Document DRyy98aQVa6D43zN7DLMkZd

1. IN THE CIRCUIT COURT TWENTIETH JUDICIAL CIRCUIT OF;ILLINOIS 2 ST; CLAIR COUNTY 3 FRANCES E. KEMNER,, at al.# ) - > 4 '' Plaintiffs, ) .) -,1 5 vs. ) NO. '80-L-970 ,,- ) 6 MONSANTO COMPANY, ) ) 7i Defendant. ) 8. Before the HON. RICHARD P. GOLDENHERSH, Judge 9 10 11 12 13 JURY TRIAL 14 August 5 1985 15 16 17 18 APPEARANCES s 19 MR. REX CARR end MR. JERRY SEIGFRE1D, Attorneys at Law ,Appeared on Behalf of the Plaintiffs 20 `MR. JOHN R. KUSGRAVF. and MR. JOSEPH MASSIF, Attorneys at La 21 Appeared on Behalf of the Defendant 22 23 MARSHA SCHNIPPER Official Court Reporter 24 T r> \ V 1 INDEX 2 PHOCIAN PARK 3 Clarification ............. 4 Racross Examination ....... 5 Raclarification ........... ... 2 6 JOHN McPHILLIPS 7 Cross Examination ......... 8 9 EXHIBITS IO Plaintiffs' No. 1550 ........... INTRODUCED ADMITTED 16 11 Plaintiffs* No. 1 5 5 1 ........... 12 Plaintiffs' No. 1552 ........... 13 Plaintiffs' No. 1552A ......... 14 Plaintiffs' No. 1553 ........... 15 Plaintiffs' No. 1553A ......... 16 Plaintiffs' No. 1554 ........... 17 Plaintiff.1 Ho. 1 5 5 4 A ......... 18 Plaintiffs' No. 1247A, B, and C . . . . 19 Plaintiffs' No. 1555 ........... 116 26 59 60 65 85 91 91 117 157 20 Plaintiffs' No. 1556 . . ....... 165 21 Plaintiff.' Ho. 1556A ......... 166 22 Plaintiffs' No. 1557 . . . . . . . 23 Plaintiffa' No. 1557A ......... 24 189 189 * ' " ' y , ? . r .; v Ti BE IT MEMBERED AND, CERTIFIED Chat heratofore, on - 2 to-wit: Monday, August 5, 1985, being one of the regular 3 ' '*r 1` i'i ' * ^ i* f t Judicial days of thia-dourt; the matter as hereinbefore sat 4 forth came on for hearing before the HON. RICHARD P . GOLDEN- '5 ' HERSH, Circuit Judge in and for the Twentieth Judicial Circuit, 6 State of Illinois, St Clair County Building, Belleville, St, 7 Clair County, Illinois, and the following was had of record, 8. to-wit; 9. "* 10 k-kitie'k'kitit PHOCION PARK. 11 ' resuming the witness stand, having been previously sworn, t ;> 12 testified further as follows: 13 CLARIFICATION (Continued) . 14 .BY HR. MUSGRAVE: 15 CD Q Mr. Park, I believe when we recessed Friday, we were zoor 16 talking about the Requests for Admission and Monsanto's Response* ooh. 17 in connection with; that EPA proceeding that was ultimately z 18 withdrawn. Are those - - ozz 19 ' A OSHA. uoQ<Oz0o- J 20 21 Q . Pardon? A ; 22 Q OSHA, excuse me, yes. I,wane to ask you a couple morn * K 23 questions about that. Now, questions or requests, if you will, 24 to admit certain facts with regard to the Sturgebn spill . i ' ' . . r. : \y-v ' 1 occurring in January of *79 ware posed in these Requests, is 2 that correct sir? 3 A c Yes they were. 4 Q And what Requests were those what numbers where they S touched upon that subject? 6 A It appears that Questions No. 33 and then several 7 thereafter 34 35, 36, 37, 33, 39, 40 Z guess it looks like 8 it carries on to 41. 9 Q All right. 10 A I believe that's it. 11 Q And all those deal with the topic of the Sturgeon 12 spill occurring in January of 1979? 13 A Yes. 14 Q And what was the date of the OSHA investigation at 15 the Krumarieh facility? 16 A I believe that was February. .17 Q All right. 18 A Of *79. 19 Q Now, with regard to the first of those questions 20 dealing with the Sturgeon spill what was the response that was 21 given? 22 A The Response reads respondent -- which was kmaanto 23 -- objects to complainant's -- which was OSHA -- Request 24 for Admission No. 33 on the grounds that matters which may have r -* */ i. 1 occurred away from respondent's premises and at a time and place 2 remote from the Inspection and citation herein are immaterial 3 and beyond the scope of the pleadings herein and therefore 4 denies the same*. 5 Q Okay* With regard to the remainder of those Requests 6 dealing with the Sturgeon spill as opposed to the OSHA inpectlcji 7 was that same objection if you will incorporated by reference 8 and remade in th same fashion? 9 A Vos it was* . 10 Q And if OSHA didn't agree with Monsanto's position thatf; 11 those -- that that type of question dealing with the Sturgeon 12 spill was immaterial and not an appropriate question to be aske<f 13 in connection with the OSHA complaint and the OSHA inspection .h was there a mechanism by which they could have that disagreement^ 15 decided? 16 A Oh yea* It was our view that this was clearly beyond 17 OSHA's jurisdiction but had OSHA elected to contest this issue 18 it could have gone before the administrative law Judge and raised 19 the issue argued the point* Certainly if it elected to go 20 through the hearing on this matter it could have cross examine^ 21 the witnesses, or brought on its own witnesses or whatever* 22 ,There was a number of mechanisms it could have used had It so 23 desired* 24 Q OSHA could have had the issue of whether or not the R E NGAD CO. 1 Request was properly objectad to or not determined before the 2 hearing? 3 A Had it so elected. 4 Q Did it even bother to take up that issuaw with the 5 administrative law judge? 6 A No, in our view it was dearly beyond OSHA's juris 7 diction. 8 Q But did OSHA or any lawyer from OSHA even bother to 9 take the issue up? 10 A Ho, they did not. 11 Q How, Hr. Park, Hr. Carr asked you some questions about 12 Plaintiffs1 1542. Do you have that, sir? 13 A No, 1 don't. 14 Q That is a memo dated June 6th, 1979 dealing with a 15 16 A It's June 9th, 1979. 17 Q Pardon me, June 9, 1979, and that deals with, if you 18 will, a report on a discussion conference with Roy Malone of 19 the Post-Dispatch about dioxin and the chlorophenol unit at the 20 Krummrlch Plant, isn't that correct, sir? 21 A Yes 22 Q And does it reflect that other than what the reporter 23 was specifically told in the second sentence, does it reflect i ,1 ' i' l' f " 24- that there was other discussions or other questions answered? 1 A Yes 2 Q And does it indicate how many other questions were 3 answered or what the topic of those questions were other than 4 generally dioxin at the chlorophenol plant? 5 `A No, the type and number of the questions is not 6 indicated. 7 Q It does say a number of questions though, does it not? 8 A Yes. 9 Q All right. So there were other matters obviously 10 answered or other questions obviously answered in connection 11 with this meeting with Roy Malone or this conversation with 12 Roy Malone about dioxin at the chlorophenol unit at the Krunsario 13 Plant? 14 A That's correct, 15 Q Now, with regard to. that second sentence where it is 16 reported the reporter was specifically told that our analysis 17 of a recent product sample did not Indicate the presence of 18 2,3,7,8 dioxin, Mr, Carr was showing you, 1 believe, the rosultu 19 from some samples that were tested end reported in Plaintiffs' 20 1135. Do you have Plaintiffs' 1135 thero? 21 A 1135C. r .. b*1I k% 22 Q Nojybu want the entire report, sir. 23 A Okay.' ,. :>' \ , ( 1 24 Q There it is. *, ` ' i- ` . *lV' . J 's ' 1 A Yes, T do. 2 Q Now, he referred co a sample which wa9 identified aa 3 MB654, Would you turn to Page 7, sir, of Plaintiffs* 1135 wherei 4 MB654 is identified. 5 A Yes, X have it. 6 Q Yes And what is it identified as, sir? 7 A The description on semple label column says that it 8 is -- was parachlorophanol, Lot KL02-5021. 9 Q Are you aware of the fact, sir, that *- 10 MR. CARRi Objection to the leading form of the ques 11 tion, your Honor. 12 THE COURT; Objection sustained. 13 Q Do you know, sir, what the lot number assigned to 14 that parachlorophenol, what date that lot was produced? 15 A X believe that the L means 1979, and X believe that 16 the 2 would mean February, 17 Q All right. And if that belief is correct, then that 18 lot would have been produced in February of *79? 19 A That's correct. 20 'Q And, of course' again -- 21 MR. CARR: Objection to the leading form of the ques- j ' 1 ' -1 *" \ 22 tion, your Honor. 23 THE COURT; Objection.sustained. 24 Q Would you tell us again, sir, what is the date on 1 Plaintiffs' Exhibit 1542 as to the conversation with Mr. Malone? 2 A This press query memorandum is dated June 9th, 1979. 3 Q And is June 9 after February of '79, sir? 4 A Yes, that would be some four months later. 5 Q AndD sir, Mr Carr also referred to Sample 697, and 6 if you would, sir, can you find that in Plaintiffs' 1135 in the 7 identification table? 8 A Yes. bet's see, X have MB697, and it Indicates it 9 was re-labeled MB696. 10 Q All right. II A And so now moving to MS696 -- 12 Q Yes. 13 A Under description -- 14 Q All right. 15 A It reads 93 percent 2,4 OOP finished product, XL0316 7009. 17 Q All right. . And in this particular instance, sir, doeis 18 Plaintiffs1 Exhibit 1135-as to that particular sample give a 19 date as to when that sample was. produced? 20 A On the same basis this number would indicate that 21 this would have been done In 1979 in March. 22 Q Aa a matter of fact, is there a date of sample column 23 also? 24 A Yes, there is 1 Q All right. 2 A And that is clearly March 1 1979. 3 Q So not only the lot number indicates that but in thin 4 particular case they even have the date there? 5 A Yes. 6 Q And that does correspond with the way you've inter 7 preted the lot number designation? 8 A Yes. 9 Q And sir is March before or after June 9 1979 the 10 date of the conversation with Roy Malone of the Post-Dispatch? 11 A March would be some three months prior to this press 12 query. 13 Q Mow sir I'd like to direct your attention to Semple 14 ,MB7G8 in Plaintiffs' Exhibit 1135. 15 A Yes. , ,; 16 Q Can^ you tell us'what that product la or what that 17 ample 1 described as in this Plaintiffs* Exhibit? 18 A It's described as PCB -- excuse me PCP product cute 19 Q And do you know what PCP stands for? 20 A Pentachlorophenol 21 Q Were you making pent in 1979 in Monsanto sir? 22 A I'm sorry I just am not sure. 23 Q Have you ever heard of para -- 24 MR. CARR: Just a few minutes ego he said PCP stands 1 for parachlorophenol, and It does. It doesn't stand for pentft. 2 He just said on 654 PCP there stands for parachlorophenol Now 3 he's saying PCP stands for pentachlorophenol. 4 MR* MUSGRAVE: Well, 654 says parachlorophenol, Me. 5 Carr, He didn't have to interpret PCP. It reads parachloro 6 phenol, Mr. Carr, if you'll see that, sir. 7 Q This uses the word, the letters POP, doesn't it? 8 A Yes. 9 Q The prior exhibit you read from in fact spelled out 10 parachlorophenol, didn't it? 11 A Yes, I did not say before that the letters PCP meant 12 parachlorophenol. 13 Q Do you know whether Monsanto was making penta In 19791' 14 A I'm sorry, I'm Just not sure, 15 Q POP, this does indicate PCP and product cut aa an **i 1/ , , L 16 identification, correct? * T f= 17 A Yes. 18 Q And what is the date of that sample of PCP, sir? 19 A The sample was taken April 17, 1979. 20 Q Now, is that more, la that closer to June 9, 1979 Chap 21 those other two samples that Mr, Carr alluded to, sir? 22 A Yes, this would only be about two months prior to 23 June. 24 Q And going on down, sir, to MB715, do you find that on 1 this? 2 A Yea. I do. 3 Q And la that identified, air, aa to what type of sampli 4 that vaa? 5 A Yea, It lndlcatea It vaa 2,4 DCP. 6 Q Do you know what 2,4 DCP la? 7 A Yea, that atanda for dlchlorophenol. 8 Q What date waa that sample taken? 9 A It waa taken April 20th, 1979. 10 Q And la that sample more recent In time to June of '79 11 than the two samples that Hr. Carr referred to? 12 A Yea, It la only two months to June. 13 Q Mow, If you would, with regard to both of these 14 samples I've just had you look at, MB708 and HB715, If you woul 15 look at the analytical results that are also in Plaintiffs' 16 Exhibit 1135, I'll believe you'll find that at Page 10. MB708, 17 which was thesample of April 17,1979, do you find that, air? 18 A Yes, I do. 19 Q And what does It show under the TCDD column In the 20 analysis for that? 21 A Okay, that would be the column headed CL4, X believe. 22 Q That's right, sir. 23 A And It shows none detected. 24 Q All right, air. And with regard to MB715, the sample 1 taken April 20* 1979 what was the finding as shown in Plaintifi 2 Exhibit 1135 under the cetra column? 3 A Zt also shows none detected. 4 Q And chose two samples are more recent sir, to June 5 '79, than the two Mr. Carr showed to you on his examination? 6 A Yes they are. 7 Q And the June 9 1979 memorandum, the conversation witt 8 Hoy Malone does it refer to several samples or a single sample( 9 sir? 10 A It indicates a single sample. It saya a recant pro 11 duct sample. 12 MR, MUSGRAVE: That's all the questions I have your 13 Honor. 14 THE COURTi Mr, Carr do you have any further questlot IS MR. CARRi Yes, your Honor. 16 RECROSS EXAMINATION 17 BY MR. CARRi * 18 Q Look at Sample 727 Mr. Park which is later -- 19 it bears a date of April 27th *79, does it not? 20 A Yes, it does. 21 Q And that's later than the samples which Mr. Kuagravs 22 discussed with you? 23 A Yes. Now, it indicates it's -- it says duplicate, 24 I'm not sure what that means. 1 Q And has a date of sample, does it not -- 2 A Yes * 3 Q -- April 27th,*79? 4 A Yes. 5 Q That's later than the samples discussed with you by 6 Hr. Musgrave is it not? 7 A Yes. 8 Q How much TODD,, how many parts per billion is in that 9 later sample of PCP or parachlorophanol7 10 A Apparently there were two tiplee. One shows none 11 detected, one shows 14 parts per billion. 12 Q How, that was just slightly more than a month before 13 this press release, wasn't it, sir? 14 A A month end a half or so, yes. 15 Q How, would you refer back, if you would, to the 16 Responses to Queries or Requests for Admissions 10, 11, 12, end 17 13? 18 A Yes 19 Q You recell you discussed with Hr, Husgrave or with me 20 and Hr. Husgrave Friday that he didn't have 75 isomers that was 21 technically incorrect and therefore, you could not admit that 22 there were 22 -- 75 different compounds and 22 isomers; do 23 you recall that, sir? 24 A Yes, that it was not, the statement was not wholly 1 correct: end .therefore, was admitted. 2 MR. CARR: Would you mark this exhibit please. 3 (At this time Plaintiffs' Exhibit 1550 was marked for 4 identification.) 5 Q I hand you what's been marked Plaintiffs' Exhibit 6 1550 and ask you if you recognize that as a Monsanto memo dealir 7 with Tetr&thal?. . 8 A 1 don't recognize the name of the writer. I do recog 9 nize the name of the recipient 10 Q I asked you whether or not you recognize that as a 11 Monsanto exhibit dealing with Tetrathal? 12 A Well, I'd have to say X don't recognize it, Mr. Carr. 13 Q Does it have on It a Monsanto letterhead on the secorn 14 page? 15 A Yes, It does, 16 Q Do you recognize your name on the second page as one 17 of the recipients? 18 A Well, I was one of those to whom -19 Q Do you see Mr, Joseph Hasir on there, Joe Nasal 20 also one of the recipients? 21 A 1 was copied in. 22 Q Do you sec Dr. Wilson on Chora, Dr. Rousch on there, 23 do you sae all those people on there? Do you see Dr. Mieure on 24 there? ] A Yes, some ara addressees, some aro copy-ees (sic.) 2 Q .You see Hr, Hair on thereV Bishop, McCarville, 3 you see all those people on there? 4 A Yes. /j t . \ 5 Q You recognise those as Monsanto people, don't you, 6 sir? 7A Yes, * 8 Q And you seehthere's a draft letter there, it starts 9 out Dear Tctrathal Customers, Monsanto Cotupany has recently -- 10 MR. MUSGRAVE: Object to counsel reading from it 11 until it's admitted. 12 THE COURT: Objection sustained. 13 Q Now, do you recognise this as a Monsanto document, 14 sir? 15 A Yes. 16 Q Thank you, 17 HR* CARR: Now I'll offer it into evidence ?f it 18 please the Court* 19 THE COURT: Any objection? 20 MR* MLfSGRAVE: Yea, X object to it, your Honor, it's 21 irrelevant and immaterial to any issue in the lawsuit, it deals 22 with Tatrathal* It'a a document created in February of 1985* 23 It has no materiality or relevance to what may have been in 24 Mr. Park's mind in connection with these Responses in August of I 1979j some four, almost five years after the fact, ltre -- 2 It 1b too remote in tim, to any incident in this lawsuit or r* ( 3 issue in this lawsuit for chic Court or jury to decide* and 1 4 object to It on those grounds, sir, 5 THE COURT: Objection is overruled, X think It is 6 relevant and material. 1 7 (At this time the exhibit was passed to the jury.) 8 MR. MUSGRAVE; Your Honor, may X also note for the 9 record that X object to it being passed to the jury. It's been 10 introduced into evidence, X realise that, but now the entire 11 document is being passed to the jury, and X believe that again 12 much of this is irrelevant and immaterial, and counsel hasn't be 13 selective with regard to the document in connection with what 14 is either permitted to the jury to be read or seen, and X object 15 to it being passed because of that, 16 THE COURT: Objection is noted, It's been admitted 17 Into evidence. It can be passed to the jury unless otherwise 18 ordered in its entirety. 19 Q Mr. Park, part of this exhibit that X wish to draw 20 your attention to Is primarily that found on Page -- it's in 21 the lower right-hand corner C21340, At the top of the page 22 it's numbered 3, 23 A Yes, X have it. 24 Q Now, that's a question and answer form prepared by ,, * \ i'', jP >- i ; .JV* 1 1 1 Collins. You and & number ;of others; including Mr. Massif hero 2 got copies of it.- It was prepared; in, February or January of 3 -- I'm sorry February, 1985, and the Answer No. 13 on the 4 page that I referred you to says;there ere 75 isomers or types 5 of dioxin. 2,3,7,8 tetrachlorodibento-p-dioxin (TCDD) is the 6 most toxic dioxin isomer and is the compound associated with 7 Agent Orange. 8 Now, Mr. Park, you on your Responses, your denials 9 of Requests to Admit No. 11, No. 11 says the term dioxin refers 10 to 75 different compounds, and you said you denied that because 11 of the use of the word compounds. Do you see in the exhibit 12 chat X have just handed you that the word compound is used there 13 to describe one of the dioxin isomers? 14 A Miss Collins is not a technical parson, 15 Q Excuse me, Mr. Park, please answer my question. 16 A And your question was do X see the term 75 isomers 17 her in this A. 13? 18 Q No, Mr. Park, that wasn't my question. 19 A I'm sorry. 20 Q Do you see the word compound used there with reference 21 to 2,3,7,8 TCDD or a dioxin isomor? 22 A Yea, X see that second sentence. 23 Q And you told us last week that the reason you didn't admit that dioxin refers to 75 different compounds was because 1 it wasn't a compound. Now Monsanto in this document does call 2 it a compound r 7 ^- i- ^4 ' j 3 MR. MUSGRAVEi Object to that -- 4 Q Doe it not, sir? 5 HR, HUSGRAVE; Object to that. That's a misrepresen 6 tation of th testimony. The reason that it was denied is set 7 forth, Mr. Carr, in th Response, and it clearly states what the 8 witness' testimony was as well as what in fact the Response was, 9 and it was not denied that dioxin was a compound, air. 10 THE COURT) Objection is overruled. You may proceed, II Mr. Carr. 12 A No, it does not, Mr. Carr. 13 Q And you also testified that your denial was also be 14 cause there were 10,000 types of compounds known as dioxin; you 15 remember that also, sir? 16 A Yes 17 Q And it says here in this Exhibit 1550 that there are 18 75 isomers or types of dioxin, doesn't it, sir? 19 A That statement is made. 20 Q It doesn't say that there's ,10,000 compounds known as 21 dioxin, does it, sir? 22 A No, it does not. 23 Q And you also stated last week that the term tetra- . 24 chlorodibanso-p-dioxin herein referred to as TCDD waa vague and 19 1 Indefinite. You see tetrachlorodibenzo-p-dioxin (TCDD) used in 2 this Exhibit 1550, don't you, sir? 3 A Yes. 4 Q You also object or said you denied the request that 5 TCDD is a toxic compound. Do you see where the answer to Ques 6 tion 13 oin 1550 calls it the most dioxin -- most toxic dioxin 7 Isomer and is a compound; do you see that, sir? 8 MR, MUSGRAVE: Object to that, that's a misrepresen 9 tation of the document. The document does not say TCDD ia the 10 most toxic dioxin isomer, It says 2,3,7,8 TCDD is the most toxi n dioxin isomer. 12 THE COURT: Objection sustained. 13 Q You do see where Question 14 you deny that 2,3,7,8 TOLD 14 is generally recognized to be the most toxic of the tetra isomer|s? 15 A Question 14? 16 Q Question 14 in Exhibit 15 -- in the Requests to 17 Admit, Question No. 14. 18 A Yes. 19 Q You see where it says 2,3,7,8 TCDD is generally recog 20 nized to be the most toxic of the tetra Isomers? 21 A Yes. 22 Q And you see in Exhibit 1550 where it also says 2,3,7,8 23 tetrachlorodibanzo-p-dioxin, TCDD, is the most toxic dioxin 24 isomer? 0 AVONNE, N .J, 1 A Yes. 2 Q Kow, Kr. Park, OS1IA was using these terms in exactly 3 the same way you at Monsanto, lawyers and scientists combined, 4 used these terms, isn't that correct, sir? 5 A I'd have to answer no. 6 Q Doesn't this Exhibit 1550, didn't it -- wasn't it 7 prepared by Sarah Collins, a press relations person and distri 8 buted to lawyers and scientists? 9 i A For correction, correct* 10 Q And did anybody correct it? II A I have no idea. X assume that some did. 12 Q Well how do you,' why do you make that assumption? 13 Where is your -14 A She sent it out for corrections -- 15 Q Yea. 16 A additions or so forth. 17 Q And where is your knowledge, sir, that it was ever 18 corrected? 19 A I'm merely guessing. 20 Q Wall, Mr. Park, you've been a*lawyer long enough to 21 know that as a witness you're not allowed to guess unless X 22 ask you to guess. I asked you for knowledge. You said it was 23 corrected, and It wasn't corrected to your knowledge, was it, 24 sir? ,.r 1 A X would assume that It was, 2Q 3 Park? 4A 5Q To your knowledge it wasn't corrected was it, Mr, 1 don't even know if it was ever used, Mr, Park, my question is specific, you understand it. 6 To your knowledge it was never corrected, was it, sir? 7 A At the moment off the top of my head X cannot recall1 8 corrections, 9 Q Then is the answer to my question that it's correct, 10 sir, to your knowledge it was never corrected? 11 A I don't feel that X can answer that way, Mr, Carr. 12 With all these recipients -- 13 Q Mr, Park, do you have any knowledge that it was correc 14 A Mot. specific knowledge, IS Q Ail right. Mr, Park, if you have no knowledge that it 16 was corrected, then my statement: is true and accurate, is it not 17 18 A Mr, Carr, not necessarily. 19 Q -- to your knowledge -- listen carefully, Mr. Park 20 -- to your knowledge -- j first of all, you have no knowledge, 21 do you, sir? 22 A I have knowledge of experience, Mr. Carr -- 23 . ^i' 4 '' Q I understand that, -Mrv Park, 24 A -- gained in many matters like this. 1 Q Hr, Park, you know which draft this was? This was 2 the final draft. It*a dated February 15th, it's going to go out 3 on Monday, February the 18th, sir. Comments are requested today 4 We've asked for copies of all comments, we've asked for copies 5 of final drafts. This is it, Hr, Park, unless you have specific 6 knowledge that there's something other than this was prepared 7 and sent out to the customers. Do you have such specific 8 knowledge, Mr. Park? 9 A X have -- X cannot at this moment recall specific 10 knowledge of such, 11 Q Then is my answer to my question that you have no suet 12 specific knowledge at this moment? 13 A No, but X do have general knowledge that there would 14 have been responses, IS Q- Is the answer to tny question, sir, that you have no 16 specific knowledge? 17 A X cannot recall. 18 Q Do you know that your attorneys and your president of 19 Monsanto Corporation is going to sign an Affidavit that this ie 20 th full, complete compliance with our Request and that this is 21 the latest doUcume.n..ti- that -e have - v l- in oiir file on this point, J do 22 you know that, sir? 23 A I'm not sure; biit r- 24 Q Do you have any knowledge to the contrary, Mr, Park? 1 A I have business knowledge gained in receiving these 2 things. 3 Q Hr, Park, what you're telling ua is that you know that 4 first drafts get changed. Do you know which draft this is? 5 A No, I don't. 6 Q First, last, in between? 7 A No, I don't know, 8 Q This could be the 30ch draft so far as you know, 9 couldn't it* sir? 10 A It certainly could be, 11 Q It could be the final draft as far as you're concerned 12 with no changes made? 13 A I doubt it 'shthe;:final .draft because of the way Kiss 14 Collins worded her transmittal latter. It implias strongly 15 that it's not the final draft. She says she needs -- 16 Q If there's going to be additional changes she wants 17 them now -- ? 18 A Yeah. 19 Q She wants a feedback by this afternoon? 20 A She doesn't say this will be published on the 18th. 21 She merely says the plant is planning to discuss with employees. 22 Q Look at the first page of the exhibit. What does it 23 say? We intend to send it button Monday, February the 18th. 24 A That's the customer letter, Mr. Carr, We were looking 1 At the question and answer part. 2 Q , Yes. Mr. Park, so that we can move on from this, it 3 is true that you have no specific knowledge and no knowledge on 4 this memo whatsoever dealing with this memo, dealing with chose 5 questions and Answers that this was changed in any fashion, ien' 6 that correct, sir? 7 A X cannot recall at the moment any specific changes. 8 Q Would you answer my question, Mr. Park. You can say 9 yes, that1a correct, or you can say no, that isn't correct. 10 A At the moment, yes, that's correct. 11 Q Thank you, sir. And in this draft she uses and sends 12 to you and scientists these very terms that you denied were 13 correctly used In your Response to the OSHA's Request, isn't 14 that correct, sir? 15 A That's correct. 16 Q Mow, Mr. Park, you also discussed the various wipe 17 *t - ' i tests. You suggested chat there were some later samples that .^ i ' 'r 18 were tested and that somehow or other the findings and -- 19 referred to in the June. 12th,, 1979'memo were incorrect, do you 20 recall that, sir? 21 MR. MUSGRAVE; 'Objection, that's a misstatement of 22 his testimony. He never said they were incorrect, he said they 23 were later samples. 24 THE COURT: ^Objection is overruled. 'v- .st .iV" 1 * l , -V 1 Q Would youanawermy question, I*. Parle 2, A' . I 'm ot' sur rtmber that, Mr# Carr*; "w.V` ' ' , 3- I'm aorryf 4' 'M r , A . I 'm not sur'-I remember that.. ^ .- \ ./ 5 L K& CARRt ,Wod;you get. Exhibits 1170 and 1175 plees*)* /.'/is' v:'./ 'V'*' : i::r 6 /Q -TCtaa'khibt; 7Q/:Ht, Park, there's a date of January ?` 17th, 198 doesn t it,*?fir*. on the yary first page of it? 8-> * . *' ..A l Yes, it d o e s - ! ' :,'V`v.`' ' ,>- // v T " ' * 1 l' " '* l ' J 4 " ' V\ '' S ' < * W _" j 'I'1 ` -` *,, " ,, .9/ ,; ' Q ^And if you, look ft .Exhibit 1170, you *11 find, a .table 10 i Will-you not, ait? " r ,. . j ; ~- w' .* "* ' 1 f- . .` '1 ' - ' '> ^ * l Y.'/.. ,,'Xes../r'- ; 'V v'r '* ^ 1 r * ` - >>. > ^ .;- 12 '. u Q And 1170A already in evidence is a blowupof Table . *7 , .V . V V '' , . ,, ' -. \ 'r ' - . *' ' > " i `^ >fr> , p " / . *" **< 13 2, ia it nbfeV airl */;' ^^-v\ -. . ; '' 1V > ' " J -i. - J , \\ ' > r , V ` *- J'"- ' , '*' ,> -. . V. - A - fV^ t . - J J/ V'1 '). . L. - " 1' , 14 \ . ;A V8#it>doe ^appear t-be. that. ' 15. ,, Q And this ^tabla and... r snade in 1980, six months affcejr f j ' S rtv ^ 1P --' ^ r i: i* j 7, * r "j. ' ' r ^ \ I 1 ^. r\^ ' + 16 k the one that's referred':to, in June of .'79, shows Samples 1A and \r 5A and 6 to :hav hahogratns^per milliliter of extract, doesn't V i i*:?% ^ v ^ 18 it/airt ' \ 1 'J ^ 1? it -A -YeSV: ` 1 ' V , ;'. ^ "Ut. ' ., ';Vr ' i, - *. y . . ,- .. *' 2 0 . . Q: Aud it also^showsrusing the;hexene extract, It shows ^ . v*-rr r. ` '\ , l," ^^ r* > ri 21' 170 nanpgrams of .dbLoxih iper milliliter extract, doesn't it, eirfr : ' '*. ' - vi V- , ' ' - 22 A Yes> - v c--v ;s-; v-V 23 Q Now, if you'll look at Tabl 1 in Exhibit 1175, sir. 'V 24 First of all, 175 S dated 4th:of l4ay, 1981, isn't it, sir? >'i I A Yes* 2 Q And It's referring to wipe samples at the Krumnirich 3 Plant, isn't it, sir? 4 A Yes * " 5 Q And it shows, does it not, sir, that in May of *31, 6 two years after the memo that you referred to there: were! ClA, 7 that is, terra dioxins detected at the column, at the register 8 port, at the top of the column walls and in the open.top wall 9 of the column, doesn't it, sir? 10 A Yes. 11 (At this time Plaintiffs* Exhibit 1551 was marked for 12 identification.) 13 Q Handing, you nbw Plaintiffs-1 Exhibit 1351, see if you 14 recognize that as a Monsanto document dealing with wipe samples 15 inside Department 237? 16 A Yes* 17 MR. CAR:*: Offer 1551/ your Honor, into evidence. 18 THE COURT; Any objections? 19 MR. MUSGRAVE; X believe this is the same information 20 as contained in Plaintiffs' 1175A, your Honor. X would Incor 21 porate the same objections X made before as to wipe samples as 22 a general topic. 23 THE COURT: Pine. They're incorporated. It's admlt&<* 24 over objection. 1, 1 (Exhibited pasted to the jury.) 2 Q Mr, Park, this is a memo signed by Mr, Buckley, and 3 it want to Mr. Phil Kirk, didn't it, sir? 4 A Mr. F. Kirk, whatever -- 5 Q Sir? 6 A It's addressed to a P., initial P. Kirk, The name is 7 not familiar to me. 8 Q You don't know that that stands for Mr. Phil Kirk? 9 A That's correct. 10 Q Well, that's not important, hut in any event. It shows 11 the results of some tests on this, on a column at a level at 12 the top of the column and In the open, doesn't it, sir? 13 A Yes,.' -1 ? 14 Q And it shows those three tests that they found the IS tatra dioxins in all three tests, that is, at 12 nanograms per 16 100 square centimeters;, S nanograms per 100 square centimeters 17 and 15 nanograms per 100 square centimeters, 18 A Yes, 19 Q And then at the it also says "These levels are 20 lower than OSHA would expect to find in the workplace, area, 21 not inside a process vessel. Fred Helleman thinks you did an 22 excellent cleaning job," Bo you see that, air? 23 A Yes, 24 Q Would that suggest to you that the equipment that had 28 1 been reported on inl979 ashaving significantly higher levels 2 of dioxin were cleaned? ' \ 3 *^ r. ' j i,''j * :r ` .' " A ^ Mr, Garr, I'm not sure X can tie.in. I have dif 4 ficulty with the question, because-I'mnot -- L- 5 f \\ { 'Q;f..Well; does - r r ^^ n * ` J - 'j S 6 ..A", /--rJtie that equipment to this, -* * "x"' * ^ Y 1. Q Does it suggest to/you.that .somatic^ before April, .8 ' 1981 the equipmentin 2 3 7 wascleanBd or at least this particular . 10 11 12 j 13 equipment~that $asrbeing -costed?, ;^ >7'`.1- . / . * : ^ v-- y ^ r ? ` n s- : ^ A ; i-Th&t's 'corfecti :v0 " Q : But .even^notwithstanding choc leaning they, still fount. \ * , -.y \ ' : . . ^ . dioxin* .didnft they , sir? " *" *s\' - " * \ ' *' J4 * .p , - , - A .' / T h i s ' ^ a s ? i n s i d t f r a process vessel, / 14 Q Gould you answer my question,. Mr. Park, *. ! -15 / MR. MGSGRAVE; I'm sorry. X didn't hear yhat you . 16 ' .17 said, Mr*;Park.' V Jr , , i '` , 7 i "L L' - , yr \ .. ' THE.WITNESS: It was inside fee .process vessel, not 18 where there would b exposure, : ;; .> ;1 19 i ^ Q .' Would you answer- my question, Mt. Park, ,; , 20 >, A Yea, they -- apparently a tiny amount was found. . 2 Q And the statement that was made to the public in 1983 22 23 ' : 24 had you *ver; -- in response to the question have you ever , tested for TCDD.before now/ wejhad tested for TCDD by taking j *11 " 1 ` r -1 ^ -P ' ' ' J *. * i 'J- r * '' l , -i ;wipe sauries and found it not to be present is untrue, isn't it FEN G A D C O ..' B A YO N N E.' N .j. ' 070 02 - - F O B IL 24 B 29 sir? A . . '* r'*- " ^ '> Can you give me - - I can't read -- MR* MUSGRAVE: X believe you need to read the rest of the answer* Mr. Carr* , ^ -L | A Number of the exhibit, Me# Carr* u.t r*. r \ ; Q '1543* ' */' V .1 ,, r * * 1J -. 'MR, //,*;"M'*U: S1G`-R"'raA-V? E/'x T VS^w' o uld \< t** w; i request, r>~ . ~i >v your Honor, that Mr. Carr be required to read' the rest of the answer which makes it r ,, ^ 'p m ,' *' . fully explanatory vas to what1the response of this question was. ... -vr* 1 " 1 * ;>* z\ta'.. 7.4 ir-` i * n* > * * '^ , p Otherwise* itis misleading and it is an inappropriate* incorrect representation bf what the i-answer was. j4 ' 1 p1 1 1' MR*. CARR1 Your Honor* we've gone into this exhibit with the witness already. The Jury has it. They hava seen it* I don't think it's.,necessary for me to go through every point that has been established earlier. ' ' ' 1543? THE COURT: I don't have -- which' number is that, _ V ... \ - . MR. CARR: 1543, your Honor. MR'. HUSGRAVE 3, Question 10 and Answer 10* your Honor* THE COURT: Just, a minute*. I've found it. Objection is overruled/and the jury does have it, A * As X remember the question I believe X would have to answer no* Mr. Park, we've gone through a number of exhibits 1 from Juqi of '79 through 1981 In which TCDD was tasted for and 2 found, have we not, elr? 3 A Yes, we have. 4 Q And the statement Answer 12, we had .tested for TCDD 5 by taking wipe .samples end found it,not to be present isn't 6 , ;' .'J ! , correct, isn't true* is it; sir? 7 A Your Answer 10 you mean? i 1 ' >' ; ` 1' '*' i ; 8 Q That's correct. 9 A there's nothing in here to .indicate, that this is not 10 a correct answer. X would assume this Is correct. X guess on 11 Che basis of some of the information that we have just looked 12 at it is correct that we had tested, for TCDD by taking wipe 13 samples and found it not to be present. On the face of it 14 that appears to be a correct statement, 15 Q Oh, you mean if you tested once, you found* for 16 instance. Wipe Sample 2A0 3A, and 4A there wasn't any tetra 17 present in those wipe samples, and therefore; you take, you say 18 because there were three wipes taken where TCDD was not found, 19 therefore, the statement in Answer A10 in 1543 where they say 20 we .had tested for TCDD by taking wipe samples and found it hot 21 to be present is therefore a true statement? 22 A That would be -- 23 Q Xs that your reasoning, Mr. Park? A That would appear to be -- ., 1 Q Is that your reasoning, Mir* Park? 2 A Mot all of it, no, Kr0 Carr, 3 Q Well, what's the rest of It? 4 A The rSt of it would be that Q and A 10 obviously 5 refers to areas where there would be worker exposure, and aampIt 6 taken from Inside chemical equipment where there could not 7 possibly be worker exposure would not be relevant to this, 8 Q Well, these samples here in June of '79 and '81 and 9 after are on top of the column wells, column open top wall, 10 isn't that correct, sir? II A I'm not familiar with the equipment, Hr, Carr, J2 Q Well then, how can you say chare's not exposure, sir, 13 if you're not familiar with the equipment? A register port, 14 you know what that means, don't you, sir? 15 A Ho, I don't 16 Q A register that opens up. 17 A Okay# 18 Q Column walls and plate on the top and open top wall, 19 you know what that is, don't you, sir? 20 A Wo, I don't, 21 Q Control room table, you know what that is, don't you, 22 sir? 23 A I assume it's.a table in the control room, 24 Q There is worker exposure there, is there not, sir? 1 A 1 don't know based on personal experience, Mr Carr 2 Q Well, Mxv ?aric, then, you don't know from personal 3 experience that they don't have exposure, do you, sir? 4 A My common eensetellsmt: 5 Q Excuse me, Mr. Park., Doesn't your common sense tell ;y. v ;.i 6 you that a control room tabic there is worker exposure? 7 A I don't know about that; 8 Q Doesn't your common sense cell you that in the contro 9 room there first of all, there is workers in the control 10 room, aren't there, sir?, 11 A Ye, if it's r- 12 Q And, Mr. Park, in that control room is a table How, 13 that table is there for the purpose of the workers using it, 14 isn't it, sir? Doesn't your common sense tell you that? 15 A If it's a regular table, yes. 16 Q Any kind of table If there's a table there, it's 17 in the control room where people go, there's exposure, isn't 18 there, sir? 19 A If it's ~ by table is meant what's normally meant 20 by the word table answer yes. 21 Q Well, you don't know anything to the contrary? Then 22 there is worker exposure, isn't there, air? 23 A Could be. 24 Q And then this statement isn't true, is it, sir even 1 wick regard Co Che way you would modify it? 2 A Mr. Carr 3 Q We had teatad for TCDD by taking wipe samples and 4 found it not to be present* That is & falsehood, isn't it, sirV 5 A I can't say -- 6 MR. MUSGRAVEi I object to counsel's representation 7 because it's taken out of context. It has co be read In con* 8 nection with the second sentence. He modified it. 9 THE COURTt Objection is overruled. It's not out of 10 context. 11 A My answer is to be no. 12 Q Did they find it on furniture, on the control room 13 table? 14 A According to that table, yes. 15 Q And did they, did Monsanto say here that they didn't 16 find it? 17 A Four years later -- 18 Q Did Monsanto say here that they didn't find it, that 19 they found it not to be present? 20 A It doesn't say they never found it. 21 Q Sir? 22 A It doesn't say it was never found* It says we had 23 tested for TCDD by Caking wipe samples and found It not Co be 24 present 1 Q How you're saying than if-Shay took a sample on on -> _' '';t'\ '; f /, v <,'* i 2 occasion and it wasn't share, than that makes it a truthful 3 statement You're back to that now aren't you sir? :4 A Ho For one thing it *- it would have to be more 5 than one, because it9s used in the plural. '6 Q Ho, the question Is had you ever tested for TCDD 7 before. Thatmeans one time or a thousand times. Had you ever 8 did it before the time you found it in your parking lot* That0: i 9 what was asked, and the answer .was we had tested by taking wipe 10 -samples' and found it not to be present. That's & plain out and 11 out falsehood, isn't it, sir? 12 A No, Hr. Carr, .as\X have stated. 13 Q Did you taka wipe sables before '33? 14 A Yes. '' 15 Q Did you find it present in those samples.taken before 16 '83? J *" -/ 17 A Apparently in a few samples0 18 Q Did you find it present in the samples taken before 19 '83? ', / . 20 A In a few, yes. 21 Q Then what is true is that you did find it in a few 22 samples before .'83, isn't that correct, sir? 23 A ' Yas.. : ; . : :j;- 24 Q Then it i untrue to say that you did not find it 1 before *33 isn't It, sir? 2 A Mr, Carr, os I have stated -- 3 Q Excuse me, Hr Park, Gould you answer that question 4 5 A No, I have ~~ as you phrased It, no, Hr Carr 6 Q It is true that you found it before '83, isn't it, 7 sir? That Isn't the truth, sir? 8 HR. MUSGRAVE: Objection. Asked and answered. 9 THE COURT: Overruled. 10 Q And if you say ehat wasn't found before 983, that's n a lie, isn't it, sir? 12 HR. MUSGRAVE: Object, that's been asked and answered 13 THE COURT: Overruled, it has not. 14 A Ho, Mr. Carr, because that was apparently the case. 15 Q Well, Mr. Park, you Just agreed that it was true that 16 you had found it. Now, if it's true that you found it, it's a 17 lie to say that you didn't find it, isn't it, sir? 18 MR, HUSGRAVE t Object, it's been asked and answered, 19 in that context. 20 THE COURT: Overruled. 21 A Not as this statement is written, Mr. Carr. 22 Q Sir, would you please answer my question. If It is 23 true that you found it before '83, isn't it a lie to say that 24 you didn't find It? 1 MR. MUSGRAVE: Object, it's been sked and answered 2 In this context. 3 THE COURT: It has not baan answered. Overruled. 4 A That statement Is not in here. 5 Q Would you answer that question Mr. Park. 6 A I would have to -- 7 Q If it's true that you found it before *83 isn't it a 8 lie to say that you didn't find it before *83? 9 A That statement I would say would be incorrect. 10 Q Is incorrect? 11 A Yes. 12 Q Mr. Park it's a lie isn't it? 13 MR. MUSGRAVE: Object it's been asked and answered. 14 THE COURT: Overruled. 15 Q If the truth is it was found before '83, it's a lie 16 to say that it wasn't found before '83 isn't it, sir? 17 A I think a lie is knowing -- 18 MR. MUSGRAVE: Object, it's been asked and answered. 19 THE COURT t Overruled. 20 A Incorrect statement. 21 Q Yes, if youknow the truth, if Monsanto knows or I 22 know the truth to be,you asked me did I take your tie clip 23 from your tie, I knowwhether I took the tie clip from your tie 24 or not, and if I say,no, I didn't take your tie dip, I'm 1 exiling a lie, aren't I, sir? ~2 A If you knew you had taken it, yes 3 Q Yes. 4 A But if it had inadvertently become attached to your 5 clothing and you were not aware of it, then that would be an 6 incorrect statement 7 Q Absolutely, no question about it. 8 A -- j and not a He. 9 Q there's no question but what Monsanto knew that it 10 had taken wipe samples before *83 and knew that there wae TCDD 11 in those wipe samples; there's no question about that, Is there i 12 sir? 13 A Sarah Collins did not know -- 14 Q Excuse me, could you answer that question, Hr Park. 15 HR, MUSGRAVEi He did, your Honor, object. 16 THE COURT* The objection is overruled 17 - ri ' ^ J ,; - '* A Monsanto is not a person, Mr. Carr. 18 > - Q Monsanto as far as the law Is concerned is a person, -i j 19 Mr. Park, and you know that as .wall as X know it, ItBs an 1 ; : , , ; 20 entity, it's responsible for the actions of those people that 21 work for it and can only'be responsible. It's not anything 22 other than a collection of employees and stockholders and 23 executives and board of directors and presidents and ~ 24 HR. MUSGRAVEs Object to the speech. It's, not a 1 question. Request that it be stricken and the jury instructed 2 to disregard it. 3 THE COURT: Objection is overruled. It's proper 4 preparatory to the question that's trying to be asked. 5 Q Hr. Park, there is no question but what Monsanto 6 knew that its wipe samples taken before *33 had found TCDD, 7 isn't that correct, sir? 8 A X don't know that every Monsanto employee cen be \ 9 charged with knowledge 10 Q X didn't ask you that, sir. 11 A - with every other Monsanto employee. 12 Q I'm not asking you that, Mr. Park, and you know 1 9in 13 not asking you that. Evory Monsanto employee is not held 14 responsible for anything. The employees are not held responsib: 15 It's the corporation that's held responsible. My question Is 16 Monsanto kn^ew;,before ' * ' *.149\8*1*3 tF.hat\ wipe * ** samples were taken and 17 that the wipe samples contained 2,3,7,3 or contained TCDD, 18 isn't that correct, sir? 19 A Certainly those who analysed those samples that we 20 looked at and those to/whom they communicated would have been 21 aware of it. 22 Q You were one of the ones that -- well, strike that. 23 They knew then the truth was that TCDD was found in those wipe 24 samples, didn't they, sir? 1 A Yes. 2 Q And it is a li then to say that It was not found, 3 isn't it, sir? . 4 MIL MUSGRAVEi "Object, it's been asked and answered 5 Q - if you know the truth? 6 THE COURT3 Overruled. v, 7 A If one knowingly bakes ah incorrect statement -- 8 Q That's correct, - 9 A -- that would be all* 10 Q Yes. , 11 MR. CARR: I have no further questions, your Honor. 12 RECLARIFICATION 13 BY MR. MUSGRAVE: 14 Q Mr. Park, Mr* Carr continually failed to mention to 15 you the second; sentence .of this; question and answer here that *\ *'* ; ;' /, "j .. 16 Sarah Collins' gave. Would you read, this to us, sir, the second 17 sentence in;1iAnsLw-er No, *10.* 4 *>i ' f 18 A The second sentence' of Answer 10 reads "In taking the 19 wipe sables we; tested surface of equipment and furniture in 20 the chlorophenol unit and their control areas." 21 Q Does it say when that test or tests that she's 22 referring to were taken? 23 A No, it does not. 24 Q Do you know what she had in mind, sir? Vi- \ A No. '. , ry - >.. ;- :2 Q ' Didyou see *11 the wipe samples that were ever taktn 3 after 1979, air? J- n / /V '/ - ' -v, , ; -, r , t 4V A No;' , v ; `.. -, 'S. Q The document Mr. Carr showed you. Wipe Test inside ^ ' tr 'S ',' ( , <, 6 Department 237, April21, 1981, do ,you know when those samples 7' were actually taken? .That's Plaintiffs ' Exhibit 1551, '8- - - A -No*.I do not-.t ^_ . 9 Q is .there any reference on Plaintiffs ' 1551 as to 10 \ whether any of these samples referred to In there are the 11 surface of equipment, furniture? . L> If A It.appears that they ara not equipment -- . or'not, 13 furniture, ^ ` ... \ V' ` , ' 14 r Q , `Whati does. the".last-paragraph say, sir? , J `'i.v J, , r ,*:v ;"r ^ ' - -, - . ,.:'fVi7-'v ^ i''H' "'*> .. .15` A These levels are ;lowerthan OSHA would expect to find 6 in the workplace area, not inside a pressure vessel. i- r-j jt \ 17 Do you know If these ware' inside a vessel of some 18 kind? V #*<' 5 r- . i <' i, >.r ; t ?' i . . . J .'- . .` . 19. v A; - That statement, I think,, implies that,they were taken ^i "J - " - *L l >r 20 inside a pressure v e s s e l - ' ."a process vessel, _Vm sorry, 21.. process.vessel*, / " y J-k ' 22, . Q & a matter of fact, Plaintiffs' 1551, sir, and ' .' ' 1 . -L ; V * ' 1- rr 23 ' Plaintiffs *.1175,. are they the -- he; hasn't got a blowup of 24 Plaintiffs *;1551, does -he, but could you tell us whetherthey.1 r j,.. BA VON NE , , N .J. 1 talking about the same analysis in 1551 and 1175? 1551 says 2 what sir as far as the identification of the first - of 3 Sample.No, 1? 4 A Column third level. 5 Q Column third level? 6 A Yes. 7 Q All right. Do you see the words column third level 8 on Plaintiffs1 1175? 9 A Yes, I do. 10 Q And Sample 2, what is it, how is it described in 11 Plaintiff1 1551? 12 A Top of columno, . 13 Q Do you see. the words column cop of on Plaintiffs' 14 1175 here, air? i.' .''-r , 1p,J '' 15 A Yes^ it says column, open top wall. No, no, column, 16 top of walls and plate. ; Yes , umhm. ; 17 Q And the third sample on Plaintiffs' 1551, what does 18 it eay? 19 A it says column at open. 20 Q Do you find those words in connection with any sample 21 on Plaintiffs' 1175? 22 A Yes. 23 Q Where ere those, sir? 24 A Same words on Table 1. 1 Q Does it appear to you, sir, that 1175 and 1551 are 2 in fact the same samples, just reported at different times and 3 different fashions', different formats? 4 A Well, it certainly appears that it could be, yes. 5 Q And If that is in fact the case, that Plaintiffs' 6 1175 hare is the same as Plaintiffs' 1551, then we're talking 7 about the same samples that were all from inside some type of 8 a vessel? 9 A. Yes. 10 Q And now, sir, the surface of equipment, furniture in 11 the chlorophsnol unit end their control areas? I 12 * A Yes.'1-.- -- * ' 13 Q And these samples we're talking about, sir, represent ' *^ ^ ^h 14 in Plaintiffs1 1551, do you kriowche data they were taken? 15 A The date the samples were'taken does not appear.i ^ 16 Q Sometime before April of '81 though? ! 17 A Yes. 18 `\ Q You don't know how much prior to that date they were 19 taken, do you, sir? 20 A No * *, r \ 21 Q Mr. Park, getting back to getting back to the 22 Requests for Admission and Responses, sir, and In connection 23 with that -- ' 24 THE COURT : Before you get back into that, Is tills a 1 good point for a short break? 2 KR. MU5GRAVE: Yes, it would be, your Honor. 3 THE COURT: Ladies and gentlemen, we'll take a abort 4 break at this time, X would remind you, and this would go for 5 any other breaks that we take during the day, that you9re not 6 to discuss this matter among yourselves or with anyone outside , i > 7 the jury panel or as of yet form any opinions or conclusions 8 about the matters, on.trial. Court will be in a short recess. 9 (At this time a short recess was taken.) 10 ,PH0CIAN PARK., 11 resuming the witness stand, having been previously sworn, 12 testified further as follows: 13 RECLARIFICATION (Continued) 14 BY MR. MUSGRAVE: ; . 15 Q Mr, Park, we were about to refer to again these 16 Requests for Admissions and the questions in connection with 17 those that Mr. Carr asked you with regard to Plaintiffs' 1550, 18 the February, 1985 document generated some four years plus later 19 In the Requests for Admissions would you look at No. 13. 20 A Yee. 21 Q First of all, is the document. Plaintiffs' 1550, is 22 that a legal proceeding, any of those documents involve a legal 23 proceeding? 24 A No, no. 1550 Is just an internal effort to develop 44 fc"' 1 a questions .and. answers. ;'*y ; .' 2- . Q Questions and answrs*/WhnVthee questions and 3.' answers on a particular topic' are prepared* sir and putin final form.ar they circulated outside of Monsanto? la that r 4 `, 5 ' their purpose, to be sent out to people outside.Monsanto on an -6 * unoolicitad baeie without someone asking for them? 7 ; A ./:&, they'renoto They're developed to..".try to -- 1 1 \ %f r* - ^ . r* r 'j "P u 'S * r4 " f '' * f ^ ' '* `i V ' >' ' 8 ,, by people in the Public Illations Department to try to develop <9 . information that -theyvcan use in dealing with the news media, -. ! v ' Afi /%! / ,-kf y - * -'-v.*, *; 10. , Q , So these .questions .-that ;areposed in thse-question , 1' and answer documents sudh as.Plaintiffs' 1550 .are those; questlms <;V ,gv; '?' r V-. 1..... ' ,j - ' 12 ' that have been ;asked or quescions that are expected to be asked 3; or just what. or,,dp vycu know? 1 4 r; * ., y* t< ,, 1 ^ 'V, , ' ;. ' - - ' '* *\ '* J ` Z~)*r v ;*.r'K J; j, ^ r1 * .i , ` j4 A It.would. -- my perception ,,would be, that these are V :=s. ` 15 questions dealing with information that public, relations 16 1 tl" -k 1 parsonnel might -,, 4 anticipate tnight " r. ,, ^ be asked. <. i7 ; Q All .right. ;Then getting back to the Bequests for 8 Admissions-the legal 'document at No. 13 there what reference 19*' V is made to TCDD in the question that is posed;there? ?. ' ''J. ' ` r - -- ' ^ '. . ,: '- t _ :,,. 20- Vi ,'21 ; A Thequostion is TCDD la colon: And;lower case (a) in parenthesis, toxic compounds lower case (b) in parenthesis, 2? generally recognized tq ba tho znost toxic dioxin compound.' - ^ V" ,1 '" * * r- S ', 23 Q , All right, And that was denied? r 24 A That's correct, PENGAO'CO.. BAYONNE, ,J, 45 l Q. . All right. Now in tha-question and answer that was 2, prepared some four and,ahalfyear8 later, Hr. Garr referred yot^ 3 , to Page 3 of that, where isomers of dioxin ar discussed. Is ; 4 f there, anystatement;there that TCDI) is a compound as opposed to a specific TODD being; a',compound? , ' 5 6 A : No, the reference;here is to the specific 2,3,7,3 tetfachlorodibenzo-p-diojiinv V ' 7" 8 / Q .. With regard to the question quote "Is TfcDD a toxic '9 compound'',fka there1anything inconsistent between the legal 10 dcument and PIaiutiffs' 1550, th quastionand answer? y /'V 1'v!" . Zi 'V r * , " * . 11 ; A Let^s,/se. v>WIl\ yaa ,/the:Q and A pufc together earliibr '***-- l y y \ 12 this year refers to -- well> it refers, to the specific 2,3,7,f . . r .u. i'<v-rJ;J, `^; ; ''* TS1'.\1V^. ; ^* _ . ` 1 . l -* r 1 3 TCDD isomer whereas Question 1 3 o f t h e OSHA Requests for ' -t 1 i ^ 1 4 Admissions of 1979 merely refers tbyjust the whole group of 1 5 t c d d 's *. ''v,-v , : '/ '*' *':; ^ . Q All -right, sir. .Now, this question and answer was / 16. 3k " 'h # L' 4 .i - Jt. i . i * .r * i. 4' 1 >. f* 1 17; put together by Sarah Collins,/is that correct? 18- '19/ 20. 21 A - Yes, that Vs rights, / * ,, . 4 .` 'j ` ',p A - ' ` b ' .. 1 ; Q. And in Answer No* 13, sir, to, QuestionNo. 13 would ., J^ _ ' v - ^v 'H ^ 'r " \ J 'r :you.read--the first sentence?, * 4 1 , *r ^ r- * > ,.* /. " y * > !- * j ^ r` r 1* W * -r "p " '_/ A, ^Of the question?1-. rV ^ * "'4 i '-.V a '-v - ' 1` ^ ' a' f i., ` ^ f 22 : Q . Yiea.;.- '/`*. //"/.' . / ` ^ /-' "'P;-^./J 2 3 A . How can you say .there is -r~ ; * - L > ^ r ' T 1 L T" t ' -- " \J ' 2 4 Q ; No, no, air*: I 'm sorry., the answer. J. ? .* ;hm l * 4 F O R M . ' IL 240 P E N G A D CO.. B A Y O N N E . N.J; 07002 I A Oh, yes, sir. The first sentence of the answer is 2 there ara some 75 isomers or types of dioxin. 3 Q And dioxin there is not then -- 4 MR. CARR; Object to the leading form of the question, 5 THE COURT: Objection sustained. Rephrase it, 6 MR. MUSGRAVE: Let me rephrase it. 7 Q In using the tens dioxin in Answer No. 13 is there 8 any reference therein, sir, to the potential for there being 9 -- let me rephrase the question. In Answer Ho. 13 is there 10 any reference to dioxin possibly referring to a broad class of 11 compounds estimated to exceed 10,000 In number? 12 A I don't see that in Answer 13. 13 Q All right. Now, let me hand you what's been previous!i 14 identified as Defendant's Exhibit 905. That is a memorandum 15 from Dr. Wilson dated April 1, 1982, is that correct? 16 A Yes, it is. 17 Q Which is a couple months before or a couple -- 18 pardon me, couple -- two or three years before this 1985 19 memorandum or question and answer we've been going through was 20 written? 21 A That's right. 22 Q And who is that memorandum sent to? 23 A It's addressed to S. G. Collins and L. J. O'Neal. 24 Q S. C. Collins, is that Sarah Collins? S r t *" i I A That' b Sarah Collins. 2 Q Xh same one that wrote this 1985 question and answerV 3 ; A Yo b , sir, it is* Q I'd like to refer you to the second page of that, sir, 4 \ r* L third page actually, the second paragraph of that memorandum 5 '1 to Sarah,Collins from Dr. Wilson. Would you read that to us 6 .. 'V V * * i , 1 t ~ % r' 1 s " > ' i :/ ,t i # V .- ` J ' 1 7 please. r, * 1 r , ,^ > ' A The second paragraph reads cotinting out the two 8. 1' *' M * i ' '` '' moncchloro isomers, nine dichloros, thirteen trichloros, twenty* 9 two tatrachloros, etc., yields a total of,75 numbers of the 10 family called chlorodibenzo-dioxin. There are also 75 fluoro- 11 < 1 2 dibenso-dioxins, 75 bromodibensodioxins, a large number of 1 3 chlorobroxDodlbenco-dioxins, etc.,etc. Without much effort we 1 4 can count more than 10,000 compounds named as dioxins. 1 5 Q And.that's Dr. Wilson to Sarah Collins back in 1982 6 . .telling hereabout the possibility of the term dioxin referring;; to more than just chlorodibenzo-para-dioxin? 17 .1 8 . 19 A That's correcti . ,. Q Some 10,000 potential compounds easily? 2 0 A Yeso , - 2 1 Q What.does he say in the next.sentence after he tells 2 2 her about that back in 1982? 2 3 A He says, given all the above, it would be entirely 2 4 proper for you' to ask anyone who calls Inquiring about dioxin / 1 * 1 to be mor specific* 2 Q All right, sir* Wow, going back to this question and 3 answer, we've read the answer that she gave there on Page 3 as 4 Answer 13, but would you now read the question, sir, that sh 5 anticipates would be being asked to which she responds talking ',, , , r\ * ,, 6 about 75 is: om. er"s, or 'typ*e-s-,,. \o.f 1di\ o' x- i'n;-without saying, gee, dioxin 7 could be 10,000 compounds * Head the question that she was 8 anticipatingt ?/ V ; , - \ *l-.- l:> - 9 A Question 13 reads -- 10 Q _ Yes; 5 * - 11 A How can you say there is no health threat with the 12 dioxins found in the product? Dioxin was the material in 13 Agent Orange* 14 Q . So she was anticipating a question, sir, identifying 15. dioxin as that dioxin found in Agent. Orange? 16 A Apparently so', yes* 17 Q Anr'd then she responded with, this question In response 18 to it about 75 Isomers of that dioxin, right, is that right? 19 A Yes* 20 Q So did she have Information posed in the question 21 narrowing the type of dioxin that the proposed or this hypo 22 thetical question was asking about, the type found in Agent 23 Orange? 24 A Well, that apparently was what structured her .nkini ; ':'V . l. ;,, Q . r\. V *` ,,L . '- .I " " `: i . J r' \ *: r 'v.' .- ' J- * -*';rrv*' '.*'"'f , ' > j ^ _r 7, ' '-^ ' , ` So ho would be anticipating a question that would : ' `2 identify thfr type of dioxin? " .. . .3 . A .Yes;; V , .V , Y. , ' v- ^ 4 Q And then she would respond to 'it as she did? S' a r.\/vr??'/" V f / ' . v : i i,. 4 . , . i * . .i- v' , 6 Q Now /Mr,'Park/-going back to Plaintiffs1 1135 .-* .:; -j. <7 7 7 V jl,,- / , '* ' !V /~ J. * 7'. before we do;.that in SaraYCollitis * (question and. answer document 8 put together in 1935 Mr . Carr asked you about the reference ** J . Y ** - mw ` j v' + -' - *^ .p i*V i i:' ; 'VT'^ i . , ... J`*' J9 : therein in Answer 13 to 2,3;`7,_8 TCDD, and it is stated there, 10, is it not sir that that Is" quote "is the most toxic dioxin ll : isomer, and Is the compound associated with Agent; Orange"? ; 1 2 . r-^ 13 J;,A j' Yes// ' \V. 1 //..., ;, 7 ' 7 '- Q In fact she answered the question that was posed 14 right above, didn*t shaft,/-/ 7 V / , iIj P E N G A D -iC O ., B A YO N N E. N .J . 0 7 0 0 2 FORM IL 24 B 15 ',r.1 A,* *"Yes-->- 'i'j . , *e , v**V -' ^* 7,, . . , t _ * . _ 1y1 .* ,16 . Q / Saying that .that^a the kind of dioxin associated . 17- with Agent Orange? ' ^ .18. \\ ' A r'-Ye.',.;.' 19.. : " Q . But are the words in thiisi answer quote "generally. 20 - recognised" included in that statement about It being the mbstt 2 ! ; *'*-toxic? ^ ' -i . ~f- f 'y- ' * '` . --1 -'J,' 22 / - A e .No, ' *. '1 r.v /" - v'\ n t. ' 23 Q And again back in the Reeponse or the Requests .for ` f i r " , ' V * . *, " V 1^ t '^ * . 1' J ^ -1 K , !* T ^ 24. Admissions were the words generally recognized placed before 50 r* . i that reference to 2,3,7^ being the tnosttoxic? It would be ' 2: Response or Request No,'14. ./. /// i-. 3 A. Yes, thejr^werey. 4, Now/ turning ito PlalntlffsV 1135,. sir, you recall thaip r.'i v^r-icvV `- ' f- , -v ^. 5 Hr. Carr Identified yetTanother "sample (hat bore a date, after 6^ the aatnle8l`],that;-I/-had'ybU'-lV^tlfyvi>lsn9t that correct? *. .VW <- ;n`t?>''jf -v-*v'-l-^ . i . ,, f ) ' - ," - p .,'v. ' - i ' - X ti - - . . < t v . -V a ; '-'Yes.'. '' w * i; '* \& "; Q Xflyoutwould', "sirf [and I.believe chat was MB727, r - **.p ?^ is that correct? *f ,, ^ ta " , ^ t. io VJ,r,T A I believe .80, // V / tr ` - t 1 ; * > k^ . /' _/ 1* .ii Q Dated. 4/22, April 22, 1979, is that right? A2: ' A t believe :i t 'was. ;. 13 Q : Look, if-you.would, sir at MB736. . - ' - V 14 ; A Yes. v - v: ,' ' vt 'v / '" - ' -f ./ 15 : Q Hb736. is identified as what, sir, in Plaintiffs* 1135f . : v-V -V \ .*-f '.-V - 1 . 16 ' A . Fresh PCP-.. ^ \lr P - * FreshVPCP? t .. _ '* ` ,* 18 '" A / Y e s 'i- '-/;/ ; .. ;. \ ' /a? ' --- V ^ ,, ' " ' 19 Q . Arid ^date;;ofthat [sample?. r / :,j ' 3/ /-.//; V -*' 20; A /May 7, 1979. ^ ^ ; -.' / _V: :\ . ? ; / ' " , 2! ;: q So that* a weekor bo after the 727 saEple that Mr. 22 23 24'- Carr referred you to, is. that correct? * I1 ^ *f A . ' *<, ' , ' ^ * t, j ' ` ' M r r l' *"j* f That's Correct. .' r 1 'r " . ^ . U* `f I, - * j " '* , Q And the;analysis-of that, sir# .MB736, if you wot^Ld I 1 look at the cabla and tall ua what tha findings vara undar cha 2 CL4 column. 3 A Nona datactad. 4 Q All right. And is MB736 avan dosar in cima to 5 Juna 9 that ME727? 6 A Yea, it is. 7 Q And MB727, 1 baliava you said thara vara two tasta 8 on that, and ona was nona datactad? 9 A Yes. 10 Q And ona was 14? 11 A Yas. 12 Q But MB736 on Hay 7, *79 was nona datactad? 13 A That's correct. 14 MR. MUSGRAVE: No othar questions, your Honor, 15 THE COURT: Mr. Carr, do you have any further questio 16 MR. CARR: No, your Honor. 17 THE COURT: Mr. Park, you may step down. Thank you. 18 MR. CARR: I'd call John McPhillips now as an adverse 19 witness under the appropriate Supreme Court Rules. 20 JOHN McPHILLIPS 21 being called as a witness under Section 2-1102 of tha Civil 22 Practice Act, having been first duly sworn, testified as follows 23 CROSS EXAMINATION 24 BY MR. CARR: i 1 Q Would you state your name please, sir,' 2 ME, CARR;* I'm sorry, were you ready, Counsel? ' -i i -* ,t p, " 3 MR. MUSGRAVE; Just a moment, if I could, Mr, Carr, 4 (Pause) Okay, Thank you. i 5 Q Would you scare your name please, sir, 6 A .John McPhillips, v-'v 7 Q And where do you liva, Mr. McPhillipa? 8 A Cincinnati, Ohio* 9 Q And how long have you lived there? 10 A Almost; five years or five years, 11 Q And what is your present occupation? 12 A I'm currently a key account director for Monsanto 13 Company. 14 Q And how long have you been employed by Monsanto 15 Company? 16 A Sixteen years, sixteen and a half. 17 Q That meant you would start sometime about 1969? 18 A *69, early *69, 19 Q And directing your attention to 1978, '79, and *80, J ' 20 where were you at that time? ' 21 A I was.in St, Louis. 22 Q And working in the.what, the International Headquarter 23 for Monsanto? - 24 (1 A Yes, sir. * < - , i*T * \ : V^V' 53 1 *' 2- 3 4; Q That^would beVlo.caCid in CreveCoeur? ii :*V ;; ^ ' * v ; V f A ` ` `Y^^'siriCU L' "V ^ : '' . -- Q How longhad^you beeiU there, physically there at that "irV S :\ < V !, V-' 'f ./,'-Vv > .*.` " t "w - ' v - : time? . " r..... ;v* . .; ' A : 1 wA:s'\thQre^iii'yi'9764 i s - , ' / - J , \/ / - * * \ f *. *-.&. . . > * ' * ' r- r / ' -. 6 Q And you had been there some ,three years before the 0 - ,V - \ r ' h- ^ ' f(jL ` . hJ , k <h- 1 ^\ <1r'.- 7 .Sturgeon spill took-place more or leas,:is that correct? .8 9 fc- 10 ^ 11 12 13 14 ... 'A ; ' Y e s ;,L'sir# v-.v,i ^ ^ ^ V ,, ^ ^ -C'. Q And your.position in 1979 was. what, sir? , V, .r - L - , -J. * - / - ' . .*' J 'A 'J- Mark^et,manag`ert.of antimicrobials. >1 .h-' t A' ". . ' 1 -* J ", ' J -' - 1- . -, ,s 1 7' . Q Apd could you tell us Just exactly what that involves! A" Primarily you*re responsible for the marketing ofJ ;a .whole list of chemicals under the antimicrobial group that we -, - -. J - - > r *K . have that accounts;for about ten products. 1' ,r J( F i mfr 'IS ' r> 16 Q '' And" -- ^ *' ' f ^ A " Sir? " ^ p;'^ pL` t r *- v,"'' ?'' / ' V' .. .; . ; 17 Q That would.include chlorinated phenols manufactured ^ v'- . 18 at the Krummrich Plant?.: '- . ` / * s ^^ jr ` "" \ h - 1 :; j. ,, , '' - 19 r,J A ' .Yes,tsir. J'r-1^ v-^ ^ 1 ^ >r>. * * mw` 1 ^ , 1 ,V" ;> 2Q Q > Hoy long had you been, responsible for marketing the . ' 21 chlorinated phenols thac were being manufactured at,the Monsant^ \ 22 .'Plant as of January, of *79? 1 ^ !23 24j A , LI came in in April of *76# so, it would be a little > , ' '! ' J r ' - b ' ^ 11 C ' 11 1 1 - 1- lx j. x over two yearsV" --v/..., PENG AO C O ., B A Y O N N E , N .J . .L' > /.y , , ;^ .,x ;-' , 54 T \ r,, Jf ' J,, JV 'S }i^ x; a---aAj',, ,;^-fVxC'---'C>--.x--J->-.,,V';r,.1/; " ; X - *',j[rj- '- J_><5 A^''^^^- .,^; ^;7;.:">'./'t -'"- ,`-"---:v 1 .Q All ir'ilfgfh'hc\%yiU;iAndd--<.tKorwc;r lonngc' k'affttfeerr;B.Jaatnuumairy, of '79 dld you 2- -continue to-,.have-,the responaibility;.of marketing the ehlrinatatl - Vv ' 3 :\ .J fc $ phnols? / V-* v v y y. S'fV'V' %i Z W " `' ' /. " r-l - '*! . ; '-4,-' : A .V; -7y-a^^^a.n* dV^~ax'bVaulyf;V^' i V lT^ < '"T'1'::V;..'V " _ L :vj ... 5 - ;.`.6 , ;>T J - 7. : $' *. . > 7', ` ,Q So you wer^ id yo thon in 19 . *i>- y':- - *<V*. /' a . :rjo. 1: ' Q A .r-- ISO then go to -o complctaly different ppaition? v\7';V J'--". V 'V v 7 7 `v7 V ``':> 7^ Ys; sir'. .y v 'y . V " *:*-- % 7 V V 7,'- ;. V '/ ' V .v , /- .* r:-v-J r ,,r,.'*jV ' q x No longer associated tilth, th chlorinated phenols? ,- r ; :: *, /'1L'*h''_ 'jJ' j a V "> 1 . 7 ;ly ` *;!< *' o ; ""->/ :- _V. a -v Yes, sir. '/V'' ^ y'/ *7^' - 7 7 /;., il J Q And what wasthat.position then in 1980? , 12. .A v* Currently/the aae very similar Job to which X have r -J - ,,' ;` 4' 7 ' , ^ , , m4\ v - t p * - - /-A- J ' r^ ^- " jr \ 7t Lp_ 1 . ( ' r - ; ' ^ ^"v * jrj 1 " ' " * ^ -L J1 A -t " - | " * 13 now.^ It w-a,as.' 'c. alled key accou1>nr ,t. manager an: d_vthen .w' -i.th cha-. ng">e :. / 14 , and reeponsibillties and what have you; I went to" district 7 :v,; 15 sales ninger nd then to; key account difector, so essentially 16 - I 've ; - - -T been in ,, the sama position.^ - , 1" _t * *'A * * ,1 " h . 7l^: .7 , \ , ' ; r f ^ 7, 1 "Sl-7 "7 18 ' Q Now/did you in '79 and in 578 have responsibility for v ^ 1 - ., , - - \ n ' . ^ r' j " T4 . .. 7 7 _ ' ; >` 7 1' ^ h1 , 7 * "` ' ' 'L ,-r ' r 1 ,,. . j 1 ft . ' ^. ^' ,r r passing 'on information to customers ^of, Monsanto '0 ,who might '19^ purchase, chlorinated, phenol output^ of l^pnaanto? /. y .*r- y 777/"^/. v'r 7'.- -:\..;7.7r'. r \\ v "7- 7 20.; ; A Oh/ ycah, I 'd haye inaybe sorne indirect responsibility 21 ; at times. \Yfts,,' I. did^have direct contact with th customers,. v' 7 ` r"? *;7..lt''7 "'7, - 1 ,, , *' ^ 22 ; hut primari' l..y ;w...e have a salesJP. force^ that handles chose rooponsi 23 v 'bilit-ies;*,-,;1'7l; ;;L'/*7/-7y'T:"?';-7,7. ' ., r C ^ ` . `'v ^ \ -: ^ : 24" y ./ Q hid; th 'sales, force work under you? X .' ?" "/ '?J" / fc ' *- ^ -V , ixy*. *v ::,\s<;.Vr ^/-*7"v*,??* n^r .v.... `'it\'-J''';>-r.> '.j.-'Aj<j*'-^ '*-.-'r"* ]--.-*.'"'':',<*, A Wot,p' .-ai(fir* r.* *1^* * "'1' . Q What contact did' you have-with the sales force"or 55 what relationship?: p, r~,r>\<-& p . *. J- ` *. , y J l ' I.c ^ ' v Ytf " ^ ^ ^v r k * ; ``. r^ * A Well, ,1 worked in the marketing function, which I reported to a.manager of marketing/products, who: reported to a . ' '- j a 1 S i s ^' J^ j_ " '\ ' ' < 1` - r ir'j . ^ director of markating* The field sales force would work ' through regional managers who'd.report to;a director of field ; 'v sales, who d report to the same director of marketing so we *.t"'-V- were eventually all tinder the sales-marketing organisation, but I :had no authority over them or responsibility for them. All I did was give them assistance in terms of the marketing of .the < various chemicals that I handled. They, handled probably 60 other.chemicals' besides mine. 1 Q . Would it be fair to say that the efficacy and the safety with regard to health hazards of the chlorinated'phenols was one of your, concerns or responsibilities to deal with those problems or-problems that would arise in that area? >r A No,- sir.V;'-''vV ,- - ,p - - r- .- \ - j' r' ' ,; < - ' -A S jK -, r y m* -7 '% f ? * "U 1\ - p j. *" , - ** * jl; Q ;* Did you havea responsibility in that respect? A;` I dph*t have responsibility in health and safety at " all, I mean, it's, my/background is hardly capable to handle any of the technical nature of that stuff. Kow what the , \ technical people who would have that responsibility may advise ; . * '- ; ' * Jt - k' ' j r ' 1 . ,'rJ. ,, J ' 1 . -* ." , 1 me that this information that is necessary for the field sales '^ 56 1 force to pass on, co which I would do it, end in fact some 2 cases they would do {it; themselves, and copy mo in. 3 Q Well, perhaps my question wasn't broad enough for 4 you, Hr. HcPhillips. Is it fair to say that the customers : rl i. 5 would be affected by hasards relating to health associated with 6 chlorinated phenols in making a determination whether to use i 7 `i your product or,to buy your product, and by that I mean Monsant^ *8 '. 8 product. 9 MR. HUSGRAVE: Is that a question? 10 A Is that a question? That's a statement, think you 11 just made. 12 Q It is a question. Is chat fair to say that, sir? 13 A No, I don't think so. No, you know, primarily if che^ 14 was a question of safety in environmental toxicity or anything 15, of that nature I was hardly an expert in that area to which 1 16 would immediately defer a question to the appropriate people. 17 Q Again you misunderstood my question. From the 18 customer's viewpoint, Mr. McPhillips, is it fair to say that 19 they would be affected by the health aspects of Monsanto's 20. chemicals in. making a determination as to whether to buy 21 Monsanto's chemicals? Is that something that they look at 22 when they decide whether, to buy or not to buy a chemical? 23 A Sure, they look at it. 24 Q All right. That's -- and you had and you, of cours T l" BAYONNE. N.J. i were aware of-the fact chat whether or not. customers buy :' * 1 C/ r - - h- , ^ r , 1 ii 2 Monsanto's products would b determined or. at least affected 3 in some degree by how they viewed Monsanto's products with 4 regard to health hazards and safety effects, isn't that correct, 5 sir? 6 A I'm sura it's a small piece of it 7 Q A small piece of it? . 8 A It's a piece of it. i mean, yeah, it's a very 9 important piece, don't get me wrong. That's on of -- 10 pricing and performance of th product, the availability of II the product, you know, it's mostly when you sell, you sell the 12 chemical. You're over-emphasising you're not over 13 emphasising, you're making that as the driving force of the 14 purchase of the product -- 15 v Q Well, Mr. McPhillips -- 16 A And it is a very important part of It, yes. 17 Q It Is the threshold part o f rit, You could have the 18 best price on earth -- 19 A I'm talking from.my perspective. j 20 Q May I finish my question, sir -- and all the 21 quant!titec and good relationships with the customers, and if 22 the customers believe that the product that you put out were a 23 health hazard to them, to their employees, to their prospective 24 customers, they would indeed make a decision not to buy those ! 1 products? 2 A that's a potential, but they also have the responsi 3 bility to check the safety of the product themselves in terms 4 of their usage of the product also. It's a dual responsibility 5 Q I'm sorry, Mr. McPhillipa, but didn't ask you that. 6 A Oh, okay, J 7 Q I'm not thrusting my question in that respect. The 8 customers would want to be satisfied that the product le safe 'V - 9 within the means or the confines of the area that they're going 10 to use it before they'would even consider your product, wouldn5 11 they, sir? 12 A . Yes, sir, 13 Q And if they found that it was unsafe for what they 14 were going to use it for, they would decide no matter how 15 pleasant the price might be, they would decide or could decide 16 not to use that product, couldn't they, sir? ' 17 A Sure. 18 Q And that's somathing, of course, that you were aware 19 of all during the time you did your job insofar as chlorinated 20 phenols la concerned, isn't that right, sir? 21 A Yea. 22 Q Sir? 23 A Yes, , , 24 (Plaintiffs' Exhibit 1552 was marked for ldentificatlc y ; *r^v'i y ;i. m y u : . * y : y ,*i i t ,, <E i i'4 \ <r j m\" r ? + ^ ^ v - . j ' ' ;> ,. e- .J . <*.* 59 "at this time-.)/-* <" 1 ` ` 2, 3 J Q I jhand you now what's bean, marked as' Plaintiffs* ' ; . j ' - J. y ` _ . \ [ '> ' -i - ' >;, .r * r ' ' ` `. :Exhibit 1552;ahd ask you if you-recognize that, as a memo that ) deals with a suggestion or recommendation rather that you made 4 i r' *r ,r * * ' t. ,,. r _{ ' 5 -6 /7 .to Mr. Clayton. Callis.. (Pause) (Plaintiffs' Exhibit 1552A was marked for identificati on.) Q ,,r,;Would you:answer my ^question; sir?- -r 8- v .A .'Sir/ X didn't `understand you asking me a question, 9[ id. j - ii i*m:sorry.- I was reading the.memo. / Q Do you recognise that as 'a memo dated March 3rd, 1978 by. Mr. Kellis: that dealt with a recommendation madeby you? A Yes,: ,X recognisQ .it as g recommendation. I made by'mo, 12 . 13 1but I-don't.`know r what .. r ~ '- J - Q , Weiiy that's-.all I-asked you now; 14 \ " " MR; 'CARRs Arid I'll offer that exhibit into evidence,. 15 1 if it please-the Court i ., .7 16 , 7 '' V . . / ' THE COURT:- toy"; objections?' ' ^ ' 17. V "y V \ ,y ' MR. MUSGRAVEi Object, to. the extent, your Honor, that 18 it deals with penta, irrelevant ;and insnaterial to the lawsuit. 19 ' 20 .THE COURT,: It'svadmitted over, objection. L \ 21, Q If you would look: at 1550 v-J 'is that 1552? I put 22 / 55 on mine I think I referred to it .as 55. Ask you to look at "1552A and-agree -with me .that-Is. a-blowup of 1552? 2 3 _' \\.y . h-vv1 A Yes, 'it Is. V'-1. 24 ' 'st - ?IvJ c J,1 iil ; , r*- W 'r 5 p -j Vi--! * .; 'Jy ' ",:V' -. ^ \ -v ^ ? r \ IIfh1-,!i- . 't j ! t,' 'V 1 ' i. 'y-j -.*>- - P E N G A D C O .. B A Y O N N E , N .J. *' ;'}/> ' ; >i * 'ft v^V, Jt > s'. . i . . ' | * T .V '}* Y 1 ^ x yv;\ , 60 1; L 2' ; : L 3 ,, _ . MR. CARR: Offer 1552A if'if: pleas* the .Courts " ^ ^r ^ ^ ^ i' "^ MR,1MUSGRAVEi' Same objection, . .. / <.THE.COURT; Same, ruling. > ^ ,, r 3- - Q . Now, Mr. McPhillips, this memo deals with,an issue " " .v s ' along the iihe of"the questions X just asked you earlier, that 6 is, a concern relating to health effects' or safety of one of N^ ` ^l .f ' ^ 7 - *'* \ ** *'' ' "" t . * \ ' ' '^. "' MonsantoTs chlorinated phenols,.isn't that correct, sir? *1 8 .' :` A'. .Yes;'.`sir. 'V-'v,/ ^ 9 Q AhdJthe`particular chlorinated phenol being discussed ' ... 10/ at this 'time'is the pentaChlorophenol, isn't it,-sir? : 11 :/ 'A:; \ -Yes/ sir.' ,.V, ` / 12 v ; Q . And this memo of.March-`3rd, 1978, .better than a year 13 - ' * '/ J ,J *- , ,,t - ,- J ^L 'W _ * before theSturgeonspilltook piece, shows that in the market . 14 place you1re-competing with Dow? ` 15 - : - -. A Yes,-. % 1' ': ,; ''; ' ' * . ' - - - / 16 Q ,- And because Dow has --- has-made an issue of the 17 dioxin contone of penta, that.it's considered by Monsanto inas 18, 1 much as your, product has.:inore* dioxin in it that you then are 19 ` going to have-to prove to :yourcustomers that dioxins are . / . <-'20 acceptable? DO you see that,, sir? , 21; A _ Yes, but. Itow's4product still has dioxin in it also.; - .-22 .Q .^Mr.McPhillips, I'm^noc asking.-,you to-tell me whether . 23' \: 24 , ; Dow does or doos hot -- A oh J'i i y ' j , * i i ' 'i ' 1, ' J * . y , --i; i;? r>1,>,%. t,4'\J,, ;. 'i, i, *-i;f,ivv-.}i,\ . i'-. u\ 5i'^- /.s': -vr BAYONNE, N.j. 0 7 0 0 2 FORM' Ik. 24 B -' : . r:' i . _ V " ' ' >j '1 V ' `' ' L ''. .. * ' \t .' - . *-` -' J- ' - 7 " ' 1 .. / 1 Q content . v Tho .r r ' point . is t h'.La-t- >y.ou-r-J-.pro1-d,,Lu--c/ \e ^ Had-\r. & ` hig"her- dioxin-- ' .3 1 . VM,-A4 * 1 Y Fcj*-a- r1* it did.t1 v '**- 11 /V '"V' / j il', * ` ,, j- , X - Tt 1* . (i -k-` 4 Q And tho monkey according to thit mamo ia on Monsanto'c ' 5 back to prove that dioxins are acceptable, ian't that correct,; 6 - sir? ^ t w / j\ - j" ' ^ : r 7 i+'- j > .*/-*-1A * X r d_on,,,'t' kn*o*wj> ifr' v"ti,*>he 'm~onke*y- 8\tJ`to, hr /our,ba*1c*k,,' b'utj ^y,es, i " ;8 ' r V9 " Q WellV isn't that>hat the memo says? '. A *r 1' 1 *- '* >/, . 1 Yeah,' but that J ~' 1 " -' * you're reading - - ,r L , f J *-*1 taking a memot 10 rii; < m i; and you know, expounding on it a little bit, but that'swhat it says, yes,'- - -r ' /,J"/ : ,- Q Weil! didn't expound on it, X just quoted exactly V` ' 13J. - what it said,: r 14- -l;;. A . Okay.,''-. . ; f. -' FORM IL ' 24 B BAYO NNE, N .J. 07002 15 - . Q Ahd what it means is' is that Hr, Callis, he was, oh. -' L` 16 17 I forgot, what was his position at that time? He was either a v he was bn /the board or vice president or 8 ' 1? vA` Q .1 ' . 41 Oh, n''o*, Cl;a^yton\;-CaU-lWl" le, no. ,*: Well, ;what was his position? ""1 t / . , . ^ ' 20 " - A , 1 don't know. He had so mahy^ -- I"don't knowi<l 21 : really don't recall, / , "/ ; 22 Q Well,'whatever hie position was it was hic thought -- 23 . J. 24 ' ri ' A' ' . He J\ was no 1C.- r * vicei f,,i ' president, '7 "4 V* o r<r; on.. the board of Monsanto. Q^ ' It - wat his ,' m ~4 W-*j7 thought j(; ;K\f4 h1t.\ $ .` tat'Ph>j a" tV4' i, ^iyoyn"L,a. ,a<|J"nt, o- 1n ow has to , undertake Jk ^ r'r r *-* 1 i, j ip, . ,;v V -v; ' M y* - : V' * , I the task or has the burden to prove that dioxins don't present 2 a health hasard6. ,, . 1 /* -3 . MR. MUSGRAVEs. Object to th question -- 4 Q . Would that be correct, sir?, 5 , MR. MUSGRAVE * !Object to the question. The document r 1 1 6 is not authored by this individual, therefore, he cannot comment ' -- I %r J- 7 oh the thoughtsaof the writer beyond what is in the face of the 8 document, and the document speaks for Itself, and I object to 9 -counsel, how attempting to ask questions as to what the document 10 says other than what it says in speaking for itself and specu 11 lating and going to the mind of the author as to what he meant 1' r *` ^ ' V. `1-2 or didn't mean beyond what.is stated in the document. 13 THE COURT: Objection is overruled. That's not what 14 'the question,asks. 15 A Sir, can you repeat the question. I didn't hear it. 16 I heard a statement, X didn't hear the question. 17 M C A R R : Could you read the question to him please. 18 (At this time .the court reporter read back the last , 19 question.) 20 A On the basis of the way you asked that question X 21 would have to say the answer is yes. - 22 Q Now, according to this rmemo 'that means that Monsanto 23, is going to. undertake, to^study toxicology of the dioxins i 24 would that be a fair statement, sir? _i .r > 1 A No, sir, Sir, if I can ask ~ ' 2 Q . Well what -- excuse me, this -- 3 A I don't recall even what my -=> it says I agree with 4 MdPhillips' recommendation. I don't even know what my recom 5 mendation X don't understand the reference to this memo, 6' Q That may he, Mr. HcPhillips, but I 'm not asking you 7 about that* I'm asking you about this memo, whether or not 8 this memo means that Monsanto is going to have to undertake tp 9 study the toxicology of the dioxins in order to prove that 10 dioxins are acceptable? 11 A The dioxins in penta? 12 Q Yes . ^ 13 A Wallj I don't know, because we were out of the bu linei 14 already. We were out of the penta business in March, 1978. 15 Q Well, yor pepta -- you had a -- you were out of 16 the business of manufacturing it -- 17 A Yes, sir. 18 Q -- but you were still selling it, were you non? 19 A Oh, in March? 20 Q Yes. 21 A I 'm. not too. sure about that. I, - / - _ -1 > * r 22 Q Well ^ why would you be making a -- perhaps this mem 23 deals with the fact that you're not, out of the chlorinated T ,, > (, 24 phenol business and you're still making chlorinated phenols and 1 selling them* Pent& was just ~- 2 A Sir# we were talking penta and penta was a totally 3 different product from the other chlorophenols, you know# and 4 you're speculating also and I don't agree with thee. 5 Q Well, whether you agree with it or not this memo 6 points out that dioxins .-- well, you did know or did you know; 7 Mr. McPhillipa # that there are dioxins in all the chlorinated 8 phenols and that was found in 1979 that there were dioxins in 9 all the chlorinated phenols? 10 A No, sir, that's not a true statement* 11 Q You didn't know that, sir? 12 A X don't think there were. There are dioxins in penta13 chlorophcnol, and that was known for a long time* The type of 14 dioxins that were in there were from what my understanding was IS of the situation, and I'm no toxicologist, were less toxic or 16 less hazardous than the chemical Itself. As far as the other 17 chlorophenols -18 Q Hr. McPhillipe, maybe you didn't hear -- 19 A The parachlorophenol and orthochlorophenol there was 20 no dioxins in It..at that time. ' p , ** *L J .\ - ^ t > r* y i- r^ 21 Q Maybe you didn't hear my question* I said in *79, 22 Mr* McPhillips. V. ;,v ; . 2 3 A X .don't know if X would agree with that statement, 2 4 sir 1 Q You're not aware of the fact that In 1979 after the 2 Sturgeon spill Monsanto undertook to analyse -- 3 A Yes, sir. 4 Q the chiorophenols and found that dioxins were 5 present in all the phenols? 6 A In all? 7 Q All the chlorinated phenols 8 A There was some misrepresentation of data, there was 9 some data that showed some, hut it was very conflicting in 10 terms of yes, there wee some in there, and yes, there vas not. 11 ,, We were analysing samples in tha early part of `79, if I recall, 12 and ve found, yes, va found some in the sample but sometimes 13 reanalyzed and found none 14 Q Hr. McPhillips, are you suggesting that you are not 15 as the man marksting chlorinated phenols or have a responsi 16 bility, that you're not avare of the fact that the -- that 17 you found dioxins in your chlorinated phenols, In all of them 18 in analysis conducted in the first six months of 1979 by your 19 competent chemists? 20 A Yes, I'm aware/that we found some traces of dioxins , . , *-' . ` 21 in them, yes, sir. 22 Q Than what you said a moment ago -- 23 A But -- 24 Q You are aware of the fact that dioxins were found, 1 thousands of parts per billion found in all of your chlorinated 2 phenols in 1979; you are aware of that, aren't you sir? 3 A Sir X recall that there was various levels of dioxin 4 Exactly what they were there X don't recall sir 5 Q Well then you were aware of It? 6 A Yes sir, * 7 Q Now back to this memo sir. As far as the proof 8 that dioxins are. acceptable do you know whether, or not Monsanto V *J 9 undertook in the first part of .1978 a plan aimed at proving 10 that dioxins are acceptable? 11 A Am X aware of one? 12 Q Yes. 13 A No sir. I'm not. that doesn't maan it wasn't done. 14 Q Were you ever at any meeting after March of *78 15 where it was discussed that Monsanto now has got to undertake 16 a campaign to show that dioxins have no health hazards that 17 they are acceptable in chlorinated phenol products? 18 A But this la talking about dioxin In psnta. 19 Q Yes, indeed, Mr. McPhllllpW 20 A And* that' ''-? - 21 Q Could you juBt ansvcr my question please. I'm 22' perfectly aware of what It's talking about. Could you answer 23 my question, :sr.- /.*>.' -l*- 24 A You have to repeat ehe question. i iii 1. 1 MRo CARRs Could you read th quadtion to him again. r- _ ! 2 A I hate to be a nuisance - I 3 Q If you could just listen to my questions. 4 A I'm listening to you, but X think you ->- go ahead, t 5 (At this time the court reporter read back the last 6 question.) 7 A X was involved in some meetings, yes, sir. 8 Q All right. Now at that time you were out of the 9 pence market, but you had as an important part of your market 10 Santophen, didn't you, sir? 11 A Yes, sir. 12 Q And that's a chlorinated phenol, isn't it, sir? 13 A Yes, sir. 14 Q You also had orthochlorophenol-crude? 15 A Yes, air. 16 Q And you also had 2,4 dlchlorophenol, which you were 17 selling to others? ** 1 v ' p, ; : 18 A Yes, ^ir.,. /- * 1 f y t. s( " f *v ^ t 19 Q Now, do you know whether or not with regard to a 20 this study 6r;this attempt/to', show that dioxins are acceptable, 21 do you know whether at that point in between March of '73 and v* , ** i " * i ta -* 22 February of 979, do you know whether or not Monsanto engaged 23 in any kind of testing program of its chlorinated phenols? 24 A Yes, sir. 1 Q All right. What program did It undertaka? 2 A When ve had orthochlorophenol this la a continue, reference, I think this memo la referencing to penta but after 3 -- right about that a*me time, air, we -- when ve were 4 embarking on the aalea of orthochlorophenol, we analysed the 5 6 orthochlorophenol for dloxlna and found none detectable. Q All right. Mow that*a In March of *78? 7 8 A Sir, I don't recall. It waa in '78 aometime. I can't; recall that. 9 10 Q Now, waa there -- and that vaa orthochlorophenol11 crude? 12 A Yea, air. Q And you anticipated -- 13 A I think we alao looked at parachlorophenol and 14 Santophen, parachlorophenol. We didn't have to look at Santophd 15 If there vaa none detectable In para, there wouldn't be any In 16 Santophen. 17 Q Oh, you have aome teats of parachlorophenol? 18 19 A I think there waa aome teata run or there waa aome 20 -- you would have to talk -- you're getting me out of my 21 field, air, but you'd have to talk to our environmental people. 22 Q Well, we have -- 23 A -- the people that ran theae teata. 24 Q Mr. McFhllllpa, let me play fair with you. We have y ' 69 1 ; 1' 3 all tho evidence in as to all the testlrighthat ms. done* .All - *" - . - ' *> - . m: . , , x\ ' *, ' " iir ' t . _> . 1 * " i V, , J . " right. All right? ' - 1- *-, * ^ \ - Lj L -' , L A T f e e Y - s i r A . . - '/ 4 Q jt'ra asking you, whether or not you have any knowledge 5 of whether or not there was any testing that went on of the 6 products e tha chlorinated phenols after this mas was written 7 to find out what dioxins were or were not in your products? '' t , 1* i^ i ;1 8- A And we found, we analysed y- ' .9 Q Ekcu8 me. Boyou have such knowledge,, sir? ; 10 .. A 'Yea.J Y `' 11 . Q .All right. And when ' * ,2 t ,1 ' n* vjv ' *1 > 12 A And that was the ortho. X made reference to that. ' j i 1 ' ' ' . 1 '.. ,, 13 Q Do you have any-knowledge other than the ortho? \ 11. V - . 'v -r- . ' / ' 4 A thought during that same time -- now maybe they/ ' 15 -- >h the. analysis of ;the dctathey-looked at the PCP and f . Jt ( t ?.: i- 6; there -a considerable amount of psrachXorophenol in the ortho 0 17 . and there was norid detectableso X .think maybe the assumption 18 -- again, youfre getting m out"of my arena. ... - ti '- . ' 1 i. j - 19 f ".r , Q W' ell1'*A t\ ji usi. tV-i!* wa'l\-rnr_tV to ask'-: you .w-het_her -or not you know 20 ' of anything other then-the two sample* of OCP, .21 . A X don't recall how many, asaples there were. 22' ,, Q Wow r" mllAdo-you.know anything other than '"-l2;3 according to this memo 24 A I^.don.'t-recalll,,`y BA Y O N N E , N,J. 70 1 Q All right, 2 A Let me rephrase that. 3 Q According to this mamo you know that the dioxins are p pj 4 highar in your penta, and I'm asking you whether or not you 5 have any knowledge other than the Reicbhold and Vulcan, and 6 they specifically requested to find,out; do you recall that, 7 sir? l 8 A Yesv 9 ' Q . It wasn't something that Monsanto did on its own 10 initiative? 11 A Slot on its own, 12 Q I want to know because that was a specific customer 13 request at that time, 14 A No, air. We analysed already and one customer requested 15 it and then, subsequent, .when wo triad, to talk to another customer, 16 another customer requested, it, ^ - - 1 -i v' * ' * 8 r - * r* * r , ' 's . 17 Q Mr, McPhillips, do you have any knowledge that you 18 had analyze.d jalreaidiy_, bech*ayu,s,et t-he ioin'ly exhibit that we have in 19 evidence -- 20 . A Prior to -- 21 Q May I finish my question, The only exhibit that we J 22 have in evidence is that it was analyzed at the customer's 23 request. Do you have some. -- 24 A Sir, I don't recall -- yv 2. 3f- vt' Q All right, ; / -V- ,-y.;~ \ A r- .whether it,was per their request er what, Q - Thee the reason I 'ra asking, because you're making \, ` a statement that's contrary to the evidanca that wehave, and ' ' ' 5 ( I'm wondering if you have, such knowledge, '. ,^ 6 ,MR, OTSGRAVEs I objct, The statement the witness ji 1' J *t mads if Mxv-'Carr would have listoned/ I don't thihk is contrary 7 - JL J r, T , 8" to any avidsoace. ,9 - / THE COURT: Objection is overruled. - "10 - . Q Now do you have any/knowledge / Mr , Mc^hilllps, that V 11 any testingwas done -other: than at the pacific request of a/" BAYONNE,' N.J* 0TO02 FORM rTL 2*B- - i2 customer from the date of this memo up until 1979? , 1.3, . . 14 /' * A Prom .the date of this.memo? V", ` , - y;.y; yv ^ .. Q That'correct, sir. vy. y " ` ' T/ 15 A Siry ? don't/i^ doesn't mean whether I' v/ />,. . `'i " .^ . r "r> r. * '-l'/ ... 16 : know there was onr nontr,.*: < .k " l 11 ; - 1 -\rvJ.. \, 1 J '17 - Q r V` ^* , - 1 ,, * I*ra'aVw.are oV-f' that.y *v Ir "-mV ;*asl. king w*hether, or no-t you kno r `t 11 _ J i ;.18 it, sir, Xf you don't know it it could have taken place a 19J 2p thousand times and you don91 necessarily havs to have knowledge ofT it,, t : ^ y ` 'y\ ;.'" '" _ y. % v/ 21 yA\ That's true. 7 `y-. ./ v-.-V; ;V 7- ^ '22 j- 23 &- : 24- Q ;edge. f A. But I'm asking.whether or not you have any. such knowl No, sir, V . 1 'f ^ .. V . `i ; ; - J.'\ i ' 72 t Ks 1 Q All rlght*:\;;\;V ' ; V * - 2 A I don'tJr e c a l l ^ : ; ,/ ? r 3 Q Now, there wasn't any program that you're aware of J* 4J then, as I understand It; that you have knowledge of today that ; Si 6 wQs undertakon in 'yS to flnd out whether or not your chlorinated 1 >F *y * f - V. T J # A ^ F 4 1 ^ , phenols did or did not have dioxin levels other, than the custom* r -7 ' requestson the instances we just discussad, isn't that correct, . 8; sir?.,' .. \-/'//, ` 'V*{ 7. , i/. -.>r' 9 A The way you phrdsad that question, X got ,to answer 10 yes, but Idbn't agree with the way you asked me that^question/ ' " ` * - / Vj. `-r- * . , ' Q you don't agree with the -- with what pare of It? 12 : A Becauee we analysed earlier prior to *73 for dioxins ` 13 in the ( ^ various f*qcahlbropheholh'*aA.nfd found none. We analyzed in 14 , '73 and we, found none. Why do you continue to analyze when/ ` '.r . r// '7"* / H~* u- \ ' .'V '; 15 - you don11 ,fihd -anything? ^i t *sinot there, w e .didn ',t expect it 16' to be .in there. It was. much to our surprise when we found sme ; : ; . ' ' i 7 - in there asra.restait of the Sturgeon spill, ; 18 Q /Mr,. McPhillips -- :f,- 19 A , You just don't keep ^looking at something at least my 20 thinking is- , i' ^ \ : ,/ 1 jp 21 Q/ tot me give you one reason why you wouldn't continu 22 ` testing . If you don't find it there, you don01 have thevknowledge 23 : that it's there, do you, sir? 24 r A If you don't find iti you don't find, it. PENG AO CO.i BAYONNE. N.J, 1 Q And if you don's find it Chora you don't have the 2 knowledge that it is there, do you; sir? If it's -- if you 3 4 A I don't -- you're not asking -- 5 Q If you tested something -- 6 A You're making a statement to me. 7 Q . If you tested something 8 A I disagree with the statement that you keep saying to 9 me* JO Q .. ` Mr. MePhillipe, do you think that the chemistry of 11 making penta -- making chlorinated phenols remained the same . -- 1/< * -"'V,H f . .* > i { - 1 , ' 12 in all batches?. -'.'V? \l \\ ' '1` , 13 A Sir, I can't answer that question, , it' ^ 14 ? ( , *^ Q Don 9t you know -- / _;v 1 ^ 15 A I don't toow;that question^ sir. ,*, : ,\ ; 1}`| ^>; 16 * *V n " * Q Or do you know -- 1 17 A I wished X could, but I don't know. 18 Q Mr, McPhillipe. do you know that it can depend upon 19 how much caustic was added or whether caustic was added, it can 20 depend upon temperature., it can depend upon the accuracy of the 21 operator in taking out the particular cut that he wants to take 22 out; do you know all those things? 23 A Hot to be an expert on it like you are. sir. no. 24 Q Well, Hr. McFhilXlps. I'm certainly not an expert. 1 What I know about it Is what I've learned from the documents 2 that are In evidence here and from the testimony of the witness 3 and that's the reason I'm asking you, sir, whether or not you 4 simply because you test for It on one day, it doesn't necessaril 5 mean that It won't be there the nest month, does it, sir? 6 A Well, I think there's more to it than that. You're 7 asking me a question totally out of my field, sir. 8 Q . Well, if you don't know, Mr, McPhillips, just simply > say you don't know, air, 10 A I; dro.ni'*tlkno,w-. ;, ,< .* " 11 Q All right. 'But if you .don't test for it, you obvious^ 12 won't find qut that It's there, will you, sir? You don't know 13 it's there without t e s t i n g - 14 A X disagree with the way you're putting that statement 15 to me. }j * v * r' 1 E ' 16 Q Sir? 17 A I disagree with how you're making -- you're making 18 a statement, you're not -- 19 Q All right. To find something is there you have to 20 coat it, analyse it, don't you, sir? 21 A Well, you test it -- 22 Q Excuse me. Would you answer that question. 23 A Yes 24 Q If you don't test, then you can't find that it's ther4 75 1 can you, sir? ,, - - .\ (,, J< '2 ' '\ A I as"sum,e'* th'afJt,*s "corr*ec't, ;si*.r/. `:* *, 'i , 1* t <, f ' 4 * m* '" r ,, \m 3 Q So if you've got a product that's manufactured in 4 , August of 1978 end you don't teat it.you don't whether that . : -5 does or does nothavedio:dLh,do you. sir? 6 A The way you haveasked me that question, I would have . 7 - to say yesV hut I disagree with the way you're asking me that 8 question*; - .: V ;L*' r ' - ..1 - .... , *. -t ,' * .; . k'r j'\ ' ' V9' <Q :Wall, let's bring it down' to data; You do know, that ^ i>vf\ / ?i" V/. 'V " ib . v > -- J-. / > * It * y A ! " , yt r- , / * you did diecover to yours urprise that dioxin w s in. the tank n ; car in Sturgeon; you doknow thatdon't you, sir? V -I-' V * V'*V jfvj -J h- ` f' 12. ' A Yes^.isir^-:- ty :-y - ;*: - .* 13 Q ;'Now# was there anythingyou believe happened with tha^ 14 one particular batch,to came dioxin to be in that tank car? 15 A ' don't know,-:sir* V \< -V 16 . Q :As far as you know, it was being mad the same way 17' ' that orthochlorophendl was being made all throughout '76, wasn't -18" it, sir,, so/far as-you know? . r \ - ^ ^ rV:'" .19 ; A I don't know,: sir. 1 don't know. 20 . Q. .Weli, Kthat's my question. AeLfar as you know, it was 2i ' ' being made the same wa>|V wasn't it, sir? 22. ,>v A I don't know ,that. ,I wpuld not have any. knowledge 23 i ` / r J ', \ r 1V , i' ^ '.' ", as to how it was. exactly made. '/ ; ; ' .< ^` 1 .T ^ t, *' * - r ^ t _ *, * "T J '^ . 24. r Q That's correct, sir, and it would -- end we did s' r j* FORM.-IL 24 B BAYONNE. N .J.. 07001 I know that it was there in January of *79, don81 we, sir? 2 A From, the analysis of, I guess it was EPA, and I guess 3 some subsequent analysis, we found some dioxin in there, yes, 4 sir. 5. Q You do know that it was found in the 2,4 dichlorophen* 6 in February *79! you know that, too, don9t you, sir? 7 A Yeah, but wasn't there soma conflicting data -- 8/ Q Excuse me, could you answer that question please, sir 9 A On one analysis there'4probably was, sir, yes. 10 Q Is it your belief that It was just one analysis? 11 A I think'we embarked if I recall, sir, we embarks 12 on a very thorough analysis of trying to find the. levels of 13 dioxins in the product and see if they represented a hazard, 14 and studies went on for great length, sir. I don*t know the 1.5: details 16 Q X*m asking you whether or not you -- - whether you 17 know that it.was Just on analysis that found the TCDD - 18 A Yes, there was soma analysis, yes, sir 19 Q You do know that Nebraska found it and you do know 20 that your laboratory found it in 2,4 dl -- 21 A They found some, yes, sir. There was soma levels, 22 but wasn't there was discrepancies of data? I don't recall 23 Q Well, you can see in the -- you are aware of the 24 fact that some of your 2,4 DCP spilled in the plant in February 77 i of 979? 2 3 Carr? 4 MR. MUSGRAVE; :Could you Identify thatexhibit* Mr. MR, CARRi 1121A.: \ "; 'S' MR. UVSGRAVE; 1131? /; V' y `;,' "/ V " 6 MR; CARR: 1121;'mid; 1168 and 1169. V 7 A, You say a spill in "February? -:-- '8 , i i-iY^'* j/S'' 'r'''-'-* TM - q ; A`isf'Spiilrl' to*'o'*kr!;' p}l ace^ iv{n/Febr uJ ary of *79 at the plant. , ^y.7 ^ ' V-1,\* ' - :; 9 ' A-. 2^ diehlorbpiionol? /"' /'?,. V / y / / , '10 Yea. V:- ..V >5 * "q *r;fcT -t_ t' ` _ J u . 1 . mSm , i* S L Jl - lln 12 * k I didn't know that sir. i 'I -. * - J ! ' / ; *i *VJ ' * . . TM V- - J jf'- r * - v .% 1 ` 1 I ^ J J U- ' v- I * 4 ' . ` Q , Arid you didn't know that Nebraska analysed it, that. i r ' h Hp .J J |3 first of ail, OSHA analyzed it and said it's got:300 parts per 14 billion,Ihaif pf .which, is 2,3,7,8;TCDI)? " , / A . .Whsn. did they analyze: this? ./ 15 16 Q yBxeuse ine Mr. McPhillips. Do you know that, sir? ^ r -L s *i ^ . j, J s . rr r " * k 17 A OSHA analyzed it?, , /, ,f 18 Q `Yek. *'> }yv y _ ; y ,.-y . " '/'> :J 19 A I ton*t recall ;that,:sir... 20v Q . Are, you aware of the v 21 , A It's bean a long time. I'm-not. saying 1 didn't know *22' it, but I don't recall it/, 23 Q Are you aware of the fact that your own laboratories 24 * ,y " " * ^- r - ' , ` 'I . r , at Dsyton analyzed it arid found 479 parts per billion of TCDD, 6 AVON N E, N.J, - I\^ ^. N- ' "tf** J ' * "" 76 1 657 pares per billion of TCpD, 49A pares per billion of TCDD, 2 and 489. parts, per billion of TCDD? 3 A VThat*s what it saps, sir*.k . 4 : Q I*ra asking you, sir* I know, what it says, and it's r 5 been in evidence forsometitue.r X 'ia asking you whether or not 6 you In 'marky>e..ti 'ing w- e-Kr'e>'awr*a'. r.e,i of l'r.jC *t,,J h- e\ f ac'rt that your own laboratory r 7 found that in your '2y4KdlchloropheholT w r; ^ iv'i\>-h^ w7 \ ^ ^ ; *; ' 8 . A We found some'levels -- , / > /A 7" V V ^ 0 v.* \ 'v ' .9 Q My^questiph^ is; are you;f'aware ` -- . 10 "'Ar .Yes* sir; i. -' V* i f< j > `.y* hV;i i`Xi-;i' ^'-j . 'J ' r.A' , ,,- ` . -- li ** ' Q Nowyouknowthtthiawas or do you know that this 12 Is whet was spilled in February of *797 7 :;v 13 ; A ; Kq, I was hot aware of the spill in February of *79 14 in the plant, sir* v, . ^ t 15 Q ;!Are you aware o f .the:fact that it was found not only .16 in the orLhocholophenoi-cjhide, not only in the 2,4; dichlorophen^l* A i J 18 i? but it was also found in the Santophen? ;1 A ,( Of tetras? ' '> ' ^ ' - , . .Q Yes.* -'''V ~r i ;: " , .\ 7y\7 4 .. ; _ '7 7, * - 2(T A There1e various levels, yes, sir, but I think we 21' quickly changed the process todolvo that* 22 J Q .Hr. McPhilllps, if you don91 mind, just limit your, 23 if you couldv-. ^ '- ' - * * v' . 7" .24 ''A It*s difficult,', sir,y -' ' j 1-r > `J "7 * 7 .jz'- ,," ` $. ' BAYONNE; N.J, 1 , Q Because you told me -- '2 A I'm in marketing, X have a tendency to talk a lot. 3 Q You told me earlier that you didn't know that you 4 found dioxin in your -- all your chlorinated phenols in *79# 5 A Sir, you know -- 6 Q Excuse me, Hr,:McPhiilips, ^ ; . 7 A Go ahead. j ,' 4 .1 k `i , 8 Q And you do in'fact know that dioxin was found in all 9 of your chlorinated phenols in *79, don't you, sir? 10 A Yes1, there was some analysis of that, but there was 11 also some analysis of some samples, weren't there, that said 12 there wasn't none in there, too, right? You're giving half the 13 story probably. 14 Q Hr* McPhiilips, believe me, we have thousands of 15 exhibits here, the full story has if X am asking a questioj; 16 that you think gives half the story, your lawyer here has the 17 opportunity to clarify it* 18 A Yeah, but why do you only .give me half the story, 19 Q Because, Mr. McPhiilips -- 20 A I.mean. It's been six years, 21 THE COURTt ,Hr. McPhiilips, answer the question. 22 Don't make any comments about that or your opinions about that 23 They are not relevant, they are not part of the qmszion, they 24 are not proper. Your attorney will have an opportunity to. ask SO 1 any questlone when he in his professional judgment feels need -- " -i * i' 2 to he clarified from this, cross examination. It's not your 3 judgment to make. Now just answer the questions. 4 - THE WITNESSs ^apologies. , f-i --,' 5 Q Now, Mr. McPhillips, are you aware of the fact that 6 in 1979 -> this is 1301 that I'm showing to the jury now . '7 v r V'"'1 'r'1 ' L" / - r - analysis of productein.1979 showed total dioxins in some 8- products to be in the thousands parts per billion of dioxins? 9 MR.MUSGRAVEi Let toy objection be renewed to showing 10 that exhibit to the jury on the same basis as before, that is, 11 it reflects interferences and reflects them as being findings. ;12 THE COURT* Objection is overruled as it was before. 13 A. Yeah, there's a whole bunch of dioxins, yes, sir, but 14 there's 15 .q 'k- 16 ^ A But there is convoluted data, if I recall it, there 17 was. some problems in the analysis, a question of how we were 18 analysing the material, sir, if X recall during that -- if ^ 19 you're talking early *79 especially.' f* 20 Q Now chose are samples, Mr. KcPhillips, for your 21 information taken from data from tests as late as 19S2 on pre 22, existing manufactured products7. These are not to suggest that 23 these were the tests , -- the^e are the dates the products was 24 v- v ' manufactured, not the date of the test, sir. <- BAYONNE, N-J 1 A Oh. 2 Q Novc Mr. McPhillips, if these products that ware belai 3 manufactured in *79 had levels of tri and tetra dioxins and 4 total dioxins.in .them,, is it not a possibility, sir. if you 5 didn't examin vyour product or test'your products in between 6 March of *78 or April of *78,, think is the latest, and 7 Febrry of *79i isn't it poesib. sir, that you had dioxins 8 in all of these.products`being manufactured in *787 9 MR, MUSGRAVE: Objection. 10 Q In view of the fact if this exhibit is correct, i n . 11 view of the fact that you found them in '79? 12 MR. MUSGRAVEi- Object, speculation and conjecture, 13 no foundation that this witness would have the expertise even 14 to speculate as to that. 15 THE COURT: Objection is overruled. It does not call 16 for that. 17 A The way you're asking that question X got to -18 the way you're leading me down the path, X got to answer that 19 question yes, but I disagree with it, sir, 20 Q No, you disagree. -- 21 A You're making -- 22- Q Mr. McPhillips, may X ask you the question. You 23 disagree, do you not, sir, that these.are true figures, don't 24 you, sir? A Goy I' ' disa greve. ?* / . ' , : lr Q You dieagre you're saying t;-> A Ivd:o1nJ!t know if X}. -v: " k J J1 a tvhrey,1 a1r- e; dr a -;J.% not, siri \ Q Isri't"that';r i1 ' ,t1 - j > j~l ' ,, V A I assume if we generated them, sir' . Q, Assume that they are'"correct* 1"v k- '-\/Y8y Sir; V \ ; " Q And your knowledge tells you, that if it was found there in 1979, that it could have been there in *78, and if we didn't test in *78, 4t could- have, teen there /rid wo would never haveJriiown it,s.isn't thatcorrect, sir? A Hot totally, air* I cn reverse that for you. .Q Excuse me, could you answer that question. A Thoway you've asked that question you could assume that, yea# 'oir.'v ' ^J .. '' ` '- . * -v -v\.-` L * i. J, V 1 r- f * .n "> *r 2 y-. "* i 11 v ' 4 -/ *v r v, ,, , \:: ' , . , , V - Q .How, .to* McPhillips, inasmuch as you had not done testing with your products ,1ji prior to February of 579 you personally were surprised by the fact that it was found* there, weren't you> sir?: ' r , MR. MUSGRAVEi ObJaet to that# The question assumes L - ' r 1' " ' r% * n* *j "r ^ that .there was'no teating prior to January of '79, arid that's contrary, to all. the evidence* . . . .^ \ Q' . Other:than what.we've mentioned* ,; THE COURT: With that addition, overruled, f. I^ 1 *MR,MUfcGRAVEr /ThafcV alto contrary to the evidence, 2 ` - - 3' - yr \,r 4 5* '' your Honor, -?Other'than, what chte' gcnElcinan might "remember Iv; v / v `* h b l v V ^ v - V / v ^ V v 'v think would be the appropriate question. I object to it. ' THE'*-COU*R*X,s} *Obtj-a'cit-ion ?ls ov*e*rruled / b .J`V. --'V ***'V - W .V r , . Q Would you answer the question,.sir. L .6 ' .7 A Sir} there isinodioxihs in 19 '-- when' wo analysed for the product In 1976 -- . in *78, ' ;` ' `8'; V Q Mr^ McPhlllipa. you didn't listen to toy question* `j , "1 ^ t '\ " - * t< ,, j, ^ ' i. r - 9 Would you listen to my question please* 1 kt. ,, ,f , *" 10 A' V 11 listen to your question. 'M' ' MR, CARRf (uidyou -read the question to him* (At this time .the court reporter, read back the last jf 13. question,} v - v ' >, , 14 - MR, 'MUSGRAVEj Repeat the same objection as previous!^ .-1 5 * * v" - made. * / ,, -, 16" DC- O 1,. - f 8^ - V17 -*/ O ' * -* V o- y .18 ; \ V ' 19 THE COURTi Sameruling. - i ^ : :V - ,-j* V _.1 Ifell* i ,disagree with; your atatemant# sir, 1-' v :; MR, CARR: Your Honor* would you direct the witness PENGAO C O ,, , BAYONNE* N.J, '20 A. And X will v, , r r 'v.1 *:21 . THE. COURT;* Mr, McPhillipo , : ./ -',22 ; A but to Answer;the question, yes, - 23*, , ^ THE COURTV' Wait a second;. . ^Phillips# I have - 24 .. told you, and I'm not going to tell you again. Answer the . :V - * J . -- - ; v* '* -'V i -1 34 ,,, ' _. - " 1 question. Your disagreement with the. question, the way you > - '2; *v . ` 3.J 4V baen stating; tha'dleag'reemjBnt":.r-- >'' t -. 4 / t ' 1 y* 1 * * >' * - r ^ V^ THE.'V-iW. I'*T-NEt SJSS * */. *T-he *wa" y'ihe a>s'*k;e. d mo thJ~e. q"uestion --- - * * >.-* ^ *?i/!1. r*A_ , ;i ' > .'Lm. ' -1 '** k* ** THE COURTf , - Is not proper.. Just answer the ques '7 5 6 tion* ju> ; . .. ' .- Matter of fact you; wrote e .memo expressing surprise. 7 J 8; dldn11 you;;sir? - * e. * ' \ * + s ' - A Yea, sir* 9; ' - .s '",\0 .Q And I didh't make up this momo ,dld I,/`sir? /.A What-memo* air?; [ 11 .: Q -r - Y6u prepared the ,maEo. , A, 12 ' .A -.What m e m o ? / ;' ^ / 13' . - : Q ' The memo that: you sald that you wrote,expressing, your >14 - surprise. . _ JVa ^ ', , , 15 ;j 16 -A I rdidn't say I wrote a "memo of surprise * Q. ' You dita't say that you just wrote a memo expressing v 17 surprise? .Z /- / .;/Y. . ', r/ 1;8/ ^ 19 r'/ r A - -. Q 20 , A You sald that; sir.Y''1' - /* : *' f . ...v .% No , 1 said you v?xote one, didn`t you, sir? . Yeah/ I guGQs I did^ sir, yee. ,, -\ 21 . Q ,Yes,'you did* / /, > `22 .`23.' 1 '-i i-24 ,MR* CARRi Would you.mark that ae a Plaintiffs1 Exhibit? (At> this time Plaintiffe',Exhibit -1553vapd 155'3A-was A" BAVONN,E N .J. 07001 y I 85 L' * '> J"'"-' >'1 T.- i f1 j -* * \ :- ^ ' \ " ' . , >\ \ . ` UV- ,1 j---', 1 J ''-y. '-'-y *.'>;/'! 'Jj, i,*. ; -/ *'' : markeyd4 '- - f'o'ri* d. en*t/ i, fi, ac1\at*is-(-.o:h'n' j.->')' :'-s( 1 ^'-. i ; r~a-J'V l*^ 1Li * ; V7 ' . r -, - 1 ,, *-^J* rL. "* * 2 . . Q tryHcPhillip8^7l *11:hnd;younow what's been marked, .3 Pylai,n"J-t'if'fs,r*''vExifVhibi*it/{ii"i,$j15iV3y/jy,,a*n'idt*.;,,y-a;, -s`kyAvyJ.oiu'.,j- first 1 ; of,alrl.,' is 1553A - 4 - ' a'blowup o f 1553,sir?^ \ 5 A t iIt looks that way, sir* 6 ` MR-, CARR* JJOffrT. 7 Q Oh , do you rceogniEe that as a mcxno tnade by you dated 8 '\ February 20th, 1979,. sir? v: ; ; .: 9 ' ]A\ Yea, air,. . j- 10 . v :;/m ^ musg! U ^ / ~ % .. v 11 , ; M . CARR* : It la. Offer, 1553 and 1553A into evidence 12 ' if it please; the Court/ ' / . '. ? 1*3 : ' THE COURT: M y objections? * ;, 14 MR, MUSGRAVEi No objection* 15 THE COURTi . Admitted without objection. 16 J- (Exhibit pesoed to the Jury,) 17 A Q Mt* McPhillipa, this - r In this mmo - - first of 18 / , you mak*1 e one inadvertent ' L^ - L error , ' tYou 1say, 800 parts par,; -, ."J) -1? million, Is fat, , you meant :800 parts per: billion, did you: / 20 21 , y -,tnot,, s' ir?)^ <r *>f, -j*yt-'/ ;.*' 'J"_S'*, ,' j-* V,,i- - A Sir, I don*t know, I mean j*-1rr. '4<> I don't * recall, f 'i;;%*H--^' . , 1 mean, >' ' '.L,t-H ^ *. '1 . k tr . ^ 22 ' this is 1979, sir, and I .I don*t recall. 'r ''' , v * ' 1 23 Q Well, let me refresh,your >- 24 * A The only; reason is somebody gava ms that information. PNGAD CO., SAVONNE, N.J: OTOO .' FORM IL, 14 B f Vi*'-V . - l' v 'V/.' ;V ,WV'-Y 'c`V'""- AI . I - f ' y r * * u j VVU VV>;- -.-nY;. 86 1 sir. - --, i, v t; v,^ . * ;, t v. Y; ^ J ,j V-- J->.>'--v ^,,*" K' j ' 'Y ** i i ; ' ,>-! t v , ; *: * ` , 2 ' *Y Q / Well; you.might,have heard it million.J In fact,, you 3` "" . 3e " l ''I.;i1 ;21V 'lI-J-tf<.tVjtf`i ,tvi'''i*'f-i; c , ' >'V `.i-,' i ' ,. . can see.according to Exhibit 1301A the total dioxins in that 4 . tank car is. 824 parts per billion. .You,sea that/ don't you, b**"*5 5 'sir? - 'Y :V/CJ ' / J- Y '' ; *" ^ \V I J . ' * J r'j' i. 1 rl 6 A I' eee 824,. butl don't aeeahyrefercnca.totha parts \7 \ 1 -,lJ . ' ' -'per- billion; Y r' / Y \ Y ' V , / r ^ i 'V: , Y 1 Y Y Y v y -Y --- Y Y- ' Y' --Y ... \ 8 r ,Q ' .Right up there, ppb* . - ; /> Y 9 A, Oh; okay. Thereit is. - I 'm sorry. Y 10 Q So while your,.maxno describes it.as 800 parts per \ ` ; >..Yf r' ' ... , V : y . V ./ 'V, 11 -'million iti that tank car * ,in..fact. I want you to assume that you 12 \ war:in error, tthat in faieitVit was 800 parts per billion 13 Viould you do tiiatV sir? Y ' 14 " ^ -A Thank,yoUi sir. > 15. ;<' Q' ' I'ia sorry?-: r. 16- V &. J j . r'J >*-''< , f,r *r . . - / A " -^as^'sir.. Y v:.L ' v-- Y ` *, -*<' - " " > :YY `i ", * Y , . 1 7 : : ' " -'Q'^ v "Howj :in this; Y .'v. v r v Y r*'\ *- 18.. A . My grammar has never been the beet. ' 19. Q ,,. I'a sorry? Y ; V :V:, Y-. ;.' 20 mr ' ` - -r. f pr J. , ,t ` - ! i ^ .. L' i - i t" A My grammar has never been .the-best. ' ^ "p . Y Y i ' f*/1f*j,- Y* * -- :'Y;vYv'\". 4 ?/.Y Y * j .Y 21'' QY. McPhiliips, in 1553 you .state that it's a surprioi 22' - finding;1don'tJyou; sir;/ of dioxin? .. . 22 " 24 V " A Yes, .sir. ." Y ' v-`.Y v ' Q And by;that I takevit;to mean that you were, that you * L. ** ' * 'i" *1 ' , .. *1 j * l '- BiYO N N E. N.J. 0700Z -FO RM 'IL Z* B \s I at Monsanto, not just you, that you say hero that you were 2 surprised. Isn't that right, sir? 3 A That's what I said, yes, sir. - 4 Q And now, you make the suggestion that you ought to 5 analyse for dioxin in POP and 2,4 dichlorophenol and Santophen- 6 1, don't you, sir? 7 A Vea, sir, I do say that. 8 Q And they accepted, whether they did it because you 9 recomendad it or did it for some other reason, they did indeed 10 ra-analyze their product, didn't they, sir? 11 A Sir, X think they already started before -- by the 12 time X wrote this memo that was already .started. 13 Q , Wall, in any event, they did analyze it, didn't they, 14 sir? 15 A Ves, sir. 16 Q flow, Mr. McPhillips, you point something out here 17 that X asked you of earlier, that is, the selling of your 18 chlorinated phonols to your customers would be adversely affect i 19 if they can sea that there were health effects in the chlorinate i 20 phenols that they bought from Monsanto do you see that, sir? 21 A Ves, sir, X see that. 22 Q Now -- 23 A X didn't say health effects though, sir. 24 Q Wall, what other reason would they not want to buy 1 your material with if they found out that dioxin was in it 2 other than health effects?, 3 A Sir, they could Just be just emotional, just emotional 4 reaction* 5 Q Their emotions would be associated -- 6 A Whether it's founded or not sir* 7 Q Their emotion would be associated with ,the fact chat 8 their instincts would tell them, their emotions would tell them 9 they don't want to be contaminated with dioxin That makes it 10 emotional, doesn't it, sir, but it's dealing with health effect^ 11 isn't it, sir? 12 A Xf there is a health effect 13 Q If`there is -14 A -- but just because there's dioxin in it -- 15 Q Excuse me. Hr. McPhillips* Xf there is a health effe<|: 16 17 A Xf there is e health effect* 18 Q Your customers, and whether there is -- 19 A X would be concerned also, sir* 20 Q Hr* McPhillips, would you let me finish my question* 21 A I apologise, sir. 22 Q You believe that because of the way the customers..look 23 at dioxin and health effects on dioxin that this could seriously 24 damage the sale of your produces, don't you, sir, as stated In > *( i ? 1 this memo? 2 A The way you asked,that question, yes, sir, yes. 3 Q Is there any other way? You meant that -- you said, 4 but I am afraid -5 A Sir, you're asking -- 6 Q Mr* McPhillips, let me finish my question*please,, 7 A Yes. 8 Q You said in this memo, did you not, but I am afraid 9 this Is not the case with our PCP, 2,4 DCP, S-l customers and 10 the reaction could be determents! to our business from a sales 11 environmental standpoint, period, end of quote; you Say that, 12 don't you, sir? 13 A Yes, sir, I say that. 14 Q And you're making that statement In this memo because 15 you at that time believed that the customer's perception of 16 dioxin in your product would make them not want to buy it be 17 cause of possible adverse health effects, isn't that correct, 18 sir? 19 A The potential existed, sir, but I think -- 20 Q Isn't that correct, sir? 21 A Yes, sir, the way you asked me that question, yes, si?1 22 Q And you because of that recommended that the entire 23 chlorophenol complex be looked at to avoid another surprise and 24 also to take necessary action, If any, isn't that correct, sir? ,? : r~,, -- /.'. /. * * ' ^ ?; 4 k 5 / ** . - " ~ V*- 1/ / l' r . 11 < l-Hi/ / " 'L>r . < ,7 \ '|* ,**I ; iO > l 1 V " ` A Yes/ySir V/V;!' *\ ' ` v ;-v , '. ", / ; '2 Q r. ;Now,. was one cf/th possible actions that might be taken, would that ban tiying cuecorners that dioxins war in ; - 4, th product?-'^ . - ;, / / -'/v * ' ' S ','., i/:*^ -5 A;-. That thacwouldbe one of the actions? , ,'V'v ; -" ,}/'//*. '^ 6J "-Q-' ; Yf., . ; --/* -,/ ,/ r. "*./ / ' , : . ,7 ' ; y,: A - That would be one of:th/actions if th dioxins in fr'A.1v ; / -8' theproduct represented a hazardyin the use of the safety of 9. ` tha product. yco , c ,, *'* 1 *y *" ,r. < j , rsir , v *> o*r n,, -l1yi , rif it . . i , " `waa s` ` la "P h'ut m^ar n saft ety' or eminent. r * r, y i " , !0V hazard, V ,y// >, " \ ` / ,, , ; .V . 12 ' -i 13V r -, ' . - 14 ^ -, rs"- Q ' A' yn. ovtrh. e1*r oi n o"hf ^th,es * actions mightba to change f s f r*i tvhe ^ '4 - ^ 'V' ^ ^ ^ ` ^i (- ^ ^ 1 , ,1 - manufacturing process 'as It;:existed' in order to.eliminate as t /"* r':V.-;. *j',F.>.v,,[- ><;/" .* s"r ,, . , ',^ much.as possible by that change thsformation of dioxin? '- /.Yes/ sir;.": ^ '^vv 'Ca ;.'r -'*"'? /- -, t,r; / ' :,15 / , Q jr Any other action that. you think of that you might /,. '*-- --'V/" ,r^/; .V,' -i*; / `. ` " c' / ./ 16/ have meant byy th words '''take necessary action"? ' , / ` /* . . A I can't think of any right now, sir, ; J'-- ` r. ' ri f' /l8?'? Q Now, at this}point in tim ,Lane:and Fink/ Sterling . : 19 J; - > ^20:t > ;- Dr' ug :time Company`} one" of ` thei.'"rV' /d'iviJ.s''iionjB^ ,J>'you/ were `r ,,having a dl\ffi'Lciu*1l' ' with tana and Fitik convincing them that they should stick - *2-1' ^ V n/" i with Santoph^^^weren'fr/youV,. sir? \ ; j/. * .. J; ;L -'-22; -, */: ,/'/-.Yi '"Sir -/>// V y L.r-; ` V 23 / / ^ MR, ^JUSGMVE r Point in timc being? ' ' 24: ` >/ \V r7<_ " 'u Q In 1 * j" * i *. ^* \ r ^_' 1 early *7^ :at;thev.period of time we *re ^ y f ! [ yr '/i'v---. '. f^ , / Y -L ,^ y r ' , ^ ^ -C, . '_t : > -': ^ r: M _ '-r . : * , // talking * k ; J - j lM `/v ;J, *5 J <*7nV^ vf'-.W - V. < p. *> - U, about. 2; . v (Plaintiffs,:Exhibit 1554 was marked for identificaticn".j',')V'- , Q Handing you Plaintiffs1'Exhibit 1554 end ask do you 3 .: ..r,V>'\ ' -V>. ` 'V\' -, "r \ 4:' ire'eogniso that V~-': first -ofrail, is what will be 1554A a w * blowup of 1554? 5< * 1 - - : 1 ''> . 1 1 . //_ 6; A .f';lr looks that way, sir, yes. sir, v ,, r r i-* t *7. v , ;. \ (Plaintiffs1Exhibit 1554A,was marked for identlflcati oh.) ; '8. ' ' 9. M ' MR. CARR: v - **r ' " b ^0f^f7/r l554 i - ayn1d ^ 554A '* if " 'i1 t ' pt lM' e- ra-y*se the Court ,~ ">;?HE,/oeRTr ;Any objctions^V^ 7?' ^ ; MR. CARR:..: il haven't giyth you, a copy. 'I 'iii sorry;. , 0 ;* ,l ' >' * , Ky LL"fc r 1; * 1 .>. k ' ^ ^ I got diverted; :r ;^ J, 'v' y H' s -1 . '' ;\ .`-s'' ; ` \, s -H - 1. * jt -J K, L ' * / .. " , n f' - i* \ _^ * * -4v -: " ' ^ 1MR/.MUSGRAVE : W.would object on the basis that it ' ' v1 2 , . ' *'1i j < (? h r r -j j n1 \ ~ >m , i, "* j `j ' _ ' 4 '1 j /'r." i >s T li ' i , 1 *.* deals withSantophen #/tht; it !s after :the;spill ; your Honor 13 it's irrelevant and immatorial and ndt probative on any Issue 14' 15... when weighed againstbthef cohsidertions. . V THE COURT: .It's! adroitted oyer-objection. 1 .16 17 \ (Exhibit passed to the Jury*) " Now, Mr. McPHiXlipsin the exhibit that we just 18 19 : looked at, 1553 the one.dated February 20th,1 -79 -- ' - ifes, sir.^ . 20 J ..* J- rV : :/ Q You recognize that ypur business could be, your 21 chlorinated phenol business could be hurt" quit; badlyrif the 22 customers learned -- "if ;,there was. in fact dioxins in your - 2 3 / *" -j - ...< 1; ' ' -1 24- Jc"h^l' orittftt"edk pihy-enVol. s-^, and Ify* .o%*u. r'f ""cusedir.Jers.. :ilearned of the presence i1 . - 1 - ; , >- 1 " ' ` , '[ - ... j , - T... - : ^ i\Vt :/,.]r\;VA.'; iv1 >, -.v . - `-> ' . > - r iM%,1J-?"*!-"i.'..i5T-'J ,r `A V '',v ^vAlVJ'"L-1/../t-''':r-r7^>. <-j;>>.'J:. 6 ' rt S' - L;. -' . ' r. A ^ L:r:,;-f>, NJ : 07 0 0 2 l F O R M , IL 24 B 1 of dioxins in the chlorinated phenols, didn't you, sir? 2 - A That was a potential concern, sir, yes, sir, but it 3 wasn't something we were going to hide. 4 Q Well, X question -- r ..s 5 A You?re representing -- 6 Q My question specifically is you recognized at that 7 time in February of *79 that if dioxins were present in your chlorinated phenols and if the customers learned of that 8 9 presence your business would ,b hurt? MR. MUSGRAVE: It says could be, Mr, Ca^r; 10 Q Could be hurt., 11 A Could be. That was a position that X felt was potent! 12 13 yes, sir. Not all customers, but a potential threat, yes, sir, 14 Q Well, bn important customer'is discussed in Exhibit 15 1554, that is. Lane and Fink. 16 A Yes* sir, ^ 17 Q Lane and Fink was a very important customer of your Santophen-1 process, wasn't it, sir? 18 19 A Santophen-1 product, yes, sir. Q And they here or in 1554 are concerned with the pos 20 21 sible safety of the germacides made in the -- from a phenol base, aren't they, sir? 22 23 A Phenolic, yes,' Air. i if . *i ,, ' 24 Q As a matter of fact, you point out -- r,J * (1"V'?V,r``I*v ' ' 93l 1 . A It's more environmental, sir,not health. 2 ' Q Wall, che environmental; -- , 3. >'y A - They're concerned for environmental. , 4 ' Q -- environmental aspect, when you talk about environ') '5 - mental safety, you're only talking about it insofar as it's 6 v. going to affect the ultimate-health of human beings, .aren't 7 >you, sir?,^;/-'' , J - r ` ` \ ' * ~8- A. Eventually, yes,, sir., but it's --' ti 9 N . Qv ,Yes. So whenone.wants/ to -- ^ when one is talking ^ 10 about the.environment thathe lives in, he 's wan; ing to live ,; .11 in an environment that.doesn't have harmful toxic substances 12 in it. That's the reason,you're, trying to protect the environ-;| 13 ' iaeht, isn't that correcti sir? . 14j ;; "A . ;That's part" of It,:sir... , * , . _ *\ V/ ,15 Q . Well, an important-part of it, isn't it, sir? yV\ .' ' 16 ? _.'r 'A' - Yes, sir. V'' ' / J'- 17 'Q * Hatter of. fact ./the very name, ,'the EPA is Environ 18 . mental Protection Agencyv isn1t, that correct,, sir? 19 \ A " Yes//sir.- : -/ /_ \ .20 Q / And you mentioned the importance of that issue and *'* y 21 the safety on the environmental issues when you mentioned , .- f\ U W \ ^ 22 r dioxins,, doh-fc: ypu,i air?(,i *M ;,I * :^ ' 23 A % -Say that again,;' - . . ' ' - j -- . j- ,, J1 \ '!-f-r-v- j'v- V*r,.."f -'Vi ^v *( ; ,. ; 24 J Q JYo'u-U.rje.ciio\g;n.iral;edr;>the.imVp-ortance o`f'the envi1ronment.and-y -PENGAd VCO-.l BAYONNE, N.J * . ` -vV / ] t i.r . ,, $ k - z ' - ' V . '' > 1 safety in th environment when you mentioned dioxins and put 2 it under the category of environmental issues# don't you, sir? 3 A Yes# sir, but I have a question mark behind it, tooD - 4 sir. 5 Q Well, the question mark at that point -- 6 A Question marks. 7 Q The question mark at that point is you're not yet . 8 sure at that time that dioxins re in your products other than 9 .the OCP that was tested,'isn't that.right, sir? 10 `A I think.that was,'yes, in that time ta^l* yes, sir. 11 Q At that point in time there's still a question mark? 12 A .A question mark,. 13 THE.COURT: Hr. Carr# is this a good point to break; 14 for lunch? 15 `MR, CARR-: Yes, your Honor, it is#\ 16 THE COURT: Ladies and gentlemen, we'll break at this 17 time. We will resume again at one o 'clock, and 1 will remind 18 you that you're not -- the .admonishments that I gave you 19 earlier will apply during this break also. Gentlemen# could t 20 see you at the bench for just a moment please. 21 (At; this time ;th jury left the courtroom and the V' . / 22 following proceedings were had at the bench.) ,- r * _y~ - mtj 23 THE COURT:; Okay; , X would suggest that you discuse / ;/*' r > -/'/i ; 24 with this witness something about courtroom etiquette and' ' f" *- 'J*T; tvf-";i''!;'%' > 9s: ***. * 1 waiting until a. question is asked to respond and answering the '2, .question that1a askedr ;. ,/ ; "Jj_/' 3 ' MR. MUSGRAVE:'.Okay. 4 / THE COURTt- I ;think it would be in his interests and ` 'r 'x- ' ' .r,V ,, ' 5 it would bain your interests since there is a motion pending, 6; about asking; that you be held in contempt for this type of 7' action before. / '/ x ; x /, r 8- ' 9 'C* V MR. MUSGRAVEj: .I wiU/talk .with him. , THE COURT:; Okay^fine. > x-; x J` 10':- (At this time, Court recessed for lunch.) 11 . ; * ; ; ` - JOHN McPHILLlPS. / ; < _ . .. j i, . j t. . - 12. resuming the witness stand having been previously sworn 'J _ . *^ V U- ^ ' 13 I ' -, testified further as follows'} T 1. '* _r r ^ 14 / ; r , r * /. . '.// S-/ *. ''' ^'/-L -CROSS EKAMXMATIOM (Continued) . . . . . -. 1* - Jf \1 , is. MR.CARR i Give the witness Exhibit 1326 please./ 16 ; Plaintiffs'..Exhibit'. ' x. '" 17 Q Mr. McPhillips; could 1 have -- " .18 * HRv CARR: The; jury has beeri passed this exhibit once 19 during the examination ofIMr. Edwards and X don't think they .-` <. ;f [s : .yi~v 20 ' have, their 'exhibits .with^them. -eo X halve another copy made for 1 f&.i`/J *.V,t;.k`XX ' *. .r - 21 theta. - 22;' iHE::COU.RT.s,WhichVa'anber /is,that? 23 . MR. xC.iAXRRyiv ( 1326.1*':v '/' :/.'"// f.,; /.vV,- 24, THE'COURT : T ^ k ^ y o u / ^ `? `, an ii hh'oj"' moto 'f *;;jnnoavb * 1 (Exhibit passed to the jury.) 2 Q Now, Mr. McPhillips, this exhibit is a memo that went 3 from Mr. Edwards, who has testified here earlier, to Dr. Wilson, 4 who has also testified here, and you received a copy of it, is 5 that correct, sir? 6 A That's what it states, yes, sir. 7 Q And it addresses the point that we had discussed 8 earlier with you, that is, the fact that the presence of TCDD 9 In the chlorophenols is of very high importance to the con 10 tinuation of those chlorophenols, doesn't it, sir? 11 A It states that, yes, sir. 12 Q And it points out that any dioxins present in 13 Santophen-1 may be sufficient to discourage a customer, even 14 though it does not present any health hazard; do you see that, 15 sir? 16 A I see that, yes, sir. 17 Q Now, you understood that to be the case, did you not, 18 sir? 19 A That was part ray belief, yes, sir. 20 Q Well, did you or did you not believe that any dioxins 21 present in Santophen-1 might be sufficient to discourage the 22 customer from using it? 23 A Some customers, yes, it could be, yes, sir, 24 Q And what they would do, even though you might think ; 97' ,1... that^ it doesn't represent f * '" ' i ^ a he' alth hazard - '* th'ey, w,,oul d usej, chair '2 own judgment 'and could, decide, even though it may .not be true, 3 ' they could dcide that they don't want that product because it 4 5* has dr iox-ins"<Ji*nV .it, 1 , "i r isn't .that correct, .. ^ \ ' t' ^ , * 1L*. - - - sir? 1 * A Oh, I don't know if I could agree to that# 6 ' Q Well.why would the presence of dioxin discourage a 7 customer under :such circumstances: then? J^ . ,` J Y-.yy-"'* .1 ; / ' /* l. n--, '"8 A It: could be. just clearly an emotional issue. \ 9 Q .Vieil, again it's emotions connected with health and. " -10 v; ' r " . t * safety of their ..employes and their customers> isn't that correct, ri sir?.,. ' ,p - ///'"S V - " V"-' /_'V _ V 'n , ' ?\A .\ Yea, sir,- " .. "v . - 13 : Q It is a . \it is them or. he customer exercising 14 its;or his right not to use .something that might have, even " -15 16 17'' 18 , 19 . 20 21 though it would be extremely remote,/that might have a health hazard associated with it,"is that correct, sir? > A. ;The.way you state.that, yas, sir, .. Q And 'dp" you believe ,>Hr / McPhillips, .that your customer^ "*_ > / ^ iu \ -;t'/ - 'M/ are entitled to know whether br not there are dioxins present so that:they [can exercise their':judgment,as to whether or not ^ . --Jr/ \X:\ j^i y./?iv. ; - \ ' \ ` it's something' they want to use and be exposed to? . 22. >23 24 . A Not ^really^vsir;/noV J,e Q You believe that they don't have the1right to make : that decision,-is, that correct, Mr./KcPhillips? PENGAD CO,. BAONNE, N.J. QOO' FO.RM; 2A B 98 1 A .1 don't know if; I would put It that way, air, but'if '2 , you let me expand -- :t; r 1, ^. 3 Q Well, that's the*way I'm putting it, Hr. McPhillips, 4, Do you believe that they have the right bo make the judgment ' .5 for themselves as to whether or not they want to he exposed to '6 . dlOXin? L''Y ' Y .Y-'''Y " <; Y A In;my opinin, no, sir, I don't think it's totally .8" n e c e s s a r y . Y % : cY >, 9. Q , W, in your .opinion whether it's neceasary or 10 - ' ^ _j / -_ , ,, not, I'm asking you whether or not you believe chat they have . 11 the right to make the decision, yes ,. I'm willing to be exposed:' 12 to dloxin.or no, I'm not billing to b exposed to'dioxin? Do , 1 3 ' you believe-they have.the right to make that decision for,them* 14 selves? i , Y ; p, ^ 15 R:iUJSGRAVEe ; Object, thi;question has been asked, 16 and'answered. \i .17 *' ',THE; COURTx /o.yarruled/Y^Y, V 18; ; j. iK ' v^*^. vV u v / ,,. l'y.-\ -- ' A ; rethink' I7'answered it,`ysV air, Y - 9 ; Q And you1re,saying Is that; they don't have this right, > 20 r - ' `\ ^ Y ';( *v,Y Y Y jY Y yv/ r , isn't that what you're sayings Hr, HcPhlllipa? ' r 21 Y j''..< : `{s -Vj". v ...*, , r\ A Yeah,- 1 guess, v.it^s1not e question of right* ,22 - Q la that is your, belief that the customers don't 23 have that right, is that a belief that is :adhered to or accepter 24, . by others at Honsanto that you have knowledge of? ; ' `; T * v y - Y : ^ -r\ t ,, .u ,. , ,7 07002 BAfONNE. 1 A X don't know, sir. 2 Q Are yo speaking then just for yourself? i- 3 A I'm speaking for myself, sir, 4 Q All right. Now, and in your judgment the people 5 that buy the product from you do not have th right to know 6 whether or not there are dioxins in that product? 7 A They have the right to know if it -- X believe they 8 have a very firm right to know if the product and if,the level 9 of dioxin represents a hazard to them, to their employees or 10 ; to their customers. , 11 Q Well, do they have the right -- n A X definitely agree with it. Our position and all our 13 analyses we felt that it was not a hazard or eminent hazard, 14 that the product itself' -- we had 30 years or 20 years of IS safety data and.30 years of sale of the product, the customer 16 has sales of the, product;,, thay;had EPA registrations of their 17 J .> *,.r ri";;,,'-- . ,^--. formulations,-which required safety data and human safety data, 18 and they had,to get,the-approval of the EPA before they sent It, 19 so they were fully aware of the safety of tha product and in 20 their belief obviously; they felt, it yas safe because they conr 21 tlnued to use it. I'm assuming they're continuing to use 22 orthobenzochloropheno1, sir, 23 Q Nr, McPhillips, what you did though, what you related 24 was that you made tha judgment.that the dioxin present doesn't 1 represent a health hazard 2 A I did not make that, my people did, sir. 3 Q ,, Well do you believe that your customer has tha right 4 to determine for himself whether or not whatever dioxin might 5 he there represents a health hazard or is that something that 6 Monsanto makes for him? 7 A Well, the customer has the'-right to test the product 8 fully and ask the fully questions in terms of safety data. We 9 supplied all tha safety data that they historically requested 10 of the product. We did not hide a thing, sir. 11 Q Are you saying then that they have -- if they want r 12 to know if dioxin is present, that they should do the testing 13 themselves? 14 A No, sir, 15 Q Sir? ,- .* V ,' ,l . ` ' 16 A No/;sir, X didn't say that.- , `Vr ' r* ` it 17 Q Well, let me ask It again then. Do you not believe - 18 well, take yourself, for'instance, don't you believe that you 19 have the right to decide whether or not you want to expose 20 yourself to the risks of whatever chemicals might be in a 21 product that you're buying? 22 A Do I haves the right? 23 Q Yes. 24 A I have the right to feel if it's a safe chemical, yes, 1 I do. 2 Q That*8 what I'm asking. NOw -- 3 A What the impurity it -- do they have the right for 4 an impurity, and I'm saying I don't necessarily agree that they 5 have the right X don't know if -- that's a strong word, sir. 6 Q Mr. McPhillips, are you saying that you don't have 7 the right, to know what's in a product that you're buying? 8 A The right? 9 Q Yes, the right 10 A Oh, I don't know if I need a right. X guess -- 11 Q Excuse ma. Do you believe that you have the right to 12 know what's in the product that you're buying? 13 A The way you're phrasing that question, yes. 14 Q Now, if you believe that you have the right to know 15 what's in the product that you're buying, then you must also 16 believe that the customer has the right to know what's in the 17 product that your customers are buying, isn't that correct, sir? 18 You wouldn't take s, right to yourself and deny it to the cue- j ,i \ 1 t 19 comer, would you, sir? 20 A Sir -- 21 Q Could you answer that question, Mr. McPhillips. 22 A X disagree with you, sir -- 23 Q Are you saying that -- 24 A With the way you're asking me that question. 1 Q -- you believe that you have the right to know, but -2 yet your customers do not have a right to know, la that what 3 you're saying? 4 A I'm saying if I want to have -- 5 Q Could you answer that -- 6 A ~~ the right to know sir I'll ask for the right to 7 know, If I don't have the right Just because X have the 8 right doesn't mean I asked for It sir. 9 Q I'm not asking you that Hr McPhillips My question 10 is you believe that you have the .right to know what's In the 11 chemicals that you're buying and being exposed to don't you 12 sir? 13 A If I ask for it yes sir* 14 Q 0h(;you have the ri^ht only if you ask for it? 15 16 r A If I ask for it - I'm assuming -- >*- ( ' -'-I \t ' Q Excuse ms* Is that the only time that you consider 17 that one has a right i: _Isj* w,%h^e,n. he asks, for It? 18 A Or when it represents an eminent hazard to health, 19 safety to the employees or my employees or to the consumers 20 what have you. 21 Q Than If you don't know that there's a possibility of 22 dioxin in a product, you would never ask, would you sir1 if 23 you don't know that's it there and if you naver ask then you 24 have no right by your definition of the right to know, is that 1 correct, sir? Did I understand that correctly? 2 A I don't know if X understood the question right* 3 Q Well let me start over again. Do you believe that 4 you have a right to know what's in the chemicals that you're S buying and that you're using? 6 A If X ask for the right yes* sir. 7 Q All right. Then it's a conditional right? You have 8 the right to know only if you ask the question is that correct , 9 sir? . 10 A If that's the way you want to state it yes sir. 11 Q It's not the way I want to state it. Is it correct 12 sir that you believe the right exists only if you ask the 13 question? ^ - . 4' .. . , 1 `r' * t 14 A The right exists if it represents an `eminent hazard 15 also. ' l . .\- 16 Q That's another question sir. Aside from whether Ii . ' ,r t\ * 17 or not it's a hazard or not a hazard do you believe that you 18 have the right to know what's in the chemicals that you're 19 buying from a given source? 20 A Yes0 if X ask for it. yes sir. 21 Q Then it's still a conditional right. 22 A Yeah, 23 Q If you don't ask for it. then you don't have the 24 right to know if X understand you correctly? 1 A I have eh* right to know if the chemicals that I'm 2 buying, the food I eat# if it represents an .eminent hazard or 3 potential health to me, to my employee, to the consumers -- 4 excuse m I have the fight to know chat also# sir# but to 5 sit there and ask for every little impurity in a product, what 6 have you, I don't know if 1, you know, have to -- I don't 7 think I want to b that hyper in this society. 8 Q I'm not asking you whether or not you want to be that 9 hyper. I'm simply asking you whether or not you believe you 10 have a right, even though you may not ever use that right and 11 may believe that it's foolish to use that right, I #m just asking 12 whether or hot you believe that you have the right to know? ,* , J i _ ,\ i* 1 | ' 13 A I have the right to know -- 14 '" '' - ' : J" NR. MUSGRAVE: \ Object, ;ehls has been asked and 15 answered several times. . 16 ^ f ' i j- 1 ,! Q All-right. Then you do believe -- 17 A X don't know how many times I've got to answer that. 18 Q Yes, but now you're saying it differently. You have 19 the right to know -- 20 A I have the right to know if I ask for it, yes, sir. 21 Q So -- 22 A You interrupted me. 23 Q Bo you believe you have the right to know if the 1 24 seller has the knowledge that's in it and that teller knows I that if you knew that dioxin was in it that you would than 2 decide not to buy that product* do you beHave that the custom* 3 has the right to know under those circumstances? 4 A No* sir, X don't* 5 Q All right* 6 A Cause that the judgment we made. 7 Q Whet you're saying then is that -- 8 A. It's not a question of right. 9 Q -- you and you at Konaanto have the right to decide 10 11 A You're asking me my opinion and X gave you my answer 12 to my opinion. I'm not -* you know, X represent -- X work 13 for Monsanto:,, but you might, ask. that question of somebody else 14 IS Q O h / 1 `have aeked lt of others, Mr. McPhillips, as I'm 16 asking it of you, and I'm just trying to find out if there is 17 a variance between what you say and what Dr. Wilson says and 18 Dr. Rousch or Dr. Paget or if you're all saying the same thing. 19 And is your belief that a customer, what they don't know won't 20 hurt them? , 21 MR, MUSGRAVE: Object to that, that's not what the 22 witness has said. . 23 Q I'm asking, is that correct, sir? 24 THE COURT: Objection is overruled. 1 A ,X didn't say that, sir. 2 Q All right, Than they have to know nough about th *" * " 3 product then to be able to design a question to ask whether or 4 hot there are dioxins in it, ie that correct, sir, before they 5 -- before they have the right to know? ,v .6' A No, sir. If we felt they represented it an eminent 7 hasard to the customer," X assure you/sir, we would immediately 8 tall the customer that. 9 Q But, Mr. McPhlllips, that's not what I'm asking you. 10 You understand in. this,-.memo;vof March 19th, you recognized that 11 some customers would not buy your Santophen even though in your 12 Judgment it doesn !t; prsent^any%health hazard That *e recognisc 13 by Monsanto, isn'e it, sir? 14 A That was potential threat in my opinion, I think IS Don Edwards agreed to that in that memo, yes, sir. 16 Q All right. What X'm saying then, that this -- you 17 " , s '/ p , 1 i acknowledge that some customers .would buy it even if it's got 18 dioxin in it, and you know that. 19 ,A Yes, sir. .. ; 20 Q And so your solution or is it -* you consider an . ,21 appropriate solution -? if you know that I'm not going to buy 22 a retreaded tire, then I'm a person that I'm Just against 23 retreaded tires, but you know as a manufacturer, a parson that* 24 retreads that, that it's a good safe carcass and that the tread T was put on right and,you've got it painted real good so that it doesn't show that it1a retreaded, if X come in there and buy that tire and you know that I won't buy the. tire if you tell iae/ *' /t y ' >. r Z * " <t '^ it's a retread; do you consider that you under those circumstanc have the right to keep frornme the information that it's a retread? ' , ,'-/' ;.- A That particular base you just'talked to ,iae? Q Yes.-- : 'V _ .A . I don't know.; X guess if, I/walk in as:a consumer, ,I*d ask some questions. / * / ..,-' ;/ Q But rassume you dldn11, ask the questions . You1re going in. there *.-- *; r - * L` .; v A IwouXd ask J-r you1d ask me-what i would do and.Ifd ask sme questions./ ^ v/ `r ,*./ Y / " - Q -* it looks like .a hew tire, it's painted like, a new tire, but you,; the seller pfit; you know it's a retread, and you do know/that sme people won't drive a retread tire oruse one, you know that,, don't you, sir?, * .A . ; I think iti those, particular cases there's a law that /re'q7u' ires i. ^t^^Vh - Y*' ;,,'1 .* r~ -**V<*"*.,, vJ j"i,,/`~-/..r.Y^ Y' ^- .T.*I" ;J ' ." . r , v ,*'J L . f. /* rYL ,-Y-Q . ..Excuse me. Do you not know, Mry.Phillips* that som people won't put on their car a retreaded tire? Even though ) they're a third^of .thQ/price .of new tiras and may be Just as good, you kno^`that^Jdoh^t>you, sir?-/V/ 1'* #? ** } >' ,J 'K'Vt: - \>r'1 v,,// 7 . 1 -^ `l;-;/ i' 1 A That's a possibility, sir. 2 Q Well as the sellar of those tires, do you think that 3 the customer has the right to know that you're selling him a 4 tire, a retreaded tire? 5 A The customer has the right? X think there's laws 6 that probably require him to do that. 7 Q Aside from the laws, Hr. McPhillips, I'm asking you 8 aside from the ;laws, db you chink the customer has the right to 9 know ahdthatyou have th obligation to tell him that that's 10 a retreaded tire aside from the law? 1 . V ..:' 1. 11 A If you're talking about the tire, I guess it would be 12. a tiro. You tell me.a'car,.put it on a car and X disagree with 13 you about a car, because half the time we all buy used cars and 14 they're lemons. 15 Q Hr. McPhillips, could you confine your answers to the 16 questions, i 17 A The question regarding your tire, I guess you have th< 18 right to know about a retreaded tire. 19 Q There's no question in your mind that he would have 20 the fight to know that that's not a new tire, chat that's a 21 retreaded tire? 22 A Well, X think If it's a third the price -- 23 Q Excuse me, there is no question in your mind about 24 that, Is there, Mr. McPhillips? 1 A Yes Chare i s . 2 Q Thera is a que4sti" on in your mind? 3 A X would think if it's one third the prie* of a rgula^ 4 tire, X think you would have to 'start asking soma questions, 5 and I think that was the example you gave me, that it was on* 6 third the priced 7 Q Woe,I didn't say that . ^ ,j, r , I. ! " ' 11 ' " if ' - Vr ' >: t\ ' 8 A r of .a normal. tirev . 1 ^ 9 Q X didn't rJ sta. yJ/" -MrV.,*., McPhi`Illips, that you war* selling 'ff t ` .-::; \ ` -,- , 10 the tire at that time for on* third the price. didn't suggest; 11 that at all You're .sailing it for .the price that you would 12 got for any tire. I didn't suggest that* 13 A Okay* 14 Q The customer thinks he's getting a tire that isn't 15 retreaded and you know that he is getting a tire 16 A If he gave me the earns warranties of a -- 17 Q Excuse me* Do you have the right to know that it's 18 a retreaded tire? 19 . HR. HUSGRAVE i It's been asked and answered, your 20 Honor. v 21 THE COURTt X don't think so from that last answer. 22 Overruled. ." 23 A Would you ask the question again? 24 Q Simply does the customer have the right to know that r. ' i,,s ` m* i ` . j 1 r t~ -- - 1' 110 1 ` 4 1 *f j `L * ' ' .1 he's buying a retreaded tire? * 1j "2 - A Th way you're asking,'mo th question, .yes, sir. 3_ , Q ' Is `there any circumstances under which hewould not 1J * V *' * , ^ " *L , 4 -| have the;right to know that he's buying a retreaded tire? ' - .. r1 t T * ' ' * * ' 5 A I don't know if it's a question of right, sir. 6 7 Q ..N-'o' I,''ft| 1mi1yj>,rqvu.JeVs'tii "oi n-fil1-i,&*,-qj*if, v'>r- iii"7gi hJ.tj`i'^^^'JG-'ir0 Is.there any question invyour mind but .under all circunmstances that you can 8 think of a customer coming .into a tirc shop has got the right ; \ jh *cl fr-* '' . 9. .. V.-J "N ':Vr; f ' - V . '. ' .* - ' to know whetheriov not ha'abuying a retreaded tire?. 10 . MR. MUSGRAVE; Object to this line of questioning, "y-.;':j ' {, *V*i'r-;'vl ''*-/ ^ > v.'-i ? ' . .J*.r, 11 your Honor,; It's calling for speculation and conjecture as to, 12 , any set of eircumstehees, some imaginary person might not have 13 the right to know and this could go on forever, ad Infinitum 14 ; as to potential circumstances. This Is pure speculation and IS*1 conjecture, beyond the coospetency. of any witness to testify to. \ 16 '' ^ COURTr Objection is overruled. It* s a proper 17 . analogy and a view of the area that this witness is in, it's a 18 proper question. ; \, 19 A ; I guess you're asking m question -- I don't . 20 , . know if I have to .have ;th right every time that it* s a retread) '21 ' tire, air ^ ' / 'j.' 22 Q All r i g h t . ; / ' W h a t ' : 23 - A Because I think there's some cases probably somewhere, 24 somehow, I can .chink about It long enough ;! can up with a case . <* F O R * i'll. ; ,1 4 B 07001 PE N G D 'C O .. B A Y O N N E . 1 where you don't need the right. 2 Q Think about it please, and if you can think of a 3 single episode where the customer does not have the right to 4 know that he's buying a retreaded tire, please tell ine of tho 5 circumstances. 6 A Sir, I can't think of one. 7 Q Well, think as much as you can. 8 A If the product has th seme warranty or warranties 9 that satisfy m, e. and, 't`hie,,4 pr. i*ce^i`s. r-li,ght and I -- end the werrai 10 satisfies my needs of what I went to do,then it's my responsi 11 bility, It's my money* He's just selling It to me, X mean, 12 that's the case es far as I'm concerned* Xmean, if he's giving 13 me the warranty to satisfy me and the priceis correct, I'll 14 buy the tire* X mean, I don't care if it's retreaded or not. 15 Q Ho, X didn't ask you that, sir. X just asked you -- 16 A Well, you gave me a case whero X don't think X need 17 the right and there's a case X say X don't need the right. 18 Q I asked you whether there's any circumstance under 19 which you believe Che customer would noe beve the right to know 20 that he's buying a retreaded tire? 21 A And X gave you that case, sir* 22 Q And what is that circumstance? 23 A I just gave it to you, sir* ?4 Q What is it? 1 A If I walked into a -- 2 Q No, no, you're adding if I walked in but I'm talking 3 about a customer now. 4 A l*m a customer. You're asking me if X was a customer 5 J , ,1 .j,. v 6 Q Mr.McPhillipo, could you just limit your answers to 7 r * 1* \\ '1 ';* *** what I'm asklrigyou. .. .>V J . 'V r* 8 A I'm trying to* sir* really. 9 Q Is there any circumstances under which a customer 10 would not have the right to know that he's buying a retreaded 11 tire? 12 A And I'm telling you in the case personally* if you're 13 asking me my opinion ~~ 14 Q No* I 'm asking you your opinion whether there's any 15 circumstance under which a customer* a third parson coming into 16 the store. You're the tire dealer. 17 A I just described a case where I think ha has a legiti 18 mate right. 19 Q tfell* I understand ha,has a legitimate right. I'm 20 asking you where in your.mind he does not have the right to kno* 21 A I can't think of any right now* Mr. Carr* I'm sorry. 22 Q Mow, Mr. McPhillips* the customers* your customers* 23 would they '-- 24 A They're Monsanto's customers. I Q Would they have tha right to know that your product 2 has comathing in it that they might consider to be unsafe even 3 though you know, like the retreaded tires, it's a perfectly 4 jt r t 'j good tire? iDo you think; that --- j, 5* A No, sir. -- ,, , (\ i 6 Q They don't have the same right that the customer of 7 a retreaded tire has? 8 A I didn't agr with you about the retreadod tire 9 customer. 10 Q 1 thought you did. Let's back up. 1 thought sure 11 that you said that you couldn't think of a single circumstance 12 13 A I gave you a case, sir; I gave you a case where .a 14 person who walks in fully understands the warranties and every 15 thing else. If they're satisfactory, why does he have to know 16 they're retreaded? 17 Q No, you're asking me a question, but I'm asking you 18 the question, Mr. McPhlllips. 19 A I'm telling you there's a case -- 20 THE COURTi Hr. HcPhlllips, you're not answering the 21 questions. You're not -- you're not asking the questions. 22 THE WITNESS: Honest to Cod, I'm trying to. 23 h- THE COURTi Mr. McPhlllipo, don't talk while I'm 24 talking. It makes It sort of rough for you to hear, and 1 want f 4' 114 f ,, < ni>, I, 1 yu to hearwhat I 'm saying. You're not asking the questions, A ,^ 3 4 ! v' 5 you|re answering th questions. Two things will help. Humber ' j'm ^ S ^i ; I ~~ _ ( one, if you^quitinterruptinghhe attorney when he's asking you . ` ' <j,;ft ; ' f,A ^ ? l the questionsV ahdhumber two, when you listen to the questions -> * Ar - answer that question ahd that question only* and X think it 6 ' -7 . ,8 ` - r* 9' . io zdight improve things, because so far you erea5t doing either , ^ ;. fy*;> t - ^ ^ & /i ,'-- J. . one/and I'm:ordering'yputodoconow. You.may proceed, Mr. o_ - - j . r* Carr.. 'O ' ,, / V '- ,.*' Q Mr. Mf&hililps, is what you|ra saying thatfyou believe if you,' the dealer. If yon give that customer a new tire warranty, 11*\ that he doesn*t then need,to know that ha *s not buying a new -*'12' tire, that ha's.buying a retreaded tire? Is, that what you're a r i t i :h b o j 13 /r - 14 15 16, :,.17\ .1 8 saying, eir^V'i* '* \V. '*' /' > A That's a good example, sir, . `v Q So when you go in to buy a new tire,, you consider it - -- or when anybody goes in to a .tire store to'buy a new tire, It's perfectly proper, in your judgment for that dealer to sell, him .a tire that is a retread even though he thinks he's getting io o o Y n `3 n h o a b ` -l-9v a new tiro? fDid X interpret your statement correctly? 20 A. Thae's potentially the statement, yao, sir. . 21. Q All right. And now do you know whether or not that - " < 22 belief of yours is shared by others that have responsibility or .23 bed responsibility in the*customer relationship of Monsanto 24 insofar as the chlorinated phenols were concerned? ' '\ < ' ' 115 1I . -r 4. ' A_ -" P ' -1 As it relates tothe chlorophenols, 1 think ell of us .;2 at the time;:came co ;the oame conclusion that we went with, sir. *% '; y^\Aj ?;v .;? ^ 3 V . Q , Well, Mr* P h i l l i p s ,.that isn't answering the question t- *` 4 that X asked you." I asked you whether or. not -- h v; C jV '' '; rfir- .**7 . J. 5. A - ,Sir,, JXS-* d'*'*o"7nr 'f*t^ kn'oriw;r%--Itji you,have ' 't>er -- ' , .r ` 6 Q Could ydu* please wait until I ask .the question, sir. 7 I'm asking you whether or not the bolief that you have just 8' stated about the ciistomer not having the tight to know.that he'di - : 9 * buying a retread when you give him a .new tire warranty,. I'm 10- asking you Whether or nob that belief that you have just stated 11 Is shared.,by others to your knowledge in the at I&ms&nto y "I2; that deal with selling chlorinated phenols to customers? 13 ~ A No, sir, X don't know. 14 Q > All right What you have stated then as far as you" 15 16.. 17 18 ; 19 20:, 21 > 22 know is, jx^t your beliaf? \ t A /^'regards to;tlie tire, yas, sir. - i'( 1,, Q Wall, and is it also your belief then with regard to Santopheh, it ie your belief that even though the customer won1 buy your Santophen if he. knows there's, any dioxin in it, it is * <' your belief .that you canjSell him that Santophen without telling ^ - him i(, that di>o-xt i'n' ' is in it? _ . -, mkr r * 1i v J J* * ^ ' 'r -l " I * *"r *" _ P A .Sir, there is.only .dioxin . %^k \ --V ' f* ''* ,,- J 23 ' 24 ; Q Excuse me^ cotiLdyou .answer that question* A ^he way you phrased that question -- the way you PENGAD CO., BAYONNE. N.J. . 07002. FORM [L, 24 B * - ,, \k ;"-V - *. j r* * *, 116 ''r . ;; V' / /' ` 'V 4 -t? '[ n. I phraoedthe/quastion-I ;guesaT havet answer no, they don't r^i i*;'/:V-: J'/ C `V . .. 2 have tha^ight'^'-'.^V^' V:'` j' 3 Q j All ;right* And if:you (tbld1tham: that It had it in it 4 they would immediately quit using the product and therefore 5 ' you did not tall tham.^ian't ^that -cornet, sir? 6 -.A'' Koi sir. ' \. -*ly ; .7.- 8 . - Q Weil let' see* / 'y'V\ A . That's not the reason why we didn't tell them no -9 ; sir*. v _ ,, 1 -- * * ', ' '. 10 Q -Well let's sea'that* sir* Let'is explore that. . ' - i- ^ i * * T wT , _r *' 11 HR..CAKRt Would, you give the witness Plaintiffs * ,, 12' Exhibit 1247. ' . ' v r. /' *' ;'! / 13 (At this time Plaintiffs* Exhibits 1247A, B and C .14 . t* '- r -- .W were marked,forridentification;) 15 .Q Now Mr* McPhillips, you have in front of you 16 / i;'J"- MR,.;.CARR:. Qh, your [Honor * t; li Q Well,, do you recognize ./1247A, By and C as blowups of 18 the memo 1247? BAYONNE,* H J, 19 - -A `J/ Yes, sir*. v , ," ' ' ' . ; ^ 20 ; T 1 ifr ^ 21 ' MR. , CARR* )r ,, Ofrft er I247f AY , * B,. and V C, your ^ Honor ^ / ` ^f ^ ^ J '^ ^ J ^ HR, MUSGRAVE: Object tolit to the extant that'it -22 deals with products other than orchochlorophenol-crude as being 23 irrelevant and immaterial, , I'd also object to it, in point of> 24 . time being after the spill and as to the issues contained >, - v' A. 1 therein no probative value whan weighed against other consider 2 ations . 3 THE COURT: It's overruled. All three are admitted 4 over objection. 5 HR. MUSGRAVE; Could you tell me what the -- 6 MR. CARR: It's the three pages -- 7 MR. MUSGRAVE: What Pages A, B, and C is? Yeah, I 8 understand that, but what page -- 9 MR. CARR: In chronological order. 10 MR. MUSGRAVE: Chronological order, A, B, and C? 11 MR. CARR: Yes. 12 Q Now, Mr. McPhlllips, do you recognize that, of course, 13 as a memo written by you, although on the copy that I have 14 your signature has not been reproduced? 15 A Yes, sir. 16 Q Is it on theoriginal? 17 A Yes, sir. 18 Q All right. My copy machine apparently cut it off. 19 And you do recognize that as your memo? 20 A Yes, sir. 21 Q Now, to put it in proper perspective, there was a 22 memo written by Mr. Wilson in which he pointed out on April the 23 10th, *79 that there were dioxins found in your chlorophenols. 24 Do you recall that, sir? The memo has been introduced into t 1 evidence. I'm just asking, -- r , > " i' 2 A X recall the gist: 'of-the.April 10th meeting April 3 10th memo yest# sir;.-. A 'i, 1 f ,"' v :.";i i 4 Q And you mak -- 5 A It talks about inconclusive- findings 6 Q X9 sorry# sir? .7 A The tentative findings in the ,-- that's one -- 8 one of the purposes# sir# if X can explain - 9 Q Excue me# Hr McPhillipe. You're volunteering state 10 ments that are beyond my questions* I'm sure counsel has told 11 you to limit your answer to what I'm asking so we don't have 12 to. go into the volunteered statement. 13 A Okay* 14 Q My question simply was that Wilson read a memo in 15 April of 179 in which, h stated that there had been dioxins 1 6 found in your chlorophenols# is that correct# sir? 17 A Yes#, sir. r 1 8 Q And there were other samples sent to Dayton for 1 9 analysis That's pointed out here jv 20 A Yes# sir. 21 Q And# of course# we have those ocher results of these 22 other samples in evidence# but one thing that you mentioned 23 here is that these analyses are in conflict with earlier dioxin 24 teats made insofar as Santophen-1 is concerned, correct# sir? - 't;IS- S';: *:'iA-"--r?>-*'f '! h-;V-a iv>.-'fi., .-1/., i.vV /:'`l iv >*'*,,' v ` ;-V r'- ^ ' 1 -, - 4 A: *>- Vl*!*kI-`-S."! i A Repeat the quetlon again/ sir* -4 Vf V\iVt.Il 119 2 Q. Yo' 7u .*po*: i'nvt:i > * >out: . \ J r y.,4- ; pthe bottom '-* k* \ *& '< < ' of, this first ,-- 3 A Yes, air. You're talking about the bottom, I'm sorry 4 I was still looking under: the purpossof the meeting, I'm 5, sorry. . ,'-.1 '. . ; 6 Q , You point out at the bottom of the page that thefirs^ 7 results showed that there were M Z|3,7t0.7CDD isomers in the 8 Santophen although there were .25;parts per million of the cono, 9 J di, and ttichlorodibenzos; dont you, air? ii 10 A- That's what instates; yes, sir. ,, * , - r- * ,, ' 'i ir Q -Now, at that point in time, .Mr, McPhillips # were you 12 personally aware of the' fact that the trichlrodibenso-p-dioxinij 13 , are At least one of the isomers of that is considered to be 14.' very txicfv ;J i*J ' r - s i ', - r , ,* ' <j 15 A J Siri I don't recall. ' ," 'L 16 p Q All right. The second page point out, doesn't it, F O N IL 24 B 'P E N G A D CO.-. B A Y O N N E . n IJ . 'O Y O O l 17v sir, that in the 2,4 DCP you found 200 perta per billion of the 18- ' TCDD isomer,^ of something that could be the TCDD Isomer? 19 A /Yes, sir, that's what it states. 20 Q ; And you recognise that th r100 parts per billion for 21 the 2,4,5 T is.exceeded by the findings on the 2,4 dichlorophenc 1, ,22 ' do you not, -sir? ,; A t _ Yee^-Sir;" '"v ^r .. . - " 24 Q . And you also,.recognize that they're going to eliminata i 1 the caustic to see if that helps? 2 A Yeah down below, yes sir 3 Q Now, there * -- as far as you were concerned, -1 4 there were two very important marketing concerns that these 5. findings brought to the surface, isn't that correct Hr, 6 McPhillips? 7 A Findings, sir? 8 Q Yes, those findings, 9 A There were two marketing concerns, yes, sir 10 Q That came to light because of the findings set out 11 in Dr, Wilson's memo of April 10th, 1979, that la, that there 12 wore dioxins in the chXorophcnols? 13 A The two marketing concerns, sir, \was the question 14 asked by my management* 15. Q Hr, HcPhillipa, you're not listening to my question 16 wy question is these two concerns arose because of the findings 17 of April the 10th, *79, isn't that correct, sir? 18 A It is prompted by the memo, yes, sir, in 1979 19 Q Now, one of these concerns dealt with Santeophen and 20 the other dealt with 2,4, dichlorophenol, isn't that correct, 21 air? 22 A Yes, sir, 23 Q Insofar as Ssntophen is concerned. Lane and Fink, 24 they buy something like 24 or at that time they were buying 24 r-...Fr1*/vA\'; /y;> -1 /* ,uy. ' "`' '/r'/-">$r?:} W.,) -\:^ . i '' -1 '*. ~,S ^ ^ >r.Ju ^ ' ,J L- - r V W J - ^ ,121. '! v * i ; -, <.*>.<.* . .> y-it 'S h t< f. " 'J* C I ` ^ * r ~i ., ,r- , \ ,'-. r> * 1 percent of yor Santophen- output more or less,,were they not, 2 sir? ; *. /.y ' t/y 'y. 3 A I don't think it was that high, sir* . i4 Q I have a memo that says it was, and we'll get to that I , 5 In' a moment, t '1 i.', - y J /v* .^ -:r_. * V .y-" 6 r A That's fine* I agree with you if you've got a memo; 7 '. Q sir? r, " / - : .y'-: ' --'y 8 ^ '-..`/A-'. -It's been ,six/ seven years. 9. .10 - Q All right* ^ _ ;p ,, V . "" v that much or hot. It's not that important whether it is^ ^. A^ 1* , y - MV ,, ,, f * - * - ' . /" - , ' Vv .'yV-v.:> ' ; ri*> A W6rld wide, you 'ro.probably right * 12 Q Ail right* And Lane and ..Fink is -- you already ' .. " >- ' ^ . V. , '-r. ,i L ,* . F" 13 -pointed out before that\they9re concerned about the environment 14 ` and iseuoson xhe phonolics, isn't that right? ; 15 A. Environment issue of the phenolics, yea, sir. 16 q yves.y - ; -y*\ - /- - v/ - ; O'' . 17 A Pirl. : y-y-- ^ 1 . ;' ' ,j 18 Q .That's correct, sir.- " 19 . , " 20 .A Yes; sir* <- y - ;- , ,i ,y.; \- ^ Q And you say heri that everybody in the, meeting agreed 21 that if there are any detectable dioxins in Sntpphen*l, once, 22' we notified Lane and Fink they would discontinue the use of 23 Santophen almost imniediatQiy in Lysol Deodrant deiner. .24 A That was our .'belief based on the circumstances at the PENGAD CO., BAYONNE;' N.J, r,JY*** r. r-rX.:^  "" . ,:'',a.j.*'jv -;/ ,,-1uVfiVA>-^,1 n^i.r*- lir5^- i,`-\Jhr* <t*{!-!P--'',-\*"\,v./'.`j/\i.L<-t.if\rIr",-f>---.'..'"-tiV->'-i-.'VfO<;*`.V-'-' /-jj_r . _ . ;'. .Vi* ` -'v.\-/ '',rfV ; : _ ' - i/",h . r-I ;KU $ v -:vu ' _',r , t.' ..` . l-$?;i '* 1, time, yes, sir, - V f - `2'/ Q And yuknewthat the people, at Lane and Fink would 3 - do that based upon the relationship that you had with the /- '4 markstingor buying people -at Lane.Ghd Fink, isn't that correct J5. air? " / "-V.'*.'- \ *' 6 A . It vaa on .the basis of .the overall relationship and *'7.,' problems we had at the account in .terms of the performance of 8 the formulation that we had with Lana ,and Fink/ yes, sir,-so :9l- it was not just the buying department/; but research other io -disciplines*/ V / ; v' 11 , Q All right There was other baae material that they .`.12 could buy which did not contain dioxin? . ` 13 ' Well, sir ` ^ ' ; ,- , 14 * / 15 Q 1 \A. Isn't that corrects; sir? , , > j* '- t ,* 4 The. Santophen sir, X don't-know.that, r 16 - know what quts had, sir, v <' -J ' I don't - ,` \i -v . *Q Sir? ,/ /'*. ' ! .' ` , '* .. .; / 18 :, J A I don't know if the other products have dioxin in r- T ' * 1 4 > j 1 * ; ^ 19 them or not, psir, ' 'L ' , - S *F -, J - :2 Q Well, you know they, were considering using quats -- 21 A They, were using quats. r ^ "22;^ Q iMatter of fact, they were using quats? :; 23 '' 24 A Yes, sir. ,,Q^ Is^n't thr^at coj'rrhe1ct'? ^ * p "`. PENGAB CO.. Bil'fONNE, ,N.J. OTODl FORM II, M I d'JV-\ 'i r 'Vb t . 'V 1. . . ;v - V -i 1/ 123 i.ft .1 2;.3 ' A Yes, .airy ,Q . And" thatVs`RpC ;a-chlorinated'phenol, is it, sir? A ' No,v sir,, _ v -. f 4 Q And yo.u have absolutely no knowledge that any quat 5 ever had anything close to dioxin in it, isn't that correct,.: ' 6 sir? '' ^ ' ;; 7 ' A I;would not know, . s i r , ' v.'V .. ^ 8 * 9- ' 10-: Q Isn't that correct what I, said to you, sir? V A I.idon't know ,: s i r . 71I re a lly don't know w hat -- in f a c t , I c a n '.t r e c a l l w hat - - i t does n o t have a c h lo ro p h e n o l, 11 . ; ]12 , 13 J 14 ' 15 ,sir. To answer your question it "does not have a chlorophenol, - - " ' kV .. ^ ik v * ' k. ^ r ^ ^" L" *- r I* '' Q .. / No, that,isn*t tny question. 'My question is you have v\ tr ^ i ' * *. ~ - absolutely no knowledge^that the quats contain anything, any d io x in w h.a tso e v e`vr, i s n 'tA,t;;h-a t'.cVo/r r/e.cV.t , s i r ? ' . v, .-*V ft r ' ` . + "1 , A I have no knowledge, yes, sir. r7 \ . 16'' : .Q All right. And/ so you, point out here, and matter o n fact, everybpdy;katf that/mee/tingrfrom Edwards'down through Wilioh 1-. " -i / ''r ]"*i >*''.7,,'/ ^i '' 18. about 15 of/you; >>. . T 'triysorry was six -- 19 ' A vYosr, *sir. , >Tv'>v : y /v. : y* V. J-/> -,\P '^V..v; .} w. . . - 7 - : 20 Q And another 10another half a dozen or so got copies 21 of your m1 VemoV;^Wbudv.. all I^ si`*xy;-okfV,i yo.u,v;.Killer, Wilson a Homan, Ed, w erdb, 22 v and Metcalf and McPhllllps, It was.a unanimous agreement et 23 7 that point In time that if Lane and Fink learned'that there's 24 any detectable dioxins in Santopheh, they're not going to use .FENGAD C0,, BAYONNE.' H .J. 1 it? 2 A That was our belief, sir, yes, sir. 3 Q And, of course,, you didn't notify Lane and Fink that 4 there were any detectable dioxins in Santophen, did you, sir? 5 A Sir, at that time -- 6 Q Excuse me, my question is specific and it's simple, 7 Mr. McPhillips. 8 A Vie did not notify Lane and Fink. 9 Q Now, you also.discussed then whether or not you shoult 10 notify them now, that is, on April the 18th or wait until mid- 11 May, didn't you, sir? 12 A That's what it states there, sir, yes, sir. 13 Q And you decided you wanted to wait until mid-May to 14 see whether or not the dioxins were produced whan you quit 15 using caustic, didn't you, sir? 16 A That was one of the reasons, yes,, sir, 17 Q Well, was there any other reason that you decided not 18 to notify Lane and Fink at this time? ' t t) r 19 A Yes, sir. Mr. Wilson's memo, if I recall, on April 20 10th, it's been a while, but when we analyzed the Santophen 21 for dioxins, we got, from what I understand or what was told, 22 there was some very interrupted inconsistencies in the data 23 where, where the same sample was nondetectable and some were 24. detectable, and our .'research people came and said, hey, we are ' J-- -. - <' '' , i,>; 125 1 2. , 3 J' 4 very -- we *re. not too sure this analytical method we have is V - J'r ,f - ' . 1 really a correct method, and we've got' to, refine it a little bit to make sure that indeed there are dioxins. There are blip? #" r - ^F " - / 1 *,,r to indicate that there might be* but yet there's data that showii :*a : ' 5' 6 7 there might not be,/and they went on about a twelve month study - J \j , , ,1 " to try to develop a method to determine if there is dioxins or to, determine how to find'dioxins in products like Santophen. - 8 Q ..What was j /your, thought then that these results '-f V* 10 :\ 11 . 12 ,13 \ 14.. might not be correct and that perhaps there are no dioxins in Santophen, is that it/ sir? , , A 7 Sir, you got to ask Jim Wilson , 1 ,- Q J Excuse me,..is that it, sir?. ." r J _T * > * 1 i J - 1 1h- f* J* % * ' *' ' t ' TT' ' ' i J K r ' A . Thhfc was. a potential, yes, sir.- ^ , "'] I Q Then i take it then that you decided you've got to , IS wait until.it's confirmed that there are dioxins in Santophen, ** , \ s " - r '16 isn't thet correct, sir?/ ' - r " .. 1 * '/ 17 A Yes,, sir. > : . v ' Q All right; And 'you're talking here about dioxins, - 18 19 you're not talking about ,3,7,8 TCDD, are you, air? You're 20 talking about dioxins? , 21 A r. We.were primarily talking at the time, sir, I think ' 22 :A 24L of the tetrachlorb >-- the, 2,3,7,8 tetra, primarily the tetras - ;-**% _r\.v. -V*/v,'i7';*r", ^\ 7 ' , Q Excuse .mOv you're -talking in;this memo Just about \" -y > ' - _ ' you're talking 'about: all dioxins^:in'this memo, aren't you, sir? . hyJ.''--V V -7-"; i'7v X\r 77 *' . i-H y*v n :7 7V 7 i "^.7 'i i *, BAYO N N E, N ,J , 0 7 0 0 2 1 A I mentioned that there were other dioxins in there, 2 but the primary concern, I think, was the tetras. 3 Q Mr. McPhillips -- 4 A Yes, sir. 5 Q My question is specific* You are in this memo under 6 Lane and Fink under Santophen-1 you are talking about all dioxii 7 aren't you, sir? 8 A I'm talking about mono, di, and tri and tetras, sir. 9 That's what it states here, sir. All dioxins is a very -- 10 I think very broad, because there's a lot of dioxins. I don't 11 know how many, but from what I understand there's a lot of them 12 a lot of types. 13 Q If you could direct your attention to the -- and 14 that's to be sure you're -- that's mentioned on Santophen-1 15 that there is no 2,3,7,8 TCDD in Santophen-1, and that there 16 are 25 parts per million mono, dl, and tri, but over on the 17 second page you're talking about dioxins, aren't you, sir? 18 A That's what the letter states, sir -- 19 Q Yes. 20 A -- but I think I'm inferring tetras. 21 Q Where do you say tetras in that memo, sir? 22 A Sir, I say tetras throughout the memo, because the 23 primary concern was the tetras. 24 Q Where do you say that -- 1 A TCDD, 2 Q No , excuse zu, Where do you say that Lane and Fink 3 will quit using it only if there.is detectable 2,3,7,3 TCDD in 4 Santophan-1? They, you say- -- 5 A 1 didn't state that in the memo, no, sir, 6 Q Sir? ` 7 A X did not state that in the memo. 8 Q You specifically say if there are any detectable 9 dioxins iii Santophen-1, they're going to discontinue using it, 1,0 don't you, sir? 11 A That's what I state there, 12 Q Yes, 13 A X don't know if I agree with that statement now, but 14 15 Q That's what you said then? 16 A Yes, sir,. 17 Q Now, you also made, the decision not to notify your 18 customers in the hospital disinfectant market, didn't you, sir? 19 A At the time,.yes, sir, 20 Q And again-you're talking about, and you say, if we 21 find any dioxins in Santophen iand you emphasize dioxins as all 22 inclusive there by putting^it in quotes, don't you, sir? \` , i r- * y *i 23 A Yes, that's what I put,;I put it in quotes, yes, sir, 24 Q And you say if any dioxins is found in the hospital r 1 disinfectant: that's based upon Santophen -- I'm sorry, if any 2 is found in Santophen, that this would lead to discontinuance 3 to the hospital disinfectant market, don't you, sir? 4 A Eventually, 5 KR, MUSGRAVEi It says eventually, Mr. Carr. 6 A That's what it states, yes, sir. 7 Q And again you decided not to notify your hospital 8 disinfectant customer of your Santophen findings, didn't you, 9 sir? W A The nonconclusive findings, yes, sir, we did not II notify them. 12 Q Of course, now, if they arc conclusive and you do 13 find dioxins, X take it from your answer there that you arc for 14 sure going to notify these customers, is that right, sir? 15 A No, sir. 16 Q Oh, well then, it really makes no difference then. X:: 17 these are tentative findings you're not going to notify your 18 customer. If you confirm these findings, you're not going to 19 notify your customers. Is that what you're saying, Mr. McPhiXXl 20 ' 't 5 1v" = f . ` .*.L / A If they do hot present an eminent hazard and we are 21 and at the same time we discontinue or no longer get the dioxinn 22 out of the product,* yas>x sir,, that is correct. 23 Q Then what you did here, you said we're not going to 24 notify theta yet, we got to await the test results of mid-May to 129 1 pee about the use of caustic, but actually what you ultimately o->r* '2 decided, because you did find" out that,eliminating caustic did 3 not eliminate all the dioxins, didn't you. Hr. McPhilllps? 4, MR. MUSGRAVE r, Object to the question as a multiple 5 question, 6 THE COURTi The objection is overruled. i-: A I think we eliminated the tetras, sir. ? 8 Q You didn't even eliminate the tatras, Mr. McPhilllps, V- "9" and I '1 i get/to that'in a moment, but what you decided there 10y . after you learned that the. caustic did not eliminate all the 11 : dioxins, you decided not. to notify the customers anyways didn't -- 1\ 2' d you, sir? 'L r ^ ' ,, Vr * - i J; ': * '7 . . A4 -- 13 A At that time, sir, yes, ^ 14 : . Q -You didn't ever 'notify the^customers of the dioxins 15 : in your Santophen product, did you, sir? 16 / A: Up"until 1980; noi air. W \ ^ 17 Q .You didn't notify them in 1980 cither, did you, sir? 18 A, Ho, sir, we notified the EPJU'^ : iv!'v.r'i ?t'v-v.r* 'j* .i *-,`i<r- - jwif-- 1. --1 19 Q No,:you notified the EPA that in.latest batches that -- '' r 'I ' r 20 ',,y,ou- cou'ld''noitV;!/de1t;e,ct anJy\r2,3,7,8 TCDDi., That's what you told the 21 \ _ &<_", i. * .. ' V / * * >i*, ,i .' EPA, Mr, McPhillips.7j>WverVhc;lnto,that.wit h M r , Wilson at 22 . great length; to point out.;that there; was a lot of batches after 23 /r'-'- -- -.1.it V i;y- i *Vf-c i iv J ,i ,,. - . * ^ April that he used as a cutoff date where there was 2,3,7, 8 TCD^, 24 and we'll get to that irl a moment. But what you did do after, FOBM IL M B PENCAD CO.... BJkTONNEv K .J. OTOOl 1 it wee confirmed, what you made a decision about was that you 2 were not going totell the people that make Lysol, and you're not going to tell the people that make the hospital disinfectant 3 that there's any dioxins in the product; you made that decisiont 4 S didn't you, sir? i 6 A In this letter at the time, yes, sir. Q And you made it after that, not just then, you made 7 8 it after that, Mr, McPhillips, as well, did you not, sir? A After we found that it -- we felt that it did not 9 10 present an eminent hazard to the product, yes, sir. 11 Q Yes, so what.you did you decided even after it was 12 confirmed that dioxin was there that you're not going to tell Lane and Fink, isn't that correct, sir? 13 14 A Up until that time when I was there, yes, sir, Q And as a matter of fact, the only time Lane and Fink 15 learned up to this date .that the Lysol that they were manu 16 facturing from your Santophen was this past, just this summer, 17 this very summer when they .learned of It because of documents 18 r j * i. *- r , 1 9 filed in this case,' isn't that correcti sir? 20 A I ;don*t kj now,",-si\r-', / } y 21 Q You don't know that, sir? 22 A No, I don't know that. 1 2 3 Q Did you ever get any -- have you ever had any 2 4 document whatsoever, any phone call memo whatsoever, any 1 dictated memo of any sort that indicates that Lane and Fink or 2 Sterling Drug was told chat it's possible that their Lysol that 3 they're sending into every home in the United States nearly, 4 that their Lysol contains dioxin? 5 MR. MUSGRAVE: Object to the question as posing facts 6 not in evidence and testimony of counsel, every home in the 7 United States. 8 MR. CARR: That is too strong, your Honor, because 9 I don't have that knowledge, and 1 will rephrase the question. 10 THE COURT: Fine. 11 Q Mr. McPhlllips, so far as you know there is no docuaen 12 no letter, no memo in existence where Monsanto ever notified 13 Lane and Fink that Santophen, which is used to manufacture 14 Lysol, which is sold throughout the United States and perhaps 15 through a part of the world as well contained dioxin, isn't 16 that correct, sir? 17 MR. MUSGRAVE: Object to counsel's use of the word 18 perhaps. If he doesn't know, then -19 THE COURT: Overruled. 20 MR. MUSGRAVE: -- then he can't use it. 21 A Sir, I am not aware of any memo, no. 22 Q And when you were making this memo of April the 18th 23 about going to notify the -- you're going to wait until mid24 May -- well, actually you made a decision there that you were 1* ; Ar ti32 ; i. going to notify Lane and Fink ,. but the question was are you .2* going to do it now or wait until mid-May, isn't that correct, 3 sir? .\ .- ; \ 4 A It was the position of the attendees to wait until .5 , the test results in mid-May, 6 Q The statement right before that, sir, isn't that ' ` kj Lj ` t ,. 7 right, sir?/- -' * -8 A The way you state that question, yes, sir, 9 Q So actually you were going to notify bane and Fink, 10- but then you changed your mind, about it,'is that right, sir? 11 ^ l ; .V -\, A Wo, sir,.that's, not correct, ' 12 Q Well, waan't fclie.question; as/you put; it^quote "The `,-: 13 question discus1 se* d in "trhie. -' 'mf>-e;ei.at1-if, nJg-*wVi as:;w/h;, e:i;t\ lhr-e\;fr-or''`n;ot we should 14 notify I# and F now or wait until mid-May" end of quote, 15 - A ,That was th question. 16 - Q That was the key question -- 17 ' . A ^ That was the question as amarketing person I asked 18 . of my research people, who included, in that'meeting -- or my 19 technical people, who included Mr,. Wilson, Dr, Wilson, Dr, 20 Homan, Don Edwards and Joe Metcalf, that thse are things that 21 X felt at the time I sat there and said gee, do we have to \22 notify the customers. That was the purpose of this meeting is 23 to ask them the. question of whether X havo to notify the 24 customers. It wasn't a question for.me to say I don't want to V' BAYONNE N J, 1 notify them* The question -- the purpose of this meeting was 2 hey, guys, do I have to notify the customers, to which my 3 technical people told me, hey, number one, the product, the 4 findings are vary tentative, we etill got to resolve the analye; 5 number one. Number two, even if they were in there at those 6 various levels, it did not pose any eminent hazard to the 7 product, and number three, we have reams of safety data on the 8 safety of the product that was registered with the EPA and at 9 that point in time we decided to sit back and wait to see what 10 the mid-Nay result, if the then analysis of the dioxins present 11 an eminent hazard and if it did present an eminent hazard, X 12 assure you, sir, X would write a letter or I would rccomnend 13 .we write a letter. 14 Q Hr. NcPhillipa,: of the.attendees of that meeting 15 there wasn't a single doctor nor a single toxicologist that t 16 attended that meeting, was there, sir? 17 A There was a Dr, Wilson, a Dr, Roman, 18 Q Dr, Wilson is a Doctor of Chemistry -- 19 A You said doctor: sir. 20 Q -- not an M.D., medical doctor, Nr. HcPhillips. 21 There was not a toxicologist nor was there a medical doctor 22 that attended that meeting, was there, sir? 23. A Sir, I don't recall what Dr. Roman's background was, 24' might be microbiology. i, ,134 ssv r. , . Q What you were discussing then, sir, was whether you ', 2 .. 3 -4 5 . .6 7i \ '* 9* 10 11 12 13 14 15. 16 17 - 18 19 were going to notify -- you knew that if you did tell them, they're going to quit using it. What, you were hoping is that your results in mid-Kay would allow you to send them a legiti mate letter saying, yes, we did detect dioxins in our Santophen but our later tests now in mid-May. show that we're not currently producing anything,with/detectable dioxins; that's what you were hoping, wasn't it, sir?- / A Kb, sir, I don't think I stated that. : Q No, air? Well, why- else would you want to wait until you get the resulte in mid-May o f . -- \ A Because the data - -- ' '/ Q \ Why even bring up the point? A Because the data that.was presented, if,I recall, the "V data that'was being prasented-washotveryccoonnccllusive Some . . . ^--i /' v-* `c V ' samples analyzed dioxin /level of, dioxin in it and some did. not . j". {..r,r ^ * from what i/understand, sir, ;and/at the time, they: were serious!^ questioning the methodology in terms of .how we analyzed the jf ' L / \ * - i - - * f v 1 > ; , 'f T^ ^ 4 ^ i: < f "s.^ : "h fL ^ Vi J dioxins in theFSantophen, The mid-Hay results were the tope "20 that they would find a better way to analyze it. In the mid - 21 from what I recall the Key result they came back and found out 22 that the test was not working very well, and at that point in 23 time. -- 'V .V" ' ,// . 24 Q Mr. iicPhillipa, where on earth did you hear that the 1;^ . - _ *.J`V rb^ : *> FORM IL 24 D 1 test wasn't working very well? Who told you that? 2 A They weren't very conclusive. They were getting into;: 3 ferences, sir. 4 Q Who told you that, sir? \ 5 A 1 don't recall. Probably Jim Wilson and Joe Metcalf. 6 Q Have you seen the exhibits that they've prepared? 7 A Exhibits? 8 Q Yes, the reports that they prepared showing the level) 9 of not Just dioxins but the 2,3,7,8? 10 A Well, sir -- 11 Q The tetras in this, sir? 12 A Sir, the 2,3,7,8, if X recall, at that time could not 13 be analysed. We could not be isomer specific, if X recall, air, 14 Q My question, Mr. McPhillips, have you not seen the 15 memo of October of *79, which they confirmed the presence of 16 the TCDB, and they're not even talking about total dioxins, 17 they're talking about the,TODD isomer. Have you not seen that 18 memo, sir, the analysis of October 15th, 19797 19 A Sir, I can't be; / 20 MR. MUSGRAVEi Mr. Carr, are we talking about October 21 now or back In May, which was what the question was referring t> 22 MR. CARR< Did you hear me say May or did you hear me 23 say October? 24 THE COURT: Go ahead, Mr* Carr. * \1 ,1 .,, MR. CARR: I sald^OctK>ber,v ./ MR. KUSGRAVE; But I don't know what relevance that has to the question that you'remaking, and 1 would object to . that, sir. . ;v -- / ^^ THE CQURT: . Objection is overruled. HR, CARR: Could you give the witness Exhibit 1285. -(Pause) Q Have you ever seen that before? A Sir X would not see memos like this probably, bacaus^ I -- one, I'm not technically oriented. . /^ Q Welli have you ever seen it before; sir? A .I've seen it* . In, recent weeks they've showed me a\ bunch -r F_* " J t Q They showed it to you in preparation for your testimony \T' ' ' ' c fr in this-case? _ A They showed m e `this stuff,yes, sir, Q And of course, you were .discussed and you have dis cussed how to handle-that particular .memo, didn't you, sir? MR. MUSGRAVE Object, to counsel referring to die- cueslone with other counsel,^ ^ . v L ^ THE COURT; , Objection susteined.O ^ * .- . .'-.1 1 - . .r..,,-oVi ' z \ i ` ,<*- Q Mr. McPhilllps, you see that that exhibit shows that 2,3,7,8 TCDD.et .al the i;3|6/8Vet?al,M:i&. 1.3>7i9 TCDD et al, don't you, sir? l J. * .r:'i.,; *$ 137 l\ A I see that;'- X" Q And the exhibit that you have is a three page exhibit 3 ; isn't it, .sir? ; -x ` -- 4 A * Yes, sir. ;L ^; 5 ` Q Now, you see also this exhibit * . 6 HR. CARR; Give him 1195 also would you please. '? ' (Pause) __ ... 8' Q Hr, McPhillips, you see in Hemoll95# which ie after 9 your April .18th memo, you eae there Santophen-1 dioxinalyeis? 10 r A Yes, sir, - ' -> - n Q ^ And do you.see that,they report here, sir, that they 12 the 35 and 65, that's 110 parts, per billion of TCDD isomer in 13 that Santophan, sir? 14 - h 15 A . 1 'see that in. one lot, yes, sir, - " S ,1 . .- '' k r ' 'L " Q 06.you see immediately above it they've got 4800, 16 : that's 4,800 parts per billion of trichlorodibenzo-p-dioxin in 17 ' it, in that lt? 18 A Does it state that; sir?. : 19 J Q Cap you add up the v. 20 A It looks like two different analyses, two different > / \ ' ' .,f' . y 21' 22 re`s' ult,,s, Q if I -- *K i- if you're asking ,* ^ me ^ for my --T- Vi`nV,t^erit pJr' etation<.1 ^ All right. I rthink^ypulra rights ;:f \ 23 ^ L, ' - ( '<w < ,/ * -f -r'. * " 1 T^ -v. j ,,--- v >-^ -, 7 >>*'* . f ' '' * - ' i A Looking at the differentials it shows, that their 24 ` > , . ili methodology 'probably wasn ' ,,y - 7 ,LV - v< >.) that*/great* ;u ;' u fi i f o b m il. h b b a y o n n e / 1n . j . otooz  .i i.\ f ;`* Q You are correct, and X shouldn't bo adding those two together. You. see. th 3,Q0 In the;one analysis of the tri and 1800 In another analysis of tri?. ! rA';`_.Yes, .sir,.'- ( ^ /- Q And this is information that somehow or other came to you in June of .1979? ' ' - , --^ A ' 'X don't know, sirv I wouldn't state that/ sir, Q It, has the date on It,.doesn't it, sir? A It has the date'but would I get this data? No,sir, ,`i probably would not*. : Q Thee .are th; results that you were waiting for in the mid-May results you' got -them in June; you see that sir? A .Monsanto got them sir; Q ; Yes.. - . " ;. - A. *' Yes. . ^ : 'T ~ ^ `" Q Mow, after you got these results that you said you're going to wait for, and it confirmed that there were 10,000 . or no, 14,000 r 19 or; 20000 parte per billion of dio&ins in your Santophan did you then discuss whether or not you're going to tell Lane and Fink these facts that's now been confirmed to you? v .. '; A . , I. (bn*t recall; it, me discussing it; sir, not me, X would not mali the decision whether we. notify the customer, sir Q Well,'.but you ,are part of it, you were .in'the -- 4i -y } ^ .; , S' r' ` }./*: _ i , 139. " -k z 1 A That was tfc April. XSthmaeting, yes, sir, .2 Q YV,; and you Ware in tha meeting where you said:let1a 3 wait until' we get the mid-May results,;you got the mid-May 4 results, the mid-May results confirmed the dioxins, but you mV 5 didn't tell the customer, and you see the October results con 6 firmed the dioxins, and they're .getting more specific here now 7 2,3,7,8 et .al, but you didn't tell the customer, did you, .sir? 8 A No, sir. ^, 9 t Q And later on.in January of 1980, I think it is, on 10 Exhibit 1286 you got. more confirmation of your Santophen result 11 MR, MUSGEAVEi .What's the exhibit number, Mr, Carr? 12 -MR'. CARR: .Could you give him Exhibit 1286 please. 13 , Q . The1date of that exhibit is what, Mr. KcPhillips? 14 A August 7th, 1980/. 15 ' Q And that August 7th of 1980 shows dioxin in your 16 Santophen, doesn't it, sir? -j 17 A Looks like it's right at the detection limits, which 18 . questions whether there is any in there. 19 Q . Mr. McPhiilips, does it show 7 parts per billion of 20 something that looks like 2,3,7,8 TCDD.in your Santophen? 21. A / It says 2,3,7,8 et.al, yes,sir. , * " ^- * 22' Q Does, it show that, does it show 3 parts per billion? 23 A ^ Yes, sir. ` .' ' ^ * 24 Q Does it show 2 parts per. billion and 2 parts per . i"t -"*f* V- e,: >v ^ BAYONNE. N.J, > ^ I?' t 1'' 1 billion? r `ri' l , .' < . - - \&40 */ :'.V''' iv' ' ,/ i~ ' -2 A -' Yrves' ,l vs.i/r. '-. ''. `''C4 1 ^ ' ' tV- .- V- -;-;-- ' u. 3 Q, Does it show that, sir, even as late as August, of 198) - ;/- ;" ?L ^ '/T..v 4 and September of 1980 of. 6ne part per billion? '` < 5 A That's what it states, yes, sir/ ^. 6- ;'-`; Q Of something that! coelutes with 2; 3,7,8 ?CDD? , 7 , A, ,1. don't know if it states, that.; 8 : q `Well/.it says -- 9 A : I wouldn' t know. ; .- - , \ j JO Q Yduwouldn*t know that? Well,- take it'from me that 11 the exhibit-says that that coelutes with 2,3,7,8 TCDD; Now, 12 Mr. McPhiilips -- ,, .1 ` . - 13. , MR.- CARR: Could you hand him Exhibit 1245 also pleasl*. - ''' ' ` < - r JV > _ * - . 1 4 -' : (Pause). !L ^ ^ !/.. -r*-*', \ .!/ ^ " ';; 1 5 . " Q ./ And before you look at that, direct your attention 16 : ;back to Page 3 of E^ibit 1247,. which is your memo of April 18th, . 1 7 ' 1979. You also/are concerned about losing 2,4 dichlorophenol 18 as a product, aren't.you, sir? * 1 9 < A /It's;a' concern, yeS\ sir, it was -- 20-. Q And; of course, you understand, understood then and 21 . 'you understand now that there was that, which coelutes with 22 . ?,3,7,8 found,In the 2,4 dichlorophenol in multipie teets since ? t*V 2 3 - then .and up till '82, don't you, sir?- 2 4 A I don't -know about '82, sir. ' BAYONNE, N.J. . i'- V\i>. *v; -m '*' 3 141 V 1 Q You don't know that, sir? Didn't you see Exhibit 2 1301 a little earlier,-i982, September, 1982, 65 parts per <^ 3t billion in the tetras for your.; 2tfy dichlorophenol, .140 parte *-.* c_$.*< .A'V.'*'o'-; - -r *' 4 per billion in.your tetras for 2,4 dlchlorophenol? . `L. .. ' 5 A 1 see that* ' IS': A;;': 6 Q It is apparent, ,,Mr.-McPhillipe, rth&t you did not v 1 ' iv'. m ;' v 7 . eliminate the 2,3,7,8 isomer in your 2,4 dlchlorophenol, isn't 8' it, sir/ if that exhibit correctly.states the findlngs.ln 9 September of .'82? 10 " A... September of ?82? .Which one -- 11 , . Q 12 A Ye$.\ * / That's September '82? v v ' . 13 MR* HUSGRAVE s Mr. Carr,1you said 2,3,7,8 -- 14 .HR* CARR: Exhibit 1301. 15 . HR-HUSGRAVE s '-- -isomer* This.is tetras, it does 16, not say 2,3,7,8* Object,, your Honor, to Hr. Carr's question* 17 ' A It says tetras, it doesn't, say 2,3,7,8, sir. 18 i Q That's true,-but.the exhibit says it coelutes with 19 2,3,7,8 and we have shorthanded It hare. 20 THE COURT: Wait a second, gentlemen* Go ahead. Hr. 21 Carr* A: V \ . ^ '`'' -, 22 Q How, Mr. HcPhillips, you did not eliminate the dioxin^ ,23 from your 2,4 dichlorophanol, the tetra dioxins.or that which 24 , coelutes if that in fact Is an isomer that coelutes with 2,3,7,8, PENG#D_,CO,. flAVONNE* N.J* 0 7 0 0 1 A* t ,^ 142- 1 isn't that correct, sir? \ . -. t'v i.J 2 A I guess that's-what the data-says, sir* 3 . Q The next paragraph says that ,you're going to have to 4 notify Fallek-Lancro t.whohas ;asked you a question whether or ' 5. not it contains. How,phera?o a\.customer thatia; exercising ` -V ':^ h i v V. , ' 6 the right* and you say you're going to notify them when he 7 r.-vi A '>L asks the question. Did you notify him^ sir? down below 8 there that Mr. Metcalf.is to write a latter to Fallek-Lancro r , - . ` , y . .f- <? -} *"'?, > t r '> j > ; ' ; 'Z .* -v V'V vvi iX >f. . -- > " -9 and a review Is to be made by legal. Do you see that* sir? 10 a Yes* sir, I 'aeen'it.Y,, 'v V ' . - V // . ;\-.- 11- ^ Q So Was that, customer ever notified? They asked -- 12 A I: think they'Were* yes* sir -- 13 Q Oh v~- - / X ` ,- ; ;'v : . r 14 ` . * 'u . k- ' 'r^. 1 -u 1^ , , A Not; a. letter. f'\ . t X \ l,\- * ` ' .* 15 Q Oh, where .is the memo;that they were told? Where is ; 16 the -- 17 A : I aid not a ,letter, sir. BAYONNE* N.J, , 18 ; Q Well* here it is,.they're going to write a letter to 1? Fallek-Lancro. .Isn't that what it says? - 20 21 22 "23 " 24 A That's what is. sicated*. sir. Just because the letter states that doesn't raeah it was done* sir. ,-* Q . DidMr. Hatcalf writethe letter? A -Sir, I don11 know, You've got to ask Hr. Metcalf ' that. If retail, 'he:did .put a draft of a lerter together. ' t: -<r pi rk > v-' i 1 Q And ic want to legal? 2 .A Ko, sir. - . 3 Q But It didn't gat any farther than legal, did it, sir^ 4 A Sir, I don't know if it went to legal or not, air. . 5 1 really don't.know. 6 Q . And to. McPhillips, you have no firsthand knowledge 7 of yours that Fallek-Lancrd:was. ever toI'd\even by telephone, 8 isn't that correct, sir? . 9 A Yea, sir,- they^.ware. ; ^ /- V ; ^ 10 Q You have firsthand knowledge of that? i\': 1 i mc s 11 . -> -* l , V A We talked the issue of dioxin -- 12 Q You talked to,then yourself, did you? 13 A We talked dioxins with them. 14 Q Did you talk dioxins yourself, sir?" 15 A Yes,, sir,. X'think'so. L 16 Q And when was that, sir? 17> A Oh, God, in was in that summer. Because -- 18 Q Did you moke a memo of it, sir? 19 A Sir.-- ` 20 Q . Ky question was did you make a memo of'It, sir? 21 A A'.memo:that I -- 22 Q That you talked to. them and what you told them, *. ' v . i 23 A Sir, I don't recall.. . 24 ' 1i r m r* * " ' Q Did,anybody make, a memo?. . - ij/ , A' i 1 MR. MUSGRAVE: Of what, sir? 2 Q If you talked to them, sir, what did you tell them 3 about the dioxin in your product? 4 A I don't recall what we told them, but 5 Q I'm not asking you what you told them, Mr. McPhillips. ,6 I'm not asking >-- I want -- 7 A Sir, it's been a long time. I'm trying to -- 8 if I recall what we talked to them 9 Q Again you're saying we. My question specifically -- 10 11 Q Mr. McPhillips, do. you have any Independent recollect! f t " . -' r' *' " i , !' "t ,, - 1 . ;' ( ] 12 'f *. today that you ever talked to anybody "at Fallek-Lancro following 13 this memo of April 18th, 1979. and before January. 1st, 1980? 14 A Yes, sir, I recall discussing with them the issue of 15 dioxins, yes, sir. 16 Q And when was that to the best of your memory? 17 A Sometime in the summer of 1979. 18 Q And what did you tell them, .sir? 19 A Because -- 20 Q Excuse me, what, did you tell them, sir? 21 A I third; I told them about our surprise findings. I 22 think I told them that we were in the throws of trying to 23 eliminate, wa modified the process to eliminate, try to olimina^ 24 the tetras to a point where they wouldn't be a hazard, and if 1 I recall, they vara also asking for Information because on 2,4 2 dichlorophenol the USDA or something was talking to them, and 3 I put them In contact with our technical people to help answer 4 some of their questions, I think the government was asking them, 5 Q That's a situation that came up some time later, Mr. 6 McPhillips. 7 A Summer -- I think it was right after that, sir. 8 You know, it's been six years. 9 Q I think we have a memo dealing with that and I'll -- 10 I don't have it immediately available, but we'll get to that, 11 I'm sure If one exists. Was that a memo made by you? 12 A Sir, now I don't think it was a memo. 13 MR. MUSGRAVE: He's not talking about a memo. 14 A I didn't say a memo. 15 MR. MUSGRAVE: You asked him about what he discussed 16 with them and he's Just repeated that. 17 A And I'm repeating what I discussed with them. 18 MR. MUSGRAVE: Can you identify the memo? 19 A There was no memo, sir. You know, not everything is 20 done by memos, especially in sales and marketing. 21 Q Ho, we do have a memo about a discussion with Dr. 22 Carney of the USDA in which he says Fallek-Lancro is asking him 23 if there is any dioxins in the 2,4 dichlorophenol. 24 A I don't -- * '' , ' * > T. ' *9 / 1 Q And you -- it's in evidence here I don't have the 2 number of it and you're telling Dr, Carney to be sure and 3 tell tie what Fallek-Lancro finds out about dioxin in 2,4 dl- 4 chlorophenol 5 MR. MUSGRAVE: Well, Mr. Carr, -- I object to 6 counsel's paraphrasing a document, your Honor, the document 7 peaks for itself. The document Is in evidence and X object 8 to counsel paraphrasing the document. 9 THE COURT Objection is overruled. 10 MR. MUSGRAVE: It's incorrect paraphrasing of It. 11 THE COURT; Objection overruled. 12 q Mr. McPhlllips, what you told Fallek-Lancro, if any 13 thing, was not reduced to writing inany way, was it, sir? 14 A Probably not,r sir,^no, 15 Q And if you told, them anything,, you told them that 16 you're going to eliminate it because of the process change, 17 isn't that correct, sir? 18. A X don't know if X would state it that strong, sir, 19 but X'd say that we were making a conscientious effort to 20 reduce the levels of it, yes, sir, where it wouldn't be a 21 problem or an eminent hazard. 22 Q Well, did you consider -- 23 A Obviously your objective is always to reduce anything 24 in terms of any kind of impurity. 1 Q That* not what I'm asking you, Mr. McPhllllps. Did 2 you consider it an eminent hazard at that time when you dis 3 covered that it vac in your 2,4 dichlorophenol? 4 A Sir, I don't -- 5 MR. MUSGRAVE: What time? 6 Q In ' 7 9 when you discovered that It was in your 2,4 7 dichlorophenol. 8 A Sir, I don't think we did; Vou know, like Z said, I 9 don't make that decision. 10 Q You were at a meeting when it was discussed, Mr. 11 McPhllllps V 12 A Yes, sir, and X don't recall. It doesn't specifically -13 state -- let's see -- sir, all X was doing is writing the 14 minutes of what the meeting was. I maybe missed It. 1 was low 15 man on the totem pole in this meeting here end 1 was writing 16 the minutes and 1 might hot have covered every Issue in this 17 k _ `* letter, sir,; everything that whs. discussed iln this meeting; *1*8 Q Do you have Exhibit 1245? 19 A X got it. . 4!/ ?\\ r-J 20 Q Do you have it? 1245 is a summary of a - or is a 21 monthly report, is it not, dated May of f79? 22 A Yes, it says May of '79, yes, sir. . 23 Q , Would you turn to the second page of that, sir. 24 A Yes, sir. iY* 1 Q Now, this is not written by you, but it Is written by 2 Cross, Kilbourne, Matssner, McEwan, and J. D. -- Dr, J. D, 3 Wilson, isn't it, sir? 4 A That's what it states, sir. 5 Q If you turn to page numbered two of that exhibit. 6 Would you do that, sir. 7 A Yes, sir. 8 MR, CARR: And, your Honor, this has been previously 9 in evidence as 1245A. 10 THE COURT: Fine. 11 A Sir-,' you mean No. 2 -- 12 Q No. 2. 13 A Or Page 2 or Page 2 of distribution. 14 Q Page numbered 2. 15 A Okay. 16 Q At the top of the page the number 2. 17 A Yes. 18 Q You see that that discusses the fact that you elimi 19 nated the caustic, and you suppressed the dioxin formation? 20 A Samples, each step purification of PCP .-- where an 21 analysis -- no chlorinated dlbenzo dioxins could be detected 22 In any of the samples. Thus it was clear that the elimination, 23 of the caustic from the stlllpot effectively suppresses dioxin 24 formation in the process -- A 7*. v 1 Q I the answer to my question -- 2 A It also says but analytical methods are not -- 3 THE COURT* Mr# McPhiUips -4 THE WITNESSi Tea, sir, I'm sorry. 5 THE COURT* The question was asked. Now listen -- 6 Q Is the answer to my question you do see that this 7 memo does deal with the fact that you've suppressed the format!* 8 of dioxins by eliminating the use of caustic? 9 A I don't know if it says suppressed. 10 Q It uses in about the sixth -- thus we conclude chat 11 eliminating caustic from the splllpot effectively suppresses 12 dioxin formation in the process. Do you see that? 13 A That's what it states, yes, sir# 14 Q And would you go down to the third paragraph on chat 15 page where it discusses from practical toxicological considerat:l 16 that limit is probably about one part per billion. This we can 17 measure with present equipment, with improved methodology. 18 However, because it is now such an extremely emotional issue 19 that may not be acceptable to our customers. We expect to 20 resolve the question in consultation with DMEH early in June. 21 Bo you see that, sir? i .V s 1 \ 22 A Yes, sir. * 23 Q Now, this, of course, is what you said, have said in 24 court and what you said in effect in your earlier memo, that is 1 that dioxin in the product may not be acceptable to your customa 2 oven if It goes down to one part per billion of dioxins isn't 3 that correct sir? , 4 A That's what that states there sir yes sir. 5 Q They're not talking about 2373 TCDD they're talklii 6 about, this memo is talking about any dioxins in the chlorinated 7 phenols, isn't It? 8 A I don't know about that sir. 9 Q Isn't that what it says? 10 MR. MUSGRAVE: Object -- 11 Q We can never say that our chlorophenols contains no 12 dioxin or dibento furana, only that they are below some small 13 limiting concentrations. From practical toxicological consider 14 ations that limit is probably about one part per billion. This 15 we can measure with present equipment with improved methodology. 16' However, because it is now such an extremely emotional issue 17 that may not be acceptable to our customers. Do you see that, 18 sir? 19 A I see that, sir. 20 Q And that's talking about dioxins,.period, isn't it, 21 sir? 22 MR. MUSGRAVE: Object to the question, your Honor. 23 The document speaks for itself. 24 THE COURTj Objection is overruled. -Mr. Carr, i s thi i Vi". - ' '' ; y <r AT\ 151 1 a good point, for a short break?.. 2 MR. CARR: Sure* your Honor. 3 THE COURT: Vie911 taka a short, break at this time. 4 The admonishments that X'va^given you earlier will apply during' 5 this break also. Court's in recess. . 6 (At this time a short recess was taken.) 7 JOHN McFHILLIPS. 8 resuming the witness stand having been previously sworn* 9 testified further as follows: 10 CROSS EXAMINATION (Continued) 11 BY MR. CARR: 12 THE COURT: Okay. ;Mr. Carr. 13 Q I don't think X asked you with regard to the exhibit H that you have in your hand now if that report of -- R and D 15 report of May of 579 did conclude with regard to customers that 16 you acknowledge that one part per billion may not be acceptable 17 to the customers -- by you* I don't mean you* you didn't write 18 the memo* but you at Monsanto acknowledged that one part per 19 billion in your chlorophenois would not necessarily be accepted 20 by your customers* isn't that correct* sir? 21 A Because of the extremely emotional issue* yes* sir. 22 Q Your customers have the right to be emotional and have 23 the right to make their own decisions about their health and 24 their customers' health* don't they* air? *' PENGAD CO-, BAYONNE, N.J. 07001 FORM IL 2 B "V & U -?*.' 1 > .1 K ^ .. \ 1 A Siri the emafclonal you*re: talking about emotionaf 2 health safety ,and I*m talking;emotional ?In1terms of ,marketing l - T 1- `**4 *v *" * * 3 or. consumers or what have. People bear something and they 4 react whether It9a a viable complaint r not air. 5 Q Well they have the right -- 6 A Just a reaction and that was -- we were concerned 7 VL . 1 ^ r more -- when we mentioned emotional it V not from a health 8 and safety. We were more concerned even if It was health and 9 safety there's a lot of emotionalism because of th press , 10 what have you*, especially of an issue like dioxin* It's -- 11 Q Well, they -- you acknowledge and you recognise 12 in that ft and D report of May of *79 that some customers would 13 not be satisfied with the chlorophenl that h&s one part per 14 billion of any dioxin in it because of their emotional feeling; 15 about dioxin* isn't that right sir? 16 A That's the statement by these authors# yes sir. 17 Q And you do recognise that -- that these customers* 18 if they feel that way about something, they've.got the right to 19 feel that way and they have the right to allow their amotions 20 to control their reactions to whether they will or will not use 21 their products don't they" sir? 22 A I -don11 .think we agreed to that earlier air. 23 Q No* I'm talking; about -24 A We discussed that Issue earlier. . 1 Q We were calking about whether or not they had the 2 right to know, and you said they don'fc have the right to know. 3 I'n nowasking you whether'or not they have the right to their 4 own amotions la the way they feel about things. 5 A Their own emotions In regard to marketing concerns? 6 Q Their own emotions as. to how they feel about dioxin, 7 whether or not they -- 8 A Everybody has, sir, their own emotions, sir. ? Q They have the right to those emotions, don't they, 10 sir? 11 A They have the right, the. way you phrase It, yes, they 12 have the right. 13 Q Is there any way that they don't have the right to 14 their own emotions? Don't I have the right to feel afraid of 15 heights If I want to be? It might be Irrational, don't I have 16 the right to be afraid of a dog that slobbers at the mouth? 17 I might be irrational, it might be an emotion. That dog might 18 just be thirsty, but don't X have the right to that emotion, 19 to that feeling? 20 A You have the right but -- 21 Q To that fear? 22 A Yes, sir, you have the right, but you also mention 23 the word irrational, too. 24 Q I'm not even concerned with that. Don't we have the 154 . i right -- if I want to.ba a health nut and say that I'm not 2 , going to cat anything that has an additive put in it don't X 3 have the right to decide, emotionally it may .be, because there 4 may not be enough evidence to convince a rational person like 5 . . yourself that adding dye and food coloring and phosphates and 6 all kinds of things to food, while you may rationally think T that it's silly for me to believe that I don't;want to eat Chos^ 8 > things and it's emotional for mo but I 'm asking you Hr 9 ' ' . , "^ :l V 1 * ' i -t HCPhillipe, don't I have the.right to b'e^governsd by my.oemotion^ 10 if X want to in determining what food I'm going to eat what, 11 medicines I'm going to use what chemicals I 'm going to be 12 exposed to? . 13 A the way you state the.question yes sir 14 Q Is there any other way to state it? Don't we all 15 have -- 16 A Sir wa all -- r 17 Q Excuse me. Let me finish my question. Don't we all 18 have the right to guide our destiny by our belief not what some 19 big man in a corporation thinks might be good for me? He might 20 he right it might be best for me but don't X have the right 21 to decide for myself stupid as X might be, irrational as X 22 might be as emotional as X might be, don't X have the right 23 to decide for myself? / 24 A The way you state that, sir X disagree with you. r -t 1 Q You disagree with ms? 2 A Ye, sir. 3 Q All right* You believe that you and the corporation ? 4 can overrule my feelings about.things , and whether X want them 5 or not you have -- you have the power to do it and so you 6 also say you've got.the right to do it regardless of how X 7 feel about a product or a thing of a chemical or an additive* 8 is that right* Mr. McPhillips? ! 9 .A Sir, yes, X guess so. -,J: ' 10 Q All right* If that's your belief -- 11 A Yes, sir. As a corporation yrf - - ,/ n Q Is that view that you have about my rights, is it 13 shared by others to your knowledge at Monsanto? 14 A You'd, have to ask them; sir. 15 Q X'ra asking you so far as you know, sir. 16 A As far as I'm concerned, whn you talk in terms of 17 .impurities and an eminent btard of the product, as long as we 18 feel the product is completely`safe 19 Q Now, Mr. McPhilllps, what X asked you 20 A -- that is our beliefi -- - 1 , 21 Q I didn't ask.you that. What X asked you was Is your 22 view of my rights' to be emotional versus the corporation's ri 23 to be -- expose me to something, is your view the same as 24 .! 1 .r. the view of others at Monsanto Corporation so far as you have - V. 156 1 knowledge of their view? 2 A The way you ask that question, X guess so, sir. 3 THE COURT: I'm sorry, X didn't hear your answer. 4 A X guess so, sir. . 5 (Plaintiffs1 Exhibit 1555 was marked for identificatifm.) 6 Q How, I'll hand you now Exhibit 1555 and let me back 7 up a moment* . Isn't your present view of your customers' right, 8 isn't it & view that you arrived at after you learned that your 9 chlorinated phenols continued to have dioxin levels even after 10 you did additional tasting in point of time? I'l A My view on dioxin . -- , 12 Q Could you -- my question is did you arrive at that 13 view after or before you,discovered'that dioxins wore present 14 in your chlorinated phenols on your confirmatory backup tests? 15 A Sir, I never really thought about it before* 16 Q Then it has to be then after? 17 A If the situation, the situation as presented to you, 18 you think out what your position Is* In terms of my position 19 X don't make the position -- 20 Q Well, matter of fact, you do* Let me show you some 21 thing, 1555, and ask you if you did not before It was confirmed 22 -- let me back up a moment. Weren't you sometime in June or 23 . late May asked by Wilson and Edwards and others to send out 24 letters to Sterling Drug and to other PCS customers that a tw- ' * i 1 recent 3 Ample of Santophen revealed no XCDD in PCP or Santophen 2 A No* air. 3 Q Look at Exhibit 1555 and see If you don't recognise 4 that as a memo of yours dated June 14* 1979. Is it* sir? 5 A Yes* sir. 6 HR. CARR; Offer 1555 into evidence if it please the 7 Court. 8 MR. MUSGRAVE; Object to it* your Honor. It deals 9 with Santophen* para* relevant and immaterial. It's remote 10 in time from the spill so as to have any probative value when 11 weighed against other considerations. 12 THE COURT; It's admitted over objection. 13 (Exhibit passed to the Jury.) ^ r \ ti 1 14 Q This memo dated June 14th* 1979 was written by you* 15 wasn't it, Mr. McPhillips? 16 A Yes, sir. , .. 17 Q And it did go to Dr. Wilson* didn't it* sir? 18 A Yes, sir. 19 Q And it mentions a prior discussion that you had with 20 Wilson in which it was contemplated that you were going to send 21 customers to Sterling Drug and two other PCF customers based 22 upon his statement to you that one, sample of Santophen or PCP 23 and/or PCP found no TCDD in it, isn't chat correct, sir? 24 A No, sir. v ' . 158 1 Q Did you no have; a discussion with Dr. Wilson about 2 sending such a letter? . 3 A Yes i 1 had such a discussion with him. 4 Q And did you not, did he not tell you that at that 5 discussion that you found no TCDp either -- in.neither .t L 6 Santophen nor in PCP? 7 A He told me that in one sample, yes, sir, but I told J.,,- r* 8 him what my position --* V 9 Q Excuse me. Hr. HcPhilltps, if you don't mind, I got 10 the answer to, that one, and now I want to ask you this. Did 11. you not discuss with him about sending letters to the customers 12 regarding the Santophen and the PCP findings? 13 A .'Yes, 1 did, \ 14 Q And did you not .tell him that you don't want to send i* 15 such letters because you, as you say here, I hardly believe one .. S t, 1 i ' i *> - "* 1 v 16 sample each is representative.ofourrecent production, end-of 17 quota? . !,,! j.v* 0^" .\-L :-\\\' y f -J'^ ^ - '-Ki ' 18 A That is correct, sir, 19 Q Didn't you tell Mm'that because ydii-did not want to. 20 send out this latter until,you got confirmation that, it was true 21 that there is no TCDD in either product? .; 22 A Sir, it's not a question X did not,want. I disagreed 23 with tho statement that you said to me I did not wantto send 24 a letter, X had no.problems sending a letter to the customers PENCAD ,C0 I but our previous analysis and soma analysis on dioxin wa found 2 some in there, and it wasn't conclusive; therefore, 1 took the 3 position hey, we've got to generate more data. In this case 4 it's just the reverse, Mr. Carr, to which I state we've only 5 got one representative sample where it's no. If we used the 6 logic before whether there's some before and not now, hey, 7 this -- it's a two-way street, so let's get aotos inore data, 8 so that's what I did. 9 Q Indeed, and that's bean the thrust of my question. 10 You did not want to send a letter to the customers telling them 11 that there was no TODD in the product until you got confirmatioi 12 of that, until you could back it up with more tests. Isn't that 13 correct, sir? 14_ A I wanted to get more confirming data, yes, sir. 15 Q Yes, because -- 16 A Whether -- and if it was an eminent hasard also. 17 Q Well, you don't say that in here, do you, sir? 18 A So. -* , .> *i - j1' * \ 19 Q Excuse me, Mr. McPhillips, you don't say that, do 20 you, sir? . iA S' 21 A That's correct, I did not state that.. 22 Q You're discussing whether or not you're going to send 23 a letter to the customers telling them, aha, we've checked our 24 product, our recent samples, and we find no TCDD. You're sayii 1 we're not going to send' that letter until we get additional 2 verification? 3 A That*s correct air* 4 Q And then you say once we have additional verification 5 I will forward the customer letter; you see that, sir? 6 A Yes, I see that. 7 Q You say here we owe these customers a response. What 8 do you mean by saying that we owe these customers, Sterling 9 Drug, Lane and Fink and your other PGP customers a response? 10 A Sterling Drug and the two PGP, because they requested 11 the information, sir. 12 Q OhV they didn't request any information. There is no 13 memo one in which they -- Sterling Drug requested of you the 14 information? 15 A ;X don't recall *- sir, X don't recall the Sterling 16 Drug inquiry at all, but the two PGP customers -- sir, they'r 17 probably verbal., 18 Q Ho, sir, there wasn't. X have asked for and Monsanto 19 has produced every document dealing with customer requests and 20 dealing with customer notice.:, There,is not any, Kr; McPhillips >: ; '` -J :,j, >i ' 21 ', ' 5 ',L t _.t and In view of that what do you mean when you say we owe these 22 customars a response? > r ,? 23 . . i >/' ^ ' i- A Because the customers, the two PCP customers, if X 24 ' ", . ^ ; : ` iVr' ;-V;recall, were Givaudan and,an outfit called Tennessee Eastman, > 1 who by the way, I don't think we ever sold PCP to ever, and 2 they asked questions of whether there was any dioxins in PCP 3 and is there dioxins in p&r&chlbrophenol -- I don't remember 4 the exact question -- to which we were going to give them a 5 response. 6 Q I've got those letters. You responded by telling ' 7 them that there wasn't any, . ;- 8 A I. -- 9 Q So let me ask about this, sir. Those are -- if 10, those are the customers you're talking about, I have those 11 letters right there, and I'll be showing your letters to them,1 12 I'll be showing those to you in.a moment. But you've got 13 Sterling Drug Included in there, sir, 14. A Umhm. ' 15 Q . And.you owe those customers a response? 16 A Umhm. - .' ' 1 \1 Q And it isyour belief that you should not tell them 18 based upon just one sample, isn't that right, sir? 19 A That's what I state there, sir, yes, sir, * ' < 20 Q Now, you changed your mind about that. Hr. McFhillips, 21 and you changed your mind about whether or not you owed 22 what you owed to customers, didn't you, sir? 23 A No, sir.. 'J ^ 1i- *' 24 Q Well now, Mr. McPhlllips, you've never notified than. %' * a 1 Mr. KcPhillips, you've nevor notified them that there was TCDD 2 in these PCP or in Sanfcophen, have you, sir? 3 A X forget exactly what X stated. I think at that time 4 5 Q No, you told him there wasn't any in it, 6 A From the previous results -- 7 Q My question is you've never notified them that you 8 have found TODD in your PCP or in your Santophen, have you, 9 sir? 10 A Not that 1 recall, sir. 11 Q Matter of fact, you told him Just the opposite, dicin't 12 you, sir? 13 A Mall, sir, I don't recall, X mean, you've got to 14 dig out some of those analyses on PCP, what have you on whether 15 we found dioxins, 16 Q Well, we have the analysis of the PCP we went through 17 with the witness just In front of you that as late as May of 18 '79, and this is a result that came in in June 26th. '79, there 19 was dioxin in your Sentophen and in your PCP. We have those 20 results here already. 21 A But those results were very tentative and they were 22 not conclusive, because if X recall, we were -- 23 Q Excuse me. Who says that they were tentative? 24 A Not tentative -- well, we -- (I i ; 0'. I Q Tha table -- :could you git ll35? It zalght be here 2 from tha prior witness. It. is'here. There's nothing tentative 3 about those findings, is there, sir? 4 A Sir, I -- I would have to ask my technical people 5 whether this is tentative or not; You're taking me out of my 6 field. 7 Q ^The technical people have been fully examined about 8 it, fully examined, and they didn't call it tentative, sir. 9 There's nothing in the document that calls them tentative, is 10 there, sir? , 11 A Sir,.I haven't read the full document; 12 Q Did somebody tell you before you testified here today 13 that these in fact were tentative findings? 14 A Well, I don't know if the word tentative -- 15 HR. HUSGRAVE: Object to counsel -- 16 Q Did somebody tell you before you testified here today 17 that these were tentative findings? 18 'f HR. HUSGRAVE: Object to that calling for hearsay. 19 THE COURT: Objection is overruled. 20 A. No, sir. I what I recall 21 Q Then did you see a document where all these -- oh, 22 it's a long list of findings that were described as tentative? 23 A It says here TCC was reported as two groups, isomers , 24 which elute at a retention of 2,3 and those who elute to other 1 retencin times. 2 Q They're talking .about TCDD, aren't they, sir? 3 A Those levels do not imply 4 Q Excuse me, /sir.'" They're talking about TCDD, aren't 5 they* sir? 6A 7 sir. Those -- part of the sentence I Just read you, yes, 8 Q And they're not talking about any tentative findings, 9 are they* sir? 10 A I guess if you want to us* the word -- 11 Q No, I'm not guessing -- is there any word in there 12 where they describe these as tentative findings? 1 3 A No, sir, not that I can see. 14 Q Now, you've said at this time, if X understand the 15 thrust of your 1555 memo, you really didn't want to snisrepresen 16 something to your customers until you were sure, you wanted 17 verification before you're going to tell them that there's no 18 TCDD,isn't that right, sir? 19 A We -- - 20 Q Isn't that right, sir? 21 A The way you phrased that question, yes, sir. 22 Q Tee. Now, you got the document -- 1135 is dated 2 3 what date, sir? 2 4 A It's June 26th. 165 1 Q And you wrote a letter to your customers on July the 2 12th, didn't you, sir? 3 A 1 don't recall the date, sir, 4 Q Well, we have it.right hare, ahd.it won't b* any h*- ' 5 problem to show it to you, 1 "' ** 6 (Plaintiffs* Exhibit 1556 was marked for identifieati^*w) n7 Q Handing you Plaintiffs * Exhibit 1556 and ask you if 8 you recognise the second page of that exhibit as being a letter 9 that you wrote dated July the 12th, 1979, 10 A That's my letter, sir. 11 Q I didn't hear your answer. 12 A That's my letter, yes, sir. 13 HR. CARR; Offer 1556 into evidence. 14 THE COURT: Any objection? 15 HR. HUSGRAVE: Yes, your Honor, we object to it on 16 the grounds that it deals with parachlorophenol and it's also 17 remote in time from the time of the spill to be probative on 18 the Issues hare and when weighed against other considerations, 19 THE COURT: Objection ie overruled. It's admitted. 20 HR. CARR: And could X have 1556A please. 21 (At this time Plaintiffs' Exhibit 1556A was marked 22 for identification.) 23 Q Do you recognise 1556A as a blowup of the second page 24 of that exhibit? ?. -r f _ A -Nc* .- I6fe; v% * \ * is 4 1 A Yes, sir.-V.--*^ 1 * ^i ** '-'i \ *J v.V ^ "; r ' - -; 2 MR, CARR:./ Offer 1556A into evidence. . r- ^ ", ,, _ A> - ' 4` d ` 3 MR. MUSGRAVEs Same objection as to 1556. 4 \ THE COURT: Same rulingi 5 Q Now,. McPhillips, 1556A is a letter that apparently '6 * 7 _8 9 JO is from one o`f>the cus5to'Vmers.cha*t!j"*y'{o-u'refeVr''ried ^t'o*, in the Exhibii ''' 1 , . - JV V---vr- ,> 1555, where you d i ^ fftyvant to give a response; ish* t that right, sir? !** * .Y" ' - * - tT ' (" 'j 1 - f ` i I - , - ' "' ' ,. ' ` l s ; f-.t* '' [ i- : \* , i. A Those two letters correlata together, yes, sir. ' , ' ',J' -;''V - ^ f , "'*'*.**?;`y:i7i% v :';v t . Q vAno your memo dated 1555; where' you1don't want to send .11. this report until you get more confirmatory, data, that memo is 12- 13 14 15. :16` . I7' nJ 18; dated June 14th, *79. Now, what's the date on Plaintiffs* Exhibit-1135, air? . ;V, - / A ;June 26th. . Q jiinfe 26th, 1979 you got the exhibit that contained, ,. ^ ft; t l, o , T iF. ^^ , / j. among other; things. Table 3;showing, the results, of tests on various chlorophenols/isn't that correct, sir? V A Ihre's sos^ results, yes. , J 19 Q Now, having that letter /---* and this Exhibit 1135 20 21 ' 22 , 23 'v on June 26th specifically shows; levels of TCDD in PCP, doesn't it, sir?k ` f . l 1 . _ ' r ' ^ V* r, y f ' - + '" ' ' .; A I don't know, sir.. I haven't looked at this closely. Q Nell, let me help you* 654 if you're turning -- if ` 24 you look at table, 3 is PCP : v . .. :> v r BAYONNE;, N.J. ' 07002 - 'FORM IL 24 B i f. V 1 A 654? \ 2 Q And it shows levels of TCDD, doesn't it, sir? . 3 A Yes, sir* and it shows some none detectable also,, sir 4 Q On 654? Better read that again. 5 A Kone. detectable, less than 60. Sir, you're asking me 6 7 Q What I'm asking, Mr. MePhillipc, if you look at 8 9 Sample * MB165,4,* all of thoi se 'VV 'it'* e' s'ts' s*h^to1w' de- tectrab,l-:e*%* levels k J *" in the hundreds to 130 parts per billionof TCDD, doesn't it, sir? 10 A X don't know, ,. s,il %r>' ;. iX gues's| 1^ so,;' ." . \ / j *-J 11 Q CL4, if you're not aware of it, stands for TCDD. 12 A What page are you on? T :7% i i v,, i. 13 Q . Table 3, Page 9. 14 A, That's the problem. /I see it, yes, sir. 15 Q And it shows levels of from.100 to 130 parts per 16 billion of 4, TCDD, doesn't it, sir?; .17 ' A -- .Yes, sir, 18 Q And look to the last page for Sample 726, last page 19 of Table 3, that's Page 11 of PCP at Battle 727. Do you s.ee 20 that, sir? 21 A ?.Yes,".sir., 22 Q Two.tests, one there at 14 parts.per billion of t 23 and the other duplicate sample did not detect it at 10. Do 24 you see that; sir? -`f- > L.'- i'f 168 '*** .!> *S -1 1 Otohm,; - ; * v.- t 2 Q. Now, you tell Hr. Getzor Hr. VonEsaen that you did 4 3 work that was. done over a,year ago in testing your parachloro- 4 phenol, and you found no :XGDD In the work done over a yearr.ago. V Do you see that, sir! 6 >' A - Yea,, sir* : - , : . 7' - . Q Now, this work that you hava1here ie work that was _ J- J ^ 'r' - - F" ' * : 8 ^ done in 1979, June, 1979, You .see that, air? >; 9 A Yes, sir,: *. . / . ; . il Q '; And you1re giving this man information on testa that ii . j2, ^ 13 ... 14 - 15 were conducted, old teste; that were conducted in 1978, In the ^ - ^ . . - - ''('a M *V X')-L spring o *78 apparently, and yousre not telling the man about. , T' ir tests that were conducted in^1979*\are you, sir? A \t;guess; not, sir, no. , - r `v - n * ;, t r1 > ^ Q * Wei1, Mr. McPhil1ips\ you are in essence lying to . ' 16 this man, aren't you, sir?. -V r ... - .17 . " - ^ < hi j, ^ t A No, sir. Sir, I was not1 J18 Q He's -- Mr* jicPhillipav isn't he wanting to know, 19 whether or not`there's TCDD in;yoiur. product? You have the 20 exhibit that shows there is TCDD in your product, in your ' '1 21 parachlorophenol, and you're telling him that your data shows 22 23 ' ^ 24 no TCDD in your product. You told him that specifically. Our data shows no TCDD in our .product at a detection limit of 10' parts per billion. You tell him that specifically. PENGAD CO;, BAYONNE^ K.J* 'T 169-i' - 'I . 1 A I specifically toll him that. 2 Q And that is a.lie,, isn't it, sirt , 3 A ; Of over a year ago. . aA <? '4 4 . , Q Excuse me. That statement, is a lie, isn't it, Mr; .5 McPhillips?/ v' ^ "6 A N, sir, it's,not, , v^ r' l,, . s t . 7 Q Do you have data that shows that you did have TCDD 8 in your product infront of you;; Exhibit 1135? ' 9 A Sir, 1135 might say that,; sir,, but that doesn't mean 10 that I saw this data. June 26th, you got the 4th of July n weekend, and. I never was copied in on a memo like this so that 12 doesn't necessarily mean that I lied, sir. 13 * 14 , Q \ v+Well, ^nsnt, lied,, didn't they?; . - * 11;;ir; w r - r * v- - A .'Sir, X don't see any advantages to lying. ' .. is -, Q. Youdon't > -* see any '- ad. v>Cv-'a>inr/t^aY-gre >i-rf' ^ta'v custonior !'' 1'' is .told .> t 16 that there's no TCDD in a product, it might continuo to use . 1 * i ( ,'iA'r`i:1 '' 17 that product:, whereas if they know emotionally`they*re going is; to react to it; if they know there's TCDD in the product, they ' % ', 19 might emotionally react And dcide that they don't want to.use 20 that product. " You know there is ah advantage to misrepresenting 21 the facte,, don't you, Mr, HcPhillips? , 22 A No, sir , I .disagree with how you misrepresent the 23 /' facts, sir. ; Sir, this .data -- before I'd make any conclusive 24 statements;, I would have to talk to my technical people. b a y o n n e ;, n .j. >' 170 l{> they had a position! that l --!., which wasn*t conclusive, and I don't know what it was v Maybe in this case the June 12th memo, I did not discuss it with them/ because X still was waiting for the. results and was unaware of any data generated and whether the data was generated:represented any problem. Q : Oh,, let's explore that a-little bit. Your letter of June 14th, 1979, Mr. McPhilXips, goes to Wilson who is the person that's in charge of all these chemical analyses according to his testimony. *He gets a copy of. this, and there's handwritten notes down/there.> You got four to sIk additional POP samples *. .-'f 'r/V ' ' , 1 at Payton awaiting analysis. Is that your handwriting there, n r' j - . ,r ' ^ FT sir? . / ^ \' > \ k. A No, sir. '/ / v /; ,, _ *'' Q Well, we probably! got this from Wilson, so it may be his handwriting. So you're in contact with your people and you tell him you1re golag -J?..fyou*re,hotlgoihg toreend out anythink '*-' : - '-_wi ; 'i; .a--- ;>-1A:--1:v l . -> -v}^- * 1 ^ until you get additional verification, so presumably you got f'V S ' - vi some further information boforc you sent out chis letter of - ( i -'v' -v -* , July 12th, isn't that correct,: Mr. McPhillips?^ t . ` .- ri,'v' <.'(,^4 1 i`v,VJ.'^ Vv ^ni . * . r,'1;' A .Ko,,sir, X wouldn't necessarily agree with that. , Q Well, Mr. McPhillips ,s/" A Ivcould give you a scenario,/sir, that would Q In your letter of June 12th -- ?^ ' ( ,' < '- - 1\- I did not say. that at all, ^ -..V \\ .. V. / i 1 Q In your letter of June 12th you acknowledged that ; 2 chare is a test of recant production, you say it specifically; 3 A June 14th, sir, j 4 Q Your June 14th letter you acknowledge that there Is; 5 a recent product test. 6 A Although we have found no 7CDD ,7 Q Don't you, sir? 8 A -- in our product -- 9 Q Don't you, sir? 10 A Yes, I see that 11 Q You know that there is a recent test, you know that ! 12 there was a test from February that -- where they found this 13 you've seen the Santophen tables yourself, sir; where they 14 found the parts per billion in the Santophen -- 15 A We're talking PCP. J j 16 Q PCP is a predicate -- is a preparatory chemical i 17 to Santophan* le it not, sir? 18 A Ye,, sir. :1 19 Q And we're talking about PCP Sample 654 was nothing 20 but PCP. 21 22 23 A Yes*,sir. It's prior to caustic, yea. 24 Q So you say you're not going to sand that letter outj n , .-.i y ' 172 1 but what do you do? You send him a~letter out talking about a '\2 sailing dona over a year ago. 1V , , *>>7^ *. * . 3' A That's correct/, v/ 1 \t 4 Q When you have a recent sample chat shows no TCDD in V t' 5'! J6 : ' 7 the PCP. Why don't you refer him to the recent sample, Mr. >-*v. McPhillips? ; ; A Because 1 felt that data was not conclusive. They 8 were still generating additional data, and you just don't . 9 ; analyte one sample and go off the cuff, 10 ' J Q . Why would your -- ; / v ** n ? A... You1va got to look at your gnerai production* not a 12 ^ 13 14 15 16 ' 17 - 18 19 20 ` -^21 . ' 22 23 ' 24 given lot." :\ -- - : Q Why would your data, that'.s over a year old on PGP be more reliable than your ,more recent data? / ; A Sir I guess my position at the time* and this is going back six years -- . . ' "* ,, " - >- r k Q Would you answormy question, sir. I'm not asking you -- ;a - I'm trying to* sir, if you'd let me finish., Q I'm asking you why you believe that -.** A -, Sir. `:sfi'; ^01 Y V*!S >* `* -- -- ` t \ x *, V f* \ M> uj< J , v > w * /' ^ ^ *S - ' " ^ Q your data from, a .year before July of 7 79 is more. - r, , - , ' * '-l , ` 1 *1 Mr, '~ reliable than your data in --797 'That's what "I'm asking you* sir. V - -~ `` -, - 1" J ^ V * V * * i -- , ---rt ^ 41 V ? i` 1 t \. ,*S *l ' < , b' ' 4! 173 i- A 1 was tiding1to'"answer that, sir, but you interrupted ;.2. .3 - 4V" - ' 5\ 1: 6 `7 8 9 10 11 12 ,13 14 me this time. I'm sorry. May I explain that? Q You 'can answer that question THE^COURTi MrvHcPhillips, if the attorney who's 11 * r ' r #` t /'' 1 -z , t asking the question feels that the answer Is not responsive, H` S n ^ "a /` LL he has a right to interrupt and draw the witness to a reeponsivj answer. ; *' ,j, ^ ,V`J ;/ - ^ ' Mk. KUSGRAVE u Well,,your Honor -- THE.COURT: Just wait a seeond. / . . ,MR; HUSGRAVE: ,1. thought you were finished. ' THECOURT: In the future just answer the.questions of the attorney, *; . l. r MH. MUSGRAVE: Your Honor, inay I.nbw, your Honor -- I believe the 'witness was, trying to respond. The question was <15 asked why h would believe something as opposed to something . 16 else. He got about four ^rds-out of his.couth before counsel . i7 interrupted, Ho one could be sure whether he was responding -18 or not, and X believe that he has got a.right to explain,his ' 19 answer when he's asked a, question in that fashion, and I believfj 20 that he was interrupted and that ho was trying to respond to / 21 the question, your Honor; and when Mr. Garr. interrupts, it's -. 22" 23 24 for the Court to decide 1 believe,! whether ho was being responljve, f ^ !_\ ` 1 * , -v - ' ^ ^ -. * -- Ft , p' ^^ h '- x and I object to Mr. Carr interrupting and not permitting the witness to 'finish'his answer.^ ^ K PENGAD CO., BATON N t i lN.J. 07002 'FORM IL 2A B , " ' r\\ ;t ^"'i;.."*(V-^* 1 r - , ' ' ' 'T^*' "' ' ' "*/. n-'i ; s i.1 : v < ; > S ' *> *: * * ~i. ? . < .'. 174 : * ,,1; ^ % '* ^ '* - "t6 ; \ *1j |? r - THE COURT* I;don\t/think'hewas faspohsive. I think 2 the Interruption was proper. It was not -- from the start "4<f. i#`vl f'. 'h v , .3 : one could see if one isexperienced in these matters it's not - !vi:f\/i jf*. 4. responsive to the questibh. Your specific objection to the .5 action taken by Mr. Carr is overruled. You may proceed, Mr. 6 ' Carr, ^ / V . /- :: // /r - iy;- [Q Mr; McPhilllps, why .doyou believe. If you believe it -i - . 8 ; that your data oh the tests of a year before -- over a year -V` k 'l 9 before July of *79 is more reliable than your data developed .-.1 0 -- /in '797 ';y , V/ ' a.,-. v 'r ,, / li.' A Sir; the data/ I'll try to answer it the; , ,12 data in 1979 or *78 was-analysis that we had. The '79 data 13 from what I recall the situation was a mass in terms of trying / 14 to put all this stuff; together, and there were bits and pieces 15 coming out, and I was still awaiting some feedback from research* \'/' * v;; - / / / - ' 16 Granted, a June 26th memo might be out. That doesn't neceesari 17 /mean that I get it at all. In fact, just because it's June 26tfi ' is 19 doesn't mean it goes in the hands -- - > * '* * , ' ^. 'S ' n * ^j * Q Mr. McPhillips, I'm not even asking you about that '2 0 '. memo, \.o ^ ' a / ; - '-l 21 : , A -Sir'--- \ /V" ` * '**'< 22 . MR.'KUSGRAVE: .Your Honor, may the witness finish 23 please. He's trying to answer.Mr. Carr *a question, and I believe 24 he's entitled to finish without being Interrupted at this point ^-` , "^ " . J . ; : ' ' ' -J / : ,L* * . P ' -,v1 . V 1 THE COURT: Objection is overruled. Hr, Carr, you 2 may proceed. ,. ' ",'i *' r 1 3 Q What I'm asking, Mr, McPhillips, if you can confine r *` * i 4 yourself to what I'm asking, you have said In your memo, earli:: 5 memo of Juno 14th that you don't want to roly upon the recent 6 sample that says there's no TCDD. 7 A Umhm, 8 Q -- in your product, but in your July, '79 memo you 9 disregard that recent product sample test and go back to over 10 a year before to use that as the example of and support to say 11 to your customer there's no TCDD in the product. My question 12 is why didn't you use and rely upon the recent sample that you 13 knew of before June 14th, *79, .why didn't you rely upon that, 14 sir, Instead of telling him about a sample that's tested In 15 1978? 16 A Sir, I wish I could answer that, but 1 just don't 7 recall my thinking. 18 Q tefc me help you a little bit. If you referred to the 19 old test and didn't tell the people that you had more recent 20 tests, you could be technically correct by telling them that 21 there was no TCDD in the old, more than a year old test, but 22 you could not tell them that if you used a more recent test, 23 because you knew at that time that your more recent tests 24 showed TCDD in one or two or three of them, whereas on test 1 did not show it, and for that reason# Mr. McPhillipa# you \ 2 decided to ignore both the good and the bad results of 1979 in 3 order to be technically correct by referring only to the 1978 4 results# isn't that correct# Mr. McPhillips? 5 A Ho# sir# I don't think so. 6 Q Mr. McPhillipa ' 7 A X said X don't recall ay thinking, sir, and you're 8 putting speculating# and X really don't recall my thinking 9 process at the time. 10 MR. MUSGRAVE: May my -- may I object to counsel's 11 question which is obviously a speech# not intended to be a 12 question, because the witness has ald he doesn't recall hie 13 thinking and request that it be stricken and the jury instruct 14 to disregard it. 15 THE COURT: Objection is overruled. It was a proper 16 question. 17 Q Let's look at the second paragraph of Exhibit 1556. 18 You tell the customer there that you decided to analyze all 19 the chlorophenols for TCBX) using the most current methods and 20 equipment available. How# of course, that's true# you did 21 decide to do that# and you have that result there in front of 22 you dated June 26th# 1979. So you told them that# but now you 23 say here, we'll be developing these data over the next several 24 months. If there is any change from our previous finding, we \r : 177 ** 1 will notify you accordingly* don't you sir? l' , 2 3 4 ".' 5 n 6 ' .7 A . That's what X state, sir, yes# sir, Q. So what you're doing is you're telling them that you're going to look at it and if you find anything that's different, even if there fis .ny change? from, th previous finding, 1- , - jf % -V , " they're going to be notified when in fact, you have the data 2'.n*L'^^ 'r:t' i /.'<- i'i,-. .\ )M J ^ , (V in front of you, you had' in .June of-1979, a good two weeks 8 before this l' etter 1w.as w"r- i-ttte*n, J,1an. d you t',-ef lWl;' t h> eAm"1,'1th/at if there ,9 any change, we're going to let you know* -]0` 11 12 13 14 'V- . 15. A X did not have this dat, sir, Q , Wall," let's / A . You said I, and X did not, .air. Q Let's just suppose that data did percolate down aoonejr or later, didn't it, sir? ^ 1 >. A XVmaur -- well; tome? Hot necessarily to me, 16 - 17 .f, 18 'j .J0 ' 19 20 21 'sir, no. * ` - ~J Q Well, did you go but and a s k ^ A X wouldn't know how to interpret all this date, sir, Q Did you go out' and sk whether or not there was any change from the previous findings? LA If I recall, almost all our\ -- after the spillpot a 1 .22:, 'caustic change and what have you, sir, we found -- X don't ' 23 think we found any taore PCP, and if w did, it didn't present 24 any hazard he all. BAYONNE, N,J. 07002 FORM IL, 24 B Q Wall, X'ci not even asking you whether or not it presented a hazard* but you did find, sir, that, there was, a \ change when .you came up with -r- you're telling this man now back In '78 we've got .nothing, but we're going to check, and, if we find any change from those previous findings, we're going to toll you. Acid you did find a change, in your *79 product has' got TCDD in it, doesn't iti sir?[\ ^ ;jv'...t ji''.;l,; C,;:;... A Th analysis of One lot, yea, sir.,. 't "V Q No, of store titan one lot;, We've.poihthdiout two to you in February of '79.,and in May of '79 ., Two lots has TCDD. -.. j -/ V \ * V{ r- ;7J;,VVi"\ Don't you see that, sir? V "A ^ I see that, sir, : Q So there was a change, wasn't there, sir, from your -*78 findings? ` ;v' - ' 'r v . - f , : /v 7- V ` ,- A ./ Sir ,. I would have to ask my research people what the . change, what the significance -- .' Q . Nell, Mr. McPhillips -- A .f* of the data is, .sir. . Q Mr. McPhillips, if'you find TCDD in your samples tested from February of *79 and if you find TCDD in your samples tested ilay.27th of '79, there is TCDD In your product, isn't there, sir? .. /; ` A `The^way you phrOse it, yes,,sir, . 'Q And.that isLa change from your 1978 findings, where/ `. - m 4 179" 1 1 there was no TCDD in the product, isn't ;it, sir? ' 2 ^A. At the tithe, yes, sir, ' 3 Q But you did hot notify the customer of that change, 4, did you, sir, of that finding, did you,..sir? 5 A I don't recall; ho, sir. X don't think they war a 6 . customer of ours .after, sir, because, as I said before, Tennessee 7 Eastman was not a customer and Givaudan wanted a higher assay "8 product and I don't think we everlsupplied them again, sir. ',V Q Mr. McPhillips, they returned products to you because ' ' .V V. 10 they were unacceptable,-fl havea' mama written. to'Gets from the 11 Givaudan Corporation ih whs--i.:c'Lh-..>th"etyli''ref^ e*rV;y're. di;t 't,o Puurr<chase 1^f v Order 1': s- . * ; ; , v* - v y _ ` ,' ' 12 Ho. 22983 and they send back unacceptable drums to you. 13 A - Yes, sir, - vr\_; LVlj' f '?;.'* t(,.;-li' (`v}j` . , I^f;* v", t fr.'if J.r 't 14 ; MR, MUSGRAVEr ,That's not Tennessee Eastman, is it, 15 .. Mr." Carr? y- ' ^. / " ` 16 / -MR; CARR: No, the exhibit X have given him does not. -17-' refer to -Tennessee Easthan . It refers "to -G i v a u d a n ^ 18 Q . You see that letter, sir? 19 - A Givaudan. ; v. , 20 21, ' Q You see that "letter, sir? :. A ` -I see it. " ``; ' ` *" 22 Q They werb a customer of yours, weren't they? 23 ^ A I said after, in.May they were not a customer of ours - i' ^ 24 > i . 1^ t1 >' , ( I said In .July, after July they were, never a customer of ours. B4Y0NNE, N.J. Q 7 Q 0 2 ' FOAM IL 2 4 B y W- 180 1 Q Did t h e y l e a m rr-?' ` - .2 '3 A That's a May. letter*. ,1 said July. '. \ Q Ohf I see*. So you were technically correct in that ^ ' '4 a of July they were not ^customer, is that right, sir? - 5' A , In fact, it was before that, sir. -.- 6 / Q I'm sorry? .7 A In fact, if I recall, it: was even before, that* That 8 material was quite old when they, sent it back to us* 9 Q Let ao propose something to youMr* McPhilllps* - i?V,10, A Yes sir*- ./ ' \ ; 11 , Q Do you think it's possible that Givaudan, or however 12 13 14 15 16 17 18 19 20 21 22 23 you pronounce their name was inquiring^ aboutdioxiris because they don't want to use something or expose their employees or expo"se their custo- mers nt' oj s, so.'m. eJf ti 'h ing ft<*ha,*t1'. s' -1got' -<:TiC's'D; D 'in it? Do you think that, might possibly be the reason they asked you the . r' . -1" ' J: - ' '7 * f, v V t ' v ft , ; ' V /' * ' question? /. *V ,**'*'*' ' '' '' - ' A Sir that letter, there is an expression of -- Q Gould you answer that question please sir* , A .1 can't speculate of why they asked the question sir, but it's a potential yes*. ,^ .Q And they have the material on hand.that you sold them, some of which may bo the batches that were created in February of *79 that has 230 parts per billion of TCDD in it; that's . / ' 24 possible, isn't it sir? \ ' ;*? BAVONNE, N.J. .07001 .FORM 1L 24 B  j. - - A X don' t know, .`sir,L It' possible, I guess. v .^ Q It is indeed possible and it is also possible that if there is TCDD in the product, that they would sand It back -; to you as being unacceptablej that's'possible, isn't it, sir? ' A The reason they sent that material -- Q Excuse me, could you answer that question, sir. A That could be possible, sir.' Q YcSw -. A The way yo asked thequestion. Q .; If they sent it babk to~you because it*s got TCDD in it, it would not.then b exposed to their workers, would it, sir?. _ / i - -,'V; Lr/ ' .' , . A The way you speculate, sir, that's right* , . 'Q.' . And it would not then be incorporated in their products,-thoir hospital disinfectant!and Would not then be or whatever they're using it for and would not then be exposad v \ vVj /'{ 1{ *... *; to their customers, isn'tie^sir? ;" A That's a scenario,, ,sir; -to,which you can;draw that conclusion,; but you did:,not put. that latter in. evidence, and that letter is asking about assays. Q Mr. KcPhllllps, do you-understand the way that this . caae goes? Mr Musgrave Lif he want that letter, in evidence, he can put ,it.in. He talks about impurities in Mother lots that is not relevant to the TCDD.question, and therefore, I'm 1 not asking you about that. If ha thinks it's relevant, he can 2 bring it up. He's got a copy of it, it's open, so. Hr. McPhill 3 you don't needto make the case. If he thinks it's important 4 to bring up, he'll bring it up. I'm asking you now specifically 5 Hr. McPhillips, as to whether or not isn't it a fact that if 6 they don't use the PCP that has the TCDD in it, that their 7 customers won't be exposed to it? 8 A If the -- obviously if they turned it back, they're 9 not exposed to nothing, but that was not the reason they turned 10 it back, sir. 11 Q Mr. McPhilllps, I'm not asking you that. They didn't 12 know that it was in there, so obviously they could not have 13 turned it back for that reason. You didn't tell them it was 14 in there. How can they turn it backif you don't tell them, 15 sir? They asked you specifically about it and you didn't cell 16 them. How can they turn it back, sir? 17 A Sir, you don't have to yell at me. You know, I'm 18 right here. Rephrase the question. You're a little too loud. 19 Say it again, sir. 20 THE COURT; Gentlemen, approach the bench for a mlnut< 21 (The following proceedings were had at the bench out 22 of the hearing of the jury.) 23 THE COURT: I've had it with this guy, and I'm going 24 to hold him in contempt. I'm going to have the Jury taken out 183 1 '2. 3 4 5 6 7 J8 9. 10r n ,12 " 13 , 14 15 ,16 17 18 19 2 21 22 , 23 24' now, we*re done for the day,, and werro going to do it now. MR. MUSGRAVE; tfliat for, sir? For Mr, Carr yelling -L 1n, ^ ` ` at him telling him not to yell at him? \ THE COURT; Mo 'He has been so insolent, and he has violated everything I 've told him to do. I have had it with the games that these witnesses MR. CARR: Your Honor, let rae suggest here that his insolence hasn't been to the Court, It's been to me, and I'm willing at this point, to, put up with it, and I would ash the Court that we hot recess; for that purposebecause I, -- I: would like, to get through with this witness, and not to have another pathway that would goLdown that would take up our time, and I wouldaok that the Court hold that in abeyance and see if , * r^ K",, . i1 " - there is any more like It instead of at this time -- THE COURT: Okay. At your request I'll hold it in abeyance; , r , ` 7 k. MR. MUSGRAVE:",,.Co' uld. I have a m-oment- to ta\lTki with the witness in view; of t^e Court's >r ; ^ THE 'COURT:- After court.you may. -ji-i v ' , v', "r j; - ' < (The following proceedings -were" had in the. hearing ..... . v V-kr-.- ^ - and pre.enc of the Jury.) .' , ";V v.'f'A ii'V i-"- ' Q Mr. McPhillips* :you.;never notified the .customer that there was TCDD in the product, did you,.sir?: f / ; -r-' > 1V/'?* f>-'ts, '`' i>',r A >..Nay sir. ."^ ,- i w- X. . ,FORM IL 24 B * -* 1 1 1, i * t 1 ^ -jr>* * i* 1 Q And therefore they could hot use that as a reasor^ to 'J ', L - * f^ 1' l T ' - * *L- 2 sand it back, could they, sir? . . % i 1v I ** rV 3 A No, sir. = ', 4 Q Now, you told us earlier, Mr. McPhillips, that the 5 customer has .a right to know if they ask if there was TCDD in 6 the product. Do you recall that -- ' 7 A *Yes, air. 8 Q -- telling us that earlier? ,; 9 A Yes, sir. ,, .. , j l (fr*n *, - i 1 10 . Q Now here^is a -customer that asked, he's saying, he's. 11 meeting your definition of his rights, not mine and not anybody 12 else's, but your definition, but you.didn't tell him about the 13 TCDD in the product, did you, sir? 14, A .Not .after July* sir, no, sir. v '' ^ " - l 15 Q And not before July either, did you, sir? 16 A . No, sir. 17 Q So It is entirely possible that he has part of that 18 654 that he's working with at that very time that he's asking-L 19 you the question, isn't that possible? 20 MR, MUSGRAVE* Object to the speculation, 21. Q If that batch was manufactured in February of '797 22 THE COURT * tObJaction^is*overruled./` r 23 , a \t j ` ^ fv 1Va* ,:;L-r ye' ^S- '^li. v\", A I guess -it's possible,*sir , yes; 24 Q So now here's a1mah;:i'.br;'\ia c^omv-vpa-:-n.1.y iLt' hvac t *s c'oncerned ~ 1i 1 ,''' T % 1 tf V . * > . ** f 1 enough about PCP as to ask you whether or not there's any XGDD 2 in it end he's wanting to know 3 A UmhiUo 4 Q You know that there Is TODD in PCP -- 5 A Not when I wrote that letter. 6 Q 0h& now you have that -- 7 A X stated June 26th, 1979 X did not necessarily say 8 that prior to July 12th letter. . 9 Q Well, what report did you have indicating that there 10 was no TCDD In your parachlorophenol? ' -- . jt, 11 A Sir, it probably was verbal from ~ to Joe Hetcalif:, 12 and Wilson. 13` Q Well ~ 14 A X don't get raw data like that. X primarily rely on IS th people, sir. 16J Q Hr. McPhlllips, if you would look at the memo, you 17, will see that there is a later batch of parachlorophenol that 18 does not have detectable levels of TCDD in it, two later batches 19 as a matter of fact. Direct your attention to Batch No. 662, 20 not detected In that although there is trlchlorodibenzo dioxin, 21 there is not detected.at totra; do you see that, sir? 662 is 22 parachlorophenol. 23 A Parachlorophenol cut. X don't know if that's the 24 finished product or sot, sir, X don't know. Xt says PCP cut. 1 Q Well* you sea that it hat got it in it whether it's > , J / * -r ` 2 a cut or not? 3 A X see that. 4 Q And If you look down at PCP at No. 671 you sea there*n 5 another chlorophenol, that is parachlorophenol without detec 6 table levels of TCDD; you see that sir? r A Ye# sir. 8 Q If you look down at MB67A that's a para rich cut, 9 it has detectable levels of TCDD, 21 part# per billion, doesn't 10 it, sir? 11 A It's right at the detection limit, sir, X think. 12 Q 21 parts per billion is twice detection limits, Mr. 13 McPhillips; 14 MR* MUSGRAVE: Object to reference to that in this 15 context. There's no evidence that para rich cut is a product. 16 THE COURT: Objection is overruled. 17 MR. MUSGRAVE: There is evidence to the contrary is 18 the only evidence in the case. 19 THE COURT: Objection is overruled. 20 Q And you look at PCP 708, MB708, another batch that 21 hasn't got detectable levels of TCDD in it; you see that, sir? 22 A X see the MB, and it says none detectable. What it 23 is, I don't know. 24 Q Now, what you see there is if you leave out the PCP PCNGA D CO. BAYONNE. N.J* ft ^ 1^7 ^"A 187 *1 A. ,;-v ^ : if; >, A , J.. * 1 that you call a cut, fchatiis; 66?^; and we won't go through thatrtJ-\ 2 at all, you see two batches, tested without detectable levels;'-' 3 don't you, sir? 'r 4 A Yes, sir. \,`f \y:, <v 5 Q Mow presumably It's one or both of those batches Mr, 6 Wilson' told you about that^is -- trha, t Fcausied your June 14th 7 memo 1555, is that correct, air? 8 A 1Sir, X don't know. m X don't know what his position r 9 where he -- his position came from and where the PCP. X woul 10 not know the details -- he told me an analysis -- a sample 11 had no TCDD, one sample, to which X responded. Where he got 12 that data, sir, I would not know. 13 Q Well he had the Information on the earlier -- if 14 he's in charge of that business, he had that Information eariielc, 15 did he not, about the February of '79? 16 A February? X would imagine he would have February of 17 fl79 data, yes. 18 Q Mr. KcPhillips, If he had it, you should have it, 19 should you not, sir? 20 A On a technical paper like this? 21 . Q Wo, not in a technical paper, anyway, however you got 22 your information. If he had it 23 A 1 probably was told it verbally, yes, sir. 24 Q But you told your customer that you ,didn't have it, t 1 didn't you sir? 2 A Over a year ago yes sir. 3 Q And yet you had/it./ 'Mr. McPhlllips, this customer, 4 exercising the only right that you'll give him, that is the 5 right to ask asks the question and you don't tell him do you, 6 sir? '* l r * , ,^ * 1r 7 A Sir at the time I wrote the July 12th memo X might 8 not have been aware X probably was not aware of the June 26th 9 data or any data. 10 Q VJhen you became aware of it, did you aver send him II another letter? 12 A Sir, X don't know if X would ever become aware of it. 13 Q Did you ever send him another letter? 14 A No sir. I said after that time he was probably not IS a customer. I really don't recall. 16 (Plaintiffs* Exhibit 1557 was marked for identification 17 Q Handing you Plaintiffs' Exhibit 1557 I'll ask you if 18 you recognise that along with this blowup as a letter written 19 to the Tennessee Eastman Company? 20 A Yes eir. 21 (At this time Plaintiffs' Exhibit 1557A was marked for 22 identification.) 23 MR. CARR: Offer both of those exhibits -- I'm 24 sorry 1 MR. MUSGRAVEi This is 1557? 2 MR. CARR: Yes. 3 Q 1557A If a blowup of 1557, la it not? 4 A Yea, sir. 5 MR. MUSGRAVE: .1*11 object -- 6 MR. CARR: Offer 1557 and 1557A into evidence. 7 MR. MUSGRAVE; ,We would object on the same basis as 8 we objected to 1556, your Honor. 9 THE COURT: Same ruling. It's Admitted over objection, 10 (Exhibit passed to the jury.) 11 Q .Mow, Mr. KcPhillips, this Is a letter very close to 12 the language used in the Exhibit 1555, isn't that right, sir? 13 A Yes, sir. 14 Q This time though, he has read in the Chemical Week 15 that the material that spilled in Sturgeon had TCDB in it 16 apparently, is that correct, sir? 17 A He referred to the May 23rd article, yes, sir. 18 Q And that is the article that mentioned that there was 19 TCDD In the chemical that spilled at Sturgeon; do you recall 20 that, sir? 21 A X don't recall exactly what it said, sir. 22 Q Well, this person in any event wants to know, that 23 makes them think is there possibly TCDD In your parachlorophenol 24 correct, sir? f / ** y* :\ , */ m 1 . A Yea, sir. *.' .2 Q And you troll him again the data shows no TGDD at work 3 that was dona over a year, ago? 4 A Ys, .sir* ; " 5 Q But you don't mantion the work done more recently* 1 6 sir? 7 A No, sir* 8 Q How, are there ,any other ^-- 'a far as I know, Hr. 9 . McPhillips, I'll represent to you that these are the only 10 letters that were given^ta ub in -- that would boar a date 11. of '79. W@ have some 1981 letters written to Diamond Shamrock, 12 , , -<.V-, V f -,'**' ' }\'-`'` *: *''- <vi- ' and they're getting ready to go into Canada with 2,4 diehloro- n phenol, but in '79 these two. lttera, so far as I am presently 14 ' aware are the,only two letters sent to .customers o Monsanto 3 15.t relating to the chlorinatedphenols. Do you have any knowledge 16 of any other lttera, Mr; McPhillips? . A 1 letters? 17> 18 Q Yes .' ) ' 19 A Ho, air. - . 1 20 Q Do you have any knowledge of any memos relating to 21 telephone conversations? 22:" A . Nemos, no, sir. Hell, yeah, there's a memo in terms 23 of a conversation, 1 think, with regard to FaXlek-Lanesro, 24 Q And where is that meteo? *^ 4, > i* 1 A Well, after a conversation or discussion I had with 2 Fallek-Lanero some summer and they ware talking about dioxin 3 in 2,4 DCP and the USDA, and I remember talking to Jim Wilson 4 and telling Jim Wilson that Fallek Is getting soma questions 5 from a -- * ' ' .1 t :* a, 6 Q Well then, you do recall the memo that 1 mentioned 7 to you don't you sir? 8 A What mama? 9 Q , About the USDA. 10 A USSA, ,1 don't know who .it.was - e 11 Q Sir? ^ ;; ; i \ .-; /- t*.` ' ->r - ^ ' =*' '': 12 A X don't know who ;it was, but X recall e. conversation 13 when X called to talk to Jim Wilson 14 ?1 Q v, that he told you about? fl *, l( ` ^ ( ` ' ^: 15 A X told Jim about the inquiry. Wow, what he did after 16 that, sir, X don't know what he did, whether he called Fallek 17 or talked further to USDA -- 18 Q that's a notation that another customer had been 19 making soma inquiries some L- tim"e of the USDA as to whether or 20 not your product contained TODD.. 211 A But other than that X can't recall any Char 22 Q that's a mewo about an inquiry. My question Is do 23 you have any memo, any letters any report indicating that you 24 told any customers that your chlorinated phenols contained 1 dioxin or TCDD? 2 MR. MUSGRAVE: Ifl this in 1979 or *807 3 MS. CARR: In *79. 4 A X don't recall as to levels and everything else of 5 dioxin the way you stated that* but I don't recall any oth-er ; *\*,, 6 letters going to customers* sir. 7 MR, CARR: Your Honor* this is a convenient place for 8 us to stop. 9 THE COURT: All right. Ladies and gentlemen* we'll 10 break for the day at this point in time. We will resume again 11 tomorrow morning at nine o'clock. 1 would remind you* as I do 12 for any overnight breaks that you're not to read* listen to* 13 or watch anything about this case in particular or subject 14 matter in general in any of the media* print or electronic. 15 X want to thank you for your attention and cooperation. Court 16 is adjourned. Gentlemen could X see you at the bench for a 17 minute please, 18 (The following proceedings were had in chambers 19 following the dismissal of the jury.) 20 THE COURT: X would note that I have at this time 21 given an Order* copy of an Order to all counsel indicating 22 what matters on* :incamera inspection are to be produced and i 23 what are not* and this* X ballave* completes all Incamera 24 documents given to me for inspection* and X don't have a i > J ftri S/ \ ., * ' * w ,- ' . . - -v..` < - ., , , . 193 j >s .*;'v .t v *. 1 % specific count, but lust note th gnral aoount o documents,. " :'2_ 3 4. : 5, 6 7 I mould think that ...V-'. I havoordared that It be done end 1 t s^ . .. ' ' : ' ". ., L' > understand that it; could reasonably be done by end of business ' tomorrow. : ^ There are two discovery motions and one to shorten time, and 1 believe they/re\all yours; MR. CARR: Before we got to, that I'd like to know , . ,8 when we're going to get the Affidavits; of Compliance that were / ' 9 due from Mahoney and from Hcineman, because I do not want to 10 >.s^ rest untilvwe gt those Affidavits ofCompliance. ; . 11 THE COURTt Assuming that these are produced the .end ' 12 of business tomorrow, when can you gat the Affidavits? 13 MR; MASSIF: Well, your Honor, gee, I'd really like ' " 14 to talk to Mr. Hainaman about that but Xknow X think,we 15 16 17i 18 19 could get it if you Just without talking to >tii if I could . '-'f V > sort of preparatory on my remarks, reasonably soon thereafttr, your Honor; -, r-> : v^.,31 'i THE COURT: Well you don't know,what reasonably soon / - \ '' * , , v is at this point in time? 20 " MR.NASSIFi well, X mean -- ` .'l\ \ 21 22 .23 24 THE COURT: They're both in St. Louis. There's no 1 - 44 11 * 1 ' * . t , '1 *, , 1 \/ ,^ , reason it can't ba a day.;. ,;^ MR. CARR: I want to rest no later than Wednesday, and I don't want.to rest until -- BAYONNE. N.J 1 HR MASSIF: I don't know the status of Heineman 2 Affidavit* and I think I know the status of the Mahoney Affidayf. 3 THE COURTt X think since I'm ordering that this be 4 produced Tuesday it's now Monday afternoon I think Wednesday 5 is not a -* not an unreasonable time for those Affidavits to 6 be presented 7 HR* MASSIF: Okay. .We may have .it. Can I get to you 8 tomorrow? But I think Wednesday ~~ I'm not disagreeing with 9 you -- V `. _ V" ` v 10 11 t THE COURT: Okay. .. .. V1 - , - .r ' ,'' MR. MASSIF: I'm Just without knowledge of what their 12 status is. 13 .THE COURT) I,understand the situation. I'm expreesi^ 14 my opinion that Wednesday around noon or one o'clock would not IS be an unreasonable time to have those presented in term of 16 what has bsen indicated to tea as to the status of production 17 what has been indicated '. to me \ ' ' rss'.tv,o-,`thie v-Sta;tu;^s* of documents : is for Inesmsra inspection Nind*at the time table for production 19 of those matters which! hfivoorderproduced . s o X 'ta suggestIt, ., . '` ' 'W ^ - *" " ~ 20 that that's a reasonable time. 21 - * 1-;.-r,vy 'V*. '' -- MR. CARR: Your Honor in regard to both motions of 22 Monsanto we have no objections to their motions. f 23 THE COURT: Okay. What about the Motion to Shorten 24 Time?.' ^ * I MR, CARR: V* have no objection to that, 2 HR. MUSGRAVEi Rax, with ragard to tha Motion to 3 Product tha Madical Racords -- 4 MR, CARR: Wa don't hava any madical racords, I maan 5 you want documants -- wa may not ba abla to comply within 6 savan days on that bacausa wa hava to contact all of our people, 7 but I hava axpactations that wa will comply, 8 MR. MUSGRAVEi Okay. 9 MR, CARRi And if I don't wa alraady -- wa last waai 10 already askad our paopla to gathar tha material, so I expect 11 to comply, and if I don't, it's -- wall, I'm doing tha bast 12 that I can, 13 MR, MUSCRAVE: I understand, 14 MR, SEXGFREIDt Wall, for instance, if a latter -- 15 MR. CARR: Wa ought to ba abla to gat this stuff just 16 as soon ~~ 17 MR. MUSGRAVE: But you'ra going to hava your paopla 18 go to their doctors and gat tha racords? 19 MR. CARR: Of course not, 20 MR. MUSGRAVE: Oh, you'ra not? 21 MR. CARR: Of course not. 22 MR. MUSGRAVE: Than you'ra only going to gat racords 23 that they might perchance hava? 24 MR. CARR: That they hava a copy of ..t I MR, MUSGRAVE: Well, X Chink Chat we would request J 2 that this motion include that they be required to go and obtain 3 these records which are within their control since they are 4 their doctors that they've seen in the same fashion that Monsamf: 5 was required to get these records from Suskind. 6 HR* CARR: Your Honor, that's a completely different 7 connection between our doctors and Suskind* We've already giveih 8 them everything that they need to get the records, and they havtji 9 used those authorisations to get records. 10 THE COURT: Oh, you've given them all the authorized^ 11 MR* CARR: Your Honor, they have all the authorization -j-7- 12. Si they need. We're not about to go out and produce these records 13 for them. They have all the authorizations they need. 14 THE COURT: You've got the authorizations. IS MR. CARR: If you want more authorizations, why, just 16 give us more authorizations. 17 THE COURT: If you've got the authorizations, you 18 don't need a motion. ' 19 MR. MUSGRAVE: Are there any other doctors they've 20 seen we're not aware of though, new doctors? 21 MR. CARR: I have no way of knowing. Counsel. I'm 22 not about to inquire of them^ but once we get the bills from . 23 them, anything in their possession, it will surely show whether 24 ` or not there are new doctors. 'You'll have all the information' 1 that our people have, 2 MR. MUSGRAVE: Well,/you will give us new authori 3 zations? 4> MR. CARR: Any time you want theta we'll be glad to 5 give them to you. 6- . MR. MUSGRAVE: And all records that they have of any 7 kind would you be -- well* we'll just probably have to file 8 an Interrogatory on the new doctors then. WeMl just have to 9 do it in that fashion, X suspect. 10 THE COURT: If you've got authorizations -- 11 . MR. MUSGRAVE; Well, we may not have for new doctors 12 they've seen. 1 3 THE COURT: No, I understand whet you're saying, but 1 4 I'm talking about the old ones as far as updates are concerned. 15 I didn't know, I had forgotten that you had authorizations or 1 6 I was never told that. 1 7 MR. MUSGRAVE: Well, these authorizations are old, 1 8 and many times doctors, as the Court knows, will not honor 1 9 authorizations that are. too old, so In view of Mr. Carr's -20 MR* CARR: Any time you've sent us an authorization 21 we have executed it* If you want more, just send it in. 22 THE. COURT: Fine. Good. 2 3 MR. CARR: And. insofar as the Answers to Interrogator^ 2 4 that you sent us, we've already answered It. So w have the * `i 1 Motion to Produce outstanding and we* 11 comply Just as soon as . .fi 2 we can. 3 THE COURT: Fine great. Anything else since we're 4 back here? 5 MR. CARR: Hot from us. Judge. 6 THE COURT: Vary good. Okay. See you tomorrow 7 morning. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1 STATE OF ILLINOIS ) ) SS 2 COUNTY OF ST. CLAIR ) 3 4 r (k . X, MARSHA SCHNXPPER, one of the Official Court Repor 5 ters in and for the Twentieth,Judicial Circuit of the State of 6 Illinois and the Official Court Reporter who reported the pro- 7 cecdings had at the hearing of Frances E. Kenner, et el vs. 8 Monsanto Company, Ho. 30-L-970, on the 5th day of August, 1985, 9 i do hereby certify that the above and foregoing la a true and 10 correct transcript of the proceedings had at said hearing. 11 which proceedings were reported by me in shorthand and by ma 12 correctly transcribed. 13 Dated Chi*_ 13 ^ day of August, 1965. 14 15 16 17 18 Official Court Reporter 19 20 21 22 23 24 1 S M E OF ILLINOIS > 2 > TWENTIETH JUDICIAL CIRCUIT ) SS 3 COUNTY OF ST. CLAIR ) ) 4 5 I, RICHARD P. GOLDENHERSK, Circuit Judge in end for 6 the Twentieth Judicial Circuit of the State of Illinois, and J the sole presiding Judge,In the .aforesaid cause on the 5th day 8 of August 1985 do hereby certify that t have eKaminad the 9 aforesaid transcript of th proceedings and further certify 10 that the sesse is a true and correct transcript of said pro* 11 ceadings had in said cause. 12 Dated this day of August 1985. 13 14 15 16 17 18 19 20 21 22 23 24