinskas was also a 24 toxicologist in the Medical Department. W. R. 25 Richard was the research man who was involved in the 146 WATER PCB-SD00000473 1 PCB situation. Scott Tucker, E. S. Tucker, was the 2 analytical expert in the same matter. 3 Q. This document is dated February 7, 1972, 4 and it says the subject is New Pydraul Blends, 5 Medical Approval. 6 To your knowledge, in 1972 was there a 7 standard process within Monsanto to obtain medical 8 approval for new products? 9 A. Yes, sir, there was. 10 Q. What was involved in that process? 11 A. We had what we called our 201 form, 12 EC-2 01. I forgot what the "EC" meant, but they said 13 what it was, what they knew about it, where it was 14 going to be used, any other manufacturers, and as 1 5 you see, these included all our Santicizers; 140, 16 141, 148 and 711. Of those, we had an awful lot of 17 information on them, so I would imagine that Wheeler 18 bucked this to Levinskas until he answered it. I 19 don't recall seeing it. 20 Q. What was the form you said? 2 1 A. He mentions it in the second paragraph, 22 EC-201. 23 Q. Now, was that a form that was required for 24 all new products? 25 A. Required. 147 WATER PCB-SD00000473 1 Q. For all new products by Monsanto? 2 A. Yes, sir, even in the development stage, 3 yes . 4 Q. When did Monsanto first start requiring the 5 EC-201 form? 6 A. I think sometime after Levinskas came he added new strength to our Toxicology Department and 8 my recollection is that it was sometime in '71, but 9 I'm not sure when. It wasn't long before this 10 memorandum was written, 12 months or so, because I 11 don't think Levinskas was there in 1970. He may 12 have been there in '71. 13 Q. Prior to Mr. Levinskas, prior to his 14 arrival, what kind of medical approval was required 15 for new products? 16 A. Well, it was a sort of -- it wasn't 17 formalized in a form but we had to give approval 18 before anything was advertised in a development 19 bulletin we had toxicity information on. If the 20 second sample was sent out to a customer, we would 21 have to have toxicity information on it. If there 22 were any reports of ill effects in any stages of 23 research or pilot plant operation, we would have to 24 have information on it. 25 You realize there are about 10,000 148 WATER PCB-SD0000047 1 products come off a bunch of chemists' benches and 2 only a few of them reach those states that I'm 3 talking about. 4 Q. Assuming that the accuracy of 5 Mr. Papageorge's statement concerning the timing of 6 Pydraul AC, AC A and 90 E said that 90 E was introduced sometime in '71 or '72 the best I can 8 recall, that AC A was a rather short-term substitute 9 for Pydraul AC, first introduced sometime in 1970, 10 and that Pydraul AC was introduced in the '5 0's; can 11 you tell us what kind of medical approval would have 12 been reguired by Monsanto prior to marketing the 13 product for Pydraul 90 E in '71 or '72, for 14 Pydraul AC A in 1970 and for Pydraul AC in the 15 mid-'5 0 ' s ? 16 A. Would you take these one at a time? 17 Q. I'd love to. 18 MR. CHAMBERS: Yeah, I think he's just 19 trying to help get it all out, but maybe if we break 20 this down it would go easier. 21 A. Let's take them one at a time. 22 Q. Would you like to start in the '50's or the 23 '70 ' s? 24 A. ' 50 ' s. 25 Q. Okay, Pydraul AC, I believe it was first 149 WATER PCB-SD0000047: 1 marketed in the mid ' 5 0 ' s . 2 A. The Medical Department would have to know 3 the use of a material and what was in it. We would 4 have to then decide whether we had enough 5 toxicological information to satisfy our warning 6 labels and satisfy our bulletins so that the people could use it without ill effect. Now, in that 8 compound in the ' 5 0 ' s we only needed our basic 9 toxicological package of eye, skin, inhalation and 10 oral dose. 11 Q. How did that change by 1970 when 12 Pydraul AC A apparently was first marketed? 13 A. I don't believe that we changed it in any 14 way by the time because -- no, the answer is no, we 15 didn't change it. 16 Q. Then in 1971 or '72 when Pydraul 90 E would 17 have first been marketed, how had it changed? 18 A. If we had 201, EC-201, in existence at that 19 time we would have that form from the people that 20 manufactured it. And, again, there was information 2 1 in the literature about the tricresy1 phosphates 2 2 that we had enough information on that from the 23 literature, we didn't have to run tests ourselves. 24 We probably did the basic package to be sure we're 2 5 in the same ballpark as the published literature. 150 WATER PCB-SD0000047: 1 Q. What kind of information would you have 2 required in 1971 or '72 that wasn't required earlier 3 prior to giving medical approval for a new product? 4 A. Well, that varied a great deal with the 5 product. I think we were paying a great deal more 6 attention in '71 or '72 to the biodegradability of products. I would say that would be the only maj or 8 change that we might have made. 9 Q. Okay, for a product first marketed in 1972, 10 what kind of information would you have assisted on 11 concerning the biodegradability? 12 A. Well, my only -- we wouldn't run the 13 biodegradability tests ourselves. We would have to 14 know how the material is going to be used, was it 15 going to be used up in the process or was there 16 going to be ef fluents there so it wasn't present in 17 the effluents? And we would want to know whether 18 that was broken down or not by the various areas it 19 went into, so I would say that degradation, 20 biodegradation testing, would be carried out by the 21 manufacturing group or the research group rather 22 than the Medical Department. We did not do that. 23 Q. But did you require or ask them to provide 24 you the information? 25 A. To the best of my knowledge, yes, but I 'm 15 1 WATER PCB-SD0000047c 1 not certain about that. I think we did. I'm not 2 certain. 3 Q. What information would you have been 4 interested in in 1972 concerning biodegradability? 5 A. Well, does it biodegrade? 6 Q. Okay, well, if it does, how does that 7 effect your medical approval? Don't you need to 8 know more information than just does it biodegrade? 9 A. Well, no. If it biodegrades you really 10 don't have that product any more, it may be broken 11 down to CO2 and water or some innocuous compound. 12 We would probably want to know what it biodegrades 13 to, if you have the analytical method to find out. 14 But, remember, the analytical 15 expertise was sort of a moving target in those 16 days. You went from looking at parts per million to 17 parts per billion and parts per trillion, and we did 18 not have the expertise of looking for parts per 19 billions and trillions in the ' 60 ' s and ' 70 ' s . I 20 don't know when that expertise was developed. 2 1 Q. Okay, and what if it does not biodegrade? 22 What does that tell you about whether you should 23 give your medical approval? 24 A. If it doesn't biodegrade and it's not 25 soluble in water and it does not react to other 152 WATER PCB-SD0000047: 1 chemicals such as alkalis and acids, you believe it 2 would be safe to be discarded in approved methods 3 which were in existence at that time in accord with 4 state and federal regulations. 5 Q. I'm going to give you a hypothetical and 6 wait for the objection. If we could wipe out a few 7 years of history and I came to you with a product 8 today and said this is PCB and it's wonderful, it 9 does all these things that need to be done, we want 10 to sell it f what would you ask me about the 11 biodegradability of that product before you decided 12 whether to give your medical approval? 13 THE WITNESS: I will interpose the 14 obj ection for the record. 15 Go ahead and answer, if you can, 16 Dr. Kelly. 17 A. I don't think -- I'd have to be assuming 18 something. I don't think I can answer a 19 hypothetical like that because I'd have to know a 20 lot of things. 2 1 What's the state of the art at present? .We're talking now about the state of 23 thinking of a populace at large in 1992 versus 1968 24 or '7 0 when we had -- so there are an awful 1ot of 25 conditions that make it honestly impossible for me 153 WATER PCB-SD0000047v 1 to answer that statement. 2 Q. (By Mr. Baker) If you had the benefit of 3 hindsight would you have stopped the production of 4 PCB's prior to 1966? 5 MR. CHAMBERS: Ob j ect to that question on 6 the same basis. A. No, we wouldn't have. We would have been 8 much more serious about cutting down the outflow of 9 the PCB residue into the environment. There were 10 some operations that you had to weigh the benefits 11 and the possible ill effects. After all, here we 12 have compounds that prevented enormous fires. The 13 PCB's and hydraulic fluids got their biggest impetus 14 when the GE plant, General Motors plant, burned with 15 $74 million damage and I don't know how many 16 fatalities because they did not have a 17 fire-resistant diecasting fluid. 18 We know that the electrical operations 19 could not continue in the United States. There was 20 no substitute for PCB's for a flame-retardant 2 1 transformer. We wouldn't have stopped it. 22 Q. (By Mr. Baker) If federal and state 23 governments allowed you to, would you recommend 24 resuming manuf acture of PCB ' s today? 25 MR. CHAMBERS: Ob j ect to that question as 154 WATER PCB-SD0000047: 1 well. 2 A. No, because we have substitutes now, they 3 are not quite as good. The transformers are bulky, 4 they are not quite as fire-resistant, but there are 5 substitutes. But we didn't have substitutes in the 6 ' 6 0 ' s , ' 7 0 7 s , '75, we did not have substitutes f or dielectrics that were flame-resistant. And when I 8 say "we," it doesn't mean Monsanto products. The 9 industry had substitutes. 10 Q. (By Mr. Baker) Let me ask you one more 11 hypothetical, and for my own personal information I 12 want to know the answer to this. 13 If you were given the authority to 14 decide whether to clean up areas where PCB's are 15 found now or just to leave them alone, would you 16 recommend or require the spending of the resource 17 necessary to clean them up or would you just leave 18 them alone or would you clean up in some 19 circumstances and not in others? How would you 20 decide that? 2 1 MR. CHAMBERS: I'd just obj ect and just 22 raise the point that the response to that question 23 may depend on what the circumstances are, but 24 sub j ect to that, Dr. Kelly can sure answer, if he' s 25 able. 155 WATER PCB-SD0000047: 1 A. I can't answer that because I don't know. 2 I don't believe the government can answer that 3 because they spent $300 million trying to clean up 4 Times Beach here and after about eight years they 5 said, Whoops, we really didn't need to do this at 6 all, so if these experts can't make their mind up, I sure can't. So I can't answer your question. And 8 they cleaned up what's not PCB's, by the way, at 9 Times Beach. 10 MR. BAKER: I expected you to jump on that 11 question. 12 MR. CHAMBERS: Well, but that's fine. I 13 mean I have no problem with your exploring further 14 if you feel the need to, but -- 15 Q. (By Mr. Baker) I assume you have little or 16 no personal knowledge concerning the situation at 17 the Kentucky Hydrocarbon Plant; is that a fair 18 assumption? 19 A. Not at all, no. 20 Q. I'll proceed. Show you a document that is 2 1 marked as Plaintiff's Exhibit 92. Appears to be a 22 letter from you in February 1968 to a 23 Mr. Blickenstaff. Ask you to look at this and see 24 if you can identify it. 25 A. Yes, sir. I can identify it, yes. 156 WATER PCB-SD0000047: 1 Q. What led you to write this letter? 2 A. Well, it appears he must have written me 3 asking for a technical bulletin and he wanted 4 samples of these materials, so I wrote back and 5 said, "Why are you interested?" 6 Q. Were Aroclors used at all then in insecticides, fungicides, et cetera? 8 A. Well, this is an involved story on that. I 9 do not know if they were in -- they were recommended 10 first by the Department of Agriculture. That came 11 out in one of the technical bulletins saying they are an extender of Lindane, an extender of -- I 13 don't know, DDT and something else. As far as we're 14 concerned, it did not appear to be a big item to us 15 and I don't know when these things came out. That 16 recommendation was something in 1966. I think there 17 was a slight small mention of this in one of our 18 application bulletins, but to the best of my 19 knowledge it was never widely used. That's about 20 all I know about it. 2 1 Q. There's a reference at the top of this page 22 to C. Paton is the way - 23 A. C. Paton. 24 Q. C. Paton. I assume that is Cumming Paton? 25 A. Cumming Paton. 157 WATER PCB-SD0000047: 1 Q. What was his relationship to this 2 particular issue? 3 A. Well, that issue would be the Aroclors. 4 I think he was in the Functional Fluids Department 5 or the PCB Department and the marketing, and I -- I 6 guess I said it to him, maybe Blickenstaff wrote to Paton. I mean I got -- I don't recall Blickenstaff 8 writing to me, I don't know. Bill Richards was the 9 research man. 10 Q. I'll show you a subsequent letter from you 11 to Mr. Blickenstaff. It's dated March 12th 1968. 12 MR. CHAMBERS: This is Plaintiff's Exhibit 13 93 . 14 Q. (By Mr. Baker) Plaintiff's Exhibit 9 3 . 15 Ask you if you can identify that. 16 A. Yes f sir. I wrote it, yes, a letter from 17 me to the Department of Agriculture. 18 Q. I don't have any further questions about 19 ^L 1n1 Qa wL 20 Then in 1970 apparently you sent a 2 1 letter to Mr. Blumenthal. This is marked as 22 Plaintiff's Exhibit 95. I'll ask you if you can 23 identify this document. 24 A. Yes, sir, I wrote this to Dr. Blumenthal of 2 5 the Food & Drug Administration. 158 WATER PCB-SD00000473 1 Q. What, to the best of your knowledge, caused 2 you to write this letter at this time? 3 A. Well, I don't know if in April 1970 we had 4 said we were going to go out of the business of -5 where they could get into the environment. I was a 6 good friend of Herb's and I thought I'd tell him 7 before he read it in the newspaper. 8 As far as the second paragraph was 9 concerned, well, that was just of interest. I said 10 we're trying to get substitutes but there's already 11 two users who have switched to substitutes from 12 other companies. I don't know what this business of 13 any widespread announcement of what -- I am not sure 14 what I was talking about at that time. 15 Q. That's what I was going to ask you about 16 next. In the second paragraph you refer to the two 17 large users switching to other companies. It 18 doesn't say other companies, but that was what you 19 meant; they switched to other companies, wasn't it? 20 A. Yes. 2 1 Q. Then you say, "Obviously, Herb, you can 22 recognize the competitive aspects of developing and 23 phasing into sales such type of substitutes, so at 24 present we're not making any widespread 25 announcement. On the other hand, if the publicity 159 WATER PCB-SD0000047 1 gets as red hot as it did in the case of DDT, we may 2 be forced to make such an announcement at any 3 time. " 4 A. Yest sir. 5 Q. Now, did that not indicate that you were 6 not making a public announcement about looking for 7 substitute products or ceasing the production of 8 PCS's? 9 A. No, I don't think so, because I think we 10 certainly were -- you got another two questions in 11 there. 12 Q. I have a habit of doing that. You have to 13 watch it. 14 A X w x 11 15 Q . I believe you. 1 6 A. What were those two questions ? 17 Q. I forgot. 18 MR. CHAMBERS: We can read it back if that 19 will help. 20 A. Well, I said to Herb we were going to make 2 1 an announcement, I thought. In essence, I will let 22 you know before you read it in the paper, so we 23 weren't going to make the announcement. 24 (The pending question was read by the 25 reporter as above recorded.) 160 WATER PCB-SD0000047- 1 A. Well, on that, we didn't have one, so I 2 believe that they -- I think the marketing people 3 felt there's no sense making an announcement saying 4 we're looking for one, for a substitute, we're 5 getting out of this. Hold your breath until we come 6 out with a substitute. I don't think that -- I 7 don't know what that announcement would do. 8 Q. (By Mr. Baker) Your concern was that you 9 didn't want your customers to switch over to some 10 other product? 11 A. Oh, no, that wasn't at all, because I was 12 telling him we're not going to manufacture for those 13 uses. How are they going to -- they've got to 14 switch, be no more stuff coming from us. 15 Q. But you didn't want -- well, it says what 16 it says, but you said you were not going to make a 17 widespread announcement. Can you tell us what 18 announcement you were not going to make? 19 A. To the best of my recollection we did not 20 want to make a statement saying we are looking for a 2 1 substitute for these products which we are going to 22 discontinue. I mean, that is the best of my 23 recollection on it. We were certainly announcing to 24 everybody we were getting out. I don't know what 25 time it was in relationship to April the 8th, but at 161 WATER PCB-SD0000047' 1 that particular time we were telling people we were 2 getting out of the plasticizer business, we were 3 getting out of the carbonless carbon paper business, 4 we were getting out of the paint business and any 5 number of open operations. We were certainly going 6 to make that and we weren't hiding that from anybody. 8 Q. But you did not want to make this 9 widespread announcement because you were afraid you 10 would lose customers; isn't that the whole gist of 11 this paragraph? 12 A. Which is the widespread announcement I just 13 said I was going to make. 14 Q. The ones you said you were not making. 15 Listen to this and see if you can give me some other 16 interpretation. 17 "Obviously, Herb, you can recognize 18 the competitive aspects of developing and phasing 19 into sales such type of substitutes, so at present 20 we are not making any widespread announcements. " 21 Now, that widespread announcement, 22 whatever it was, related to the competitive aspect s 23 in your previous phrase? 24 A. Sure, but we didn't have a substitute, so 25 we were going to make an announcement saying we're 162 WATER PCB-SD00000473 1 looking for a substitute when we don't have it? 2 Q. Okay now, in the next sentence then you 3 say, "On the other hand, if the publicity gets as 4 red hot as it did in the case of DDT, we may be 5 forced to make such announcement at any time." 6 Now, what announcement is that 7 referring to? 8 A. I don't know what I was saying back in 1970 9 about that. 10 Q. That's fair enough. 11 Show you a document marked Plaintiff ' s 12 Exhibit 96. This appears to be a July 19 7 0 letter 13 from you to a Mr. Cueto. 14 A. I never met him. I just know him as a name 15 on this. 16 Q. Can you first review this and identify it 17 for us? 18 A. Beg your pardon? 19 Q. Review this and please identify the letter 20 for us. 2 1 A. Yes, sir, this is a letter from me to a 22 gentleman.that is in the Safety Evaluation Staff 2 3 with the Department of Agriculture, Pesticides 24 Regulation Division, dated July 24th 1970. 25 Q. Do you know what caused you to send this 163 WATER PCB-SD0000047: 1 letter at this time? 2 A. Well, he must have written me a letter 3 because I start off saying, "In reply to your recent 4 letter concerning our recommendation that the use of 5 polychlorinated biphenyls in pesticide formulations 6 be discontinued." So he must have written a letter 7 saying, Why did you do this, to us, because the 8 Department of Agriculture were the people 9 responsible for fostering the use of it in pesticide 10 formulations. 11 Q. In the last paragraph you refer to 12 chloracne in workers or users and say there were two 13 reports in the last 15 years. 14 Are these cases you've discussed 15 already today or were they additional cases? 16 A. No, they are the ones -- we11, the only one 17 I discussed today was the one by Meigs, and I think 18 there was an European report that I saw. 19 Q. So you believe the second chloracne report 20 was from literature from Europe? 2 1 A. A capacitator factory in England. 22 Q. We don ' t have his letter, or I don't 23 believe we have it, and you don't certainly have it 24 in front of you. Can you give us a reason that 2 5 there is no mention of possible liver damage in 164 WATER PCB-SD0000047323 1 this? 2 A. Well, no. The reason we wanted this thing 3 discontinued is we didn't believe you ought to be 4 throwing the material out in the atmosphere, out in 5 the environment. And at that particular time 6 everybody was saying you don't want it out in the environment, and we agreed with them, so he wrote 8 these people and said, Look, stop beating the drum 9 for putting this thing out in the environment. 10 Q. Let me try to rephrase the question then. 11 Your last paragraph I believe was meant to assure 12 him that you didn't see any human toxicity problems? 13 A That's very true. 14 Q. And you refer to chloracne but you did not 15 refer to any of the instances of liver damage. 16 Do you now recall a reason for not 17 doing that? 18 A. Here we have two acute episodes involving 19 misuse of the product; that it's been used for 40 20 years in hundreds of millions of pounds that has 21 really no relationship to any toxicity that might 22 result from disbursing of this in the environment. 23 The whole problem with PCB' s in the 24 environment with the other agencies of the 25 government outside of the Department of Agriculture 165 WATER PCB-SD0000047C 1 was the effect on wildlife. They didn't like it in 2 the environment, we didn't like it in the 3 environment. The Department of Agriculture seemed 4 to take an opposite point of view. This is our 5 baby. We discovered the fact if you put this in 6 Lindane it will kill 4 0 percent more cockroaches 7 than without it, something like that, so I said 8 we're stopping it, and they asked me why and I told 9 them. 10 Q. My only question is, and it probably isn't 11 a very important one, but do you recall why you 12 mentioned chloracne? Because you've testified you 13 had only one report of chloracne, then you read 14 about another one in a journal, but you didn't 15 mention liver damage. 1 6 A. He may have mentioned chloracne in his 17 letter. 18 Q. I want to show you a document that appears 19 to be a March 1971 letter from you to a Mr. Derr. 20 It's marked as Plaintiff's Exhibit 9 7. And I'll ask 2 1 you to review this and please identify it for us. 22 A. Yes, sir. I read it. 23 Q. Did you prepare this letter? 24 A. Beg your pardon? 25 Q. Did you prepare this letter? 166 WATER PCB-SD0000047: 1 A. Yes, I did. 2 Q. And this was in response to a request from 3 Mr. Engstrom I believe? 4 A. Yesr sir. 5 Q. What was Aroclor 5460? 6 A. That's chlorinated biphenyl benzene. It is 7 not a PCB, it's a solid. 8 Q. I'm glad to hear that. I didn't realize 9 that was not a PCB, so I don't think I have anything 10 else to ask you about that one. 11 I've asked a number of questions today 12 about potential liver damage and why certain letters 13 may or may not have referred to it and all that. 14 One topic we haven't discussed at all yet is the 15 potential for causing cancer, and I have just a few 16 questions as we're trying to conclude today. 17 MR. CHAMBERS: Let me go ahead and 18 interpose an objection just for the record on a line 19 of questioning relating to this subject since this 20 isn't a personal injury case or there's no claim of 2 1 cancer involved, but subject to that, he's certainly 22 welcome to answer your questions. 23 Q. (By Mr. Baker) Let me try to start at the 24 end and work backwards here, Dr. Kelly. 25 Do you believe that exposure to PCB' s 167 WATER PCB-SD0000047' 1 can cause cancer in humans? 2 A. There's a possibility that 1260 might. 3 It's my belief that the other ones would not, and I 4 base that on 40 years of experience with workers who 5 have been exposed to PCB's, of reports of the 6 negative information in the literature, the negative 7 information from customers, and the fact that the 8 National Cancer Institute ran a two-year test on 9 1254 and stated it was not a carcinogenic agent in 10 rats . 11 Q. First, just from your experience in the 12 literature, why would you say that 1260 might and 13 you don't believe 1254 or any of the other lower 14 ones would? 15 A. Well, 1260 has caused cancer in rats 16 according to Dr. Kimbrel, who I quoted before as 17 saying that she had -- her statement was that PCB's 18 have caused no injury in workers, outside of 19 chloracne. 20 Kimbrel ran a bunch of rats with 21 1260. We also ran a bunch of rats for 1260. She 22 found what she claimed was a lot of cancers of the 23 liver in her rats. We didn't find any. We had a 24 meeting with Kimbrel and we said, "Look, here are 25 our slides. You give me your slides." So she took 168 WATER PCB-SD0000047 1 our slides. Our meeting occurred in late '74 or 2 sometime in '7 4 and all this exchange of slides took 3 place after I left. 4 But, anyway, we sent her slides up to 5 the Eppling Cancer Institute in Omaha, Nebraska, and 6 they came back and said, "We don't agree with the 7 government pathologist." I don't recall seeing any 8 letter from Kimbrel saying that she did or didn't 9 agree with our finding of no cancers in our rats 10 that we fed the same doses. 11 There also was some Japanese work that 12 said that 1260 was carcinogenic in rats, so I go 13 along with probably it is an animal carcinogen and, 14 thus, might be considered a possible human 15 carcinogen, but there's a big jump from an animal 16 carcinogen to a human carcinogen, especially when 17 you aren't feeding this stuff every day for a 18 lifetime to humans. 19 Q. If we were to assume that 1260 could be a 20 carcinogen and 1254 definitely was not, do you have 21 an explanation for why 1260 might cause cancer if 22 12 5 4 did not? 23 A. No, sir, I do not. 24 Q. Are you aware of any other persons, 25 Dr. Kimbrel or anyone else, who have suggested 169 WATER PCB-SD0000047v 1 theories for why that might be? 2 A. No, sir. 3 Q. In the 1950' s and 1960's did Monsanto 4 conduct any studies to determine whether PCB's might 5 be carcinogens? 6 A. No, sir, we did have a cancer -- not on animals. ' 50 ' s and ' 6 0 ' s ? 8 Q. Yes, sir. 9 A. No, we did not. We did have a cancer index 10 where we charted all our cancers in our workers, and 11 there was no clustering of cancers in our PCB 12 employees. 13 Q. Just so I have it covered, I assume you did 14 not conduct any such studies prior to 1950 either, 15 did you? 16 A. No, sir. 17 Q. Did you conduct any after 1970? 18 A. Well, when you do a two-year testing on 19 rats, that' s a cancer study. I mean it's an extra 20 dividend. You get your testing, the toxicology, but 2 1 you're also testing the lifetime of a rat. 22 Q. Did you, in your study in the late '60's, 23 early 1970's, your two-year study -24 A. Did what? 25 Q. In your two-year study that took three 170 WATER PCB-SD0000047: 1 years to do, did you ind any evidence that any of 2 the Aroclors were carcinogens? 3 A. We didn't, no, sir. 4 Q. Like to go back for just a moment and I 5 will tell you I'm confident we will finish you 6 today, though there are some topics that have been raised it could be become necessary in the future -- 8 A. A little louder, please. 9 Q. I'm sorry, I'm backing away from you and my 10 voice is softer. I wi11 tell you, I'm confident we 11 will finish you today. There could be some things 12 that wi11 arise that will cause us to call you 13 again. I hope we don't have to. 14 A. I'm available. 15 Q. I have just a couple of more areas to 16 review. First, let's go back to Anniston, Alabama, 17 in 1937. I would like for you to give me some 18 detail about what happened there, what you found 19 there and what you believe caused the problem 20 there. 2 1 A. Again now, you've gone from double 22 questions to three questions. 23 Q. I was thinking about adding a fourth and 24 decided to stop. Let's start with the first one. 25 What happened? 171 WATER PCB-SD0000047G 1 A. We start with what happened. What happened 2 in 1934 and 1935 before Monsanto bought it while it 3 was still Swann, S-W-A-N-N, two N's in Swann, 4 Chemical Company, they had a series of about 13 or 5 14 workers who developed chloracne. 6 There were other things occurring in the product at that time. It was then a different 8 dielectric, different dielectric product. It was 9 off-color as far as the color was concerned and 10 eventually -- I have to jump forward. They found 11 that they were getting this benzene from a new 12 supplier and the specifications were off. They were 13 really looking for what's causing the failure in the 14 dielectric properties as well as the chloracne, but 15 they were putting out a poor dielectric, so they 16 went back to find out. And, incidentally, they 17 found that they had contaminants in the biphenyl 18 benzene. 19 Anyway, we sent these 13 people over 20 to Dr. Jones in Atlanta. He examined them, treated 21 them, and came out with a bunch of theories that 22 going on the history of Swann making it for X number 23 of years beforehand and making it after the episode 24 stopped, he was still treating these people for six 25 or eight months. He reported all this in the 172 WATER PCB-SD0000047: 1 Journal Of Dermatology or something like that, and 2 that's what happened there. 3 As far as Monsanto was concerned, I 4 first went to Anniston probably in '37. I saw some 5 of these cases and they had no liver involvement, 6 they had -- they were well, they were back at work and they had very little residual scarring on their 8 f ace. 9 Since then, until I left, we had no 10 chloracne occurring at either our plant in East 11 St. Louis, also called Sauget, S-A-U-G-E-T, or the 12 Krummrich Plant, is spelled K-R-U-M-M-E-R-I-C-H, 13 Krummrich Plant. 14 As to the Krummrich Plant, we had no 15 chloracne. We've had no chloracne in our customers 16 with the exception of the Meigs article. And there 17 was one time early in, I think, in the '30's or 18 '40's where an outfit was making bellows 19 thermometers for ovens where you got something about 2 0 the size of an onion, sort of a leather pouch or 2 1 something that's supposed to do something with the 22 heat, hooks on to a thermostat. Well, these workers 23 had two woman who dunked their hands in there and 24 got chloracne, and on their arms, so I went up to 25 see them. That's the only one I've ever gone to see 17 3 WATER PCB-SD0000047C 1 because 1 was int eres 2 me. So I said, " Why 3 gimmick t h at they don 4 pull the s e things out 5 the end o f that. 6 So with that one exception of these two girl s, we ' ve had 8 anyplace. So as f ar as we're c 9 Anniston thing was an aberratio 10 overspec benzene, some contamin The technology of looking for c 12 pretty hard. 13 Now, what was the number two 14 question? 15 MR. BAKER: The reason I asked them three 16 at a time so you could answer the way you did is I 17 think you already answe red two and three. X was 18 just tryi ng to make it easier on you. 19 (A brief recess was taken.) 20 Q. (By Mr. Baker) Just a couple of quick 21 areas to wrap up here. We talked about the Ad Hoc 22 Committee.that was formed sometime in 1969. What 23 was your involvement with that committee? 24 A. Beg your pardon? Didn't hear the last. 25 Q. I'm sorry. What was your involvement with 174 WATER PCB-SD0000047: 1 the Ad Boc Committee? 2 A. Well, Elmer Wheeler of our department was a 3 member, but I don't know if he was the chairman or 4 not, but he was very active on that committee. 5 Q. Were you involved in the decision to form 6 that committee, personally? 7 A. Well, I don't know if it was my -- if I 8 started it or Wheeler started it, but I said, 9 "Wheeler, you got to spread this work around, you 10 can't be doing all of it yourself." Well, no, I 11 think it was -- no, he recognized the fact that he 12 needed analytical people on it, he needed research 13 people on it, he needed marketing people on it and 14 maybe he needed a legal person on it, I don't know. 15 I don' t know the number of who was on the committee. 16 MR. CHAMBERS: And I think the question was 17 about your personal -18 Q. (By Mr. Baker) Whether you were personally 19 involved. 20 A. No. Answer is no. 21 Q. I will ask, among the things we've asked 22 for copies, Dr. Kelly has testified that he 23 testified in a deposition and at trial in the Stroh 24 case which involved Pydraul. I believe that was the 25 only case that he recalled testifying concerning 175 WATER PCB-SD0000047G 1 Pydraul. 2 Let me ask you, Dr. Kelly, if you 3 recall any other cases in which you testified on 4 behalf of Monsanto where Pydraul was involved? 5 A. That's about the only one I recollect. I 6 mean, I get mixed up in these cases, you know, in 7 the last five, six or seven years, but that' s the 8 only one I remember. 9 MR. BAKER: Okay, I will ask if counsel is 10 willing to produce to us, at a reasonable fee, 11 copies of transcripts of his testimony in the Stroh 12 case, both his deposition and his trial testimony. 13 And if counsel is aware of any other cases in which 14 he testified concerning Pydraul, we'd ask also for 15 transcripts of that. 16 MR. CHAMBERS: All right, I understand 17 there have been some previous discussions about 18 doing that with others who have been involved and we 19 certainly would do with Dr. Kelly the same thing 20 that's been agreed to among the others. 21 MR. BAKER: I think what we agreed to on 22 Papageorge was that Mr. Monge would give us a list 23 of cases he testified in and we would submit a 24 particular request for the ones that we wanted, 2 5 rather than just trying to duplicate all of them. 176 WATER PCB-SD0000047G 1 THE WITNESS: Can I ask the defense counsel to send me a transcript of the trla1? I've never -- -- 3 I have the deposition. I read that. 4 MR. CHAMBERS: Sure, sure . 5 THE WITNESS: But I don't recall the trial. 6 MR. BAKER: So what I'm specifically asking this time is for his testimony in the Stroh case and 8 asking if he can identify the other Pydraul cases in 9 which he testified. 10 MR. CHAMBERS: I understand. 11 MR. BAKER: And I want to move here for 12 admission of certain exhibits. Because of the way 13 we've done it, you may want to go off the record and 14 check if any of these I've mentioned, you have 15 objections to admission at this time and I'll give 16 you my list if you would like. 17 MR. CHAMBERS: If we could do it that way, 18 that may just speed it up, if we go off the record. 19 (Discussion was had off the record.) 20 MR. BAKER: At this time we move admission 2 1 of the following Plaintiff's Exhibits: Exhibit 12/ A A 13 , 15/ 17 / 27 / 28 r 70 , 76 , 92, 93 , 95, 96, 98 and 23 99 . 24 MR. CHAMBERS: And we have no objection to o e the exhibits except the following four exhibits. " _ * 177 -- WATER PCB-SD0000047: 1 Plaintiff ' s Exhibit 7 0, we would 2 object that this exhibit is not relevant since it 3 deals with a non-PCB product being used in an 4 application other than for hydraulic fluid purposes 5 or air compressor lubrication purposes. 6 We also object to Plaintiff's Exhibit 7 9 3 on the grounds that it is not relevant because it 8 deals with an application for PCB' s other than their 9 use in air compressor lubricants or hydraulic fluids 10 like the Pydrauls were. 11 The third exhibit that we object to is 12 Plaintiff's Exhibit 98, and we object to this 13 exhibit on the grounds of relevancy, since it deals 14 with a non-PCB product in an application other than 15 use as a component of an air compressor lubricant or 16 a hydraulic fluid. 17 And the final exhibit that we object 18 to is Plaintiff's Exhibit 99, and we object to that 19 exhibit on the same grounds of relevance that we've 20 discussed with others. 21 MR. BAKER: With that said, I believe we 22 are finished with this witness at this time. 23 MR. CHAMBERS: Okay. I think we'11 turn 24 you loose then, Dr. Kelly. 25 MR. CHAMBERS: You prefer to read? 178 WATER PCB-SD0000047' WATER PCB-SD0000047338 1 STATE OF MISSOURI 2 CITY OF ST. LOUIS ) ) SS ) 3 Ie Richard L. Saunders, a Notary Public within and for the State of Missouri, do hereby 4 certify that on October 6, 1992 f at the office of Husch, Eppenberger, Donohue, Cornfeld & Jenkins, 5 100 North Broadway, St. Louis, Missouri, 6 R. EMMET KELLY, M.D., 7 who was by me first duly sworn to testify to the truth and nothing but the truth concerning the 8 matters in controversy in this cause; that the witness was thereupon carefully examined under oath 9 and said examination transcribed into computer-assisted transcription under my 10 supervision. 11 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal on October 20 , 199 2 . 12 My commission expires August 26, 1996 . 13 14 15 Leha^^P*!^ Saunderi 16 17 18 19 20 21 22 23 24 25 180 WATER PCB-SD0000047339