# Appendix — Alcolac, Inc. v. Elam

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 817

## Text

EDITOR'S NOTE

THE FOLLOWING

PAGES

WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A
BETTER COPY CAN
WILD. BE ISSUED.

BE OBTAINED, A NEW FICHE

Supreme Court, U.S,
FILED

JUN 8 1989

SEPH F. SPANIOL, JR,

S8-19924>

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No.

In the Supreme Court of the United States
OCTOBER TERM, 1988

ALCOLAC, INC.,
Petitioner,

VS.

BETTY ELAM, et al.,
Respondent.

Volume I
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI TO THE
MISSOURI COURT OF APPEALS,
WESTERN DISTRICT

Alvin D. Shapiro*
LAW OFFICE OF ALVIN D. SHAPIRO

911 Main Street, Suite 2830

Kansas City, Missouri 64105
(816) 474-6824
Thomas E. Deacy, Jr. H. Gregory Skidmore
Deacy & DEACY SKIDMORE & WILKINSON
1000 Bryant Building 103 South Centre Street
1102 Grand Avenue Cumberland, Maryland 21502
(301) 724-3424

Kansas City, Missouri 64106
(816) 421-4000

Attorneys for Petitioner
Counsel of Record
3 1989

Leave to dispense with printing Appendix granted May 30

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

BETTY L. ELAM, CLARENCE ELAM and
LINDA LOU SANDERS,

ETHEL M. BERRY,

CARL C.* and JACQUELINE BERRY,
VIRGIL and DOROTHY BRADLEY,
EDWARD and MALVA GEHLKEN,

DAINIE and MARY LUCETTA LANDON, *
GWENDOLYN and JOHN C. LAWRENCE,
GLEN A. and BERNICE MILLER
CHARLOTTE A. and JOHN PHILLIPS,

DANIEL CHARLES and JOYCE PRYOR and
AMBER CROSS,

ARNOLD L.-, JOY R., JOYCE and
TAMMY SOMMERS,

JAMES R., KAY D., WILLIAM LANCE,
LISA and LYLE TURLEY,

GENEVIEVE and RALPH H. WITHERS,

Respondents-Appellants,

vs.

ALCOLAC, INC.,

Appellant-Respondent.

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No. WD 38,105
CONSOLIDATED

Opinion Filed:
November 1, 1988

APPEAL PROM THE CIRCUIT COURT OF JACKSON COUNTY

The Honorable Tom J. Helms, Judge

Before Shangler, P.J., Manford and Nugent, JJ.

*Died during pendency of appeal and the spouse was substituted as

party by order.

= setnia Hit nd GEREN ——S PNT MRT

ELAM, et al. v. ALCOLAC, INC.
TABLE OF CONTENTS
PART ONE

I. The LItIgation HIStCOTY. cccccccccccccccsccceccccesscsess 3
II. The Alcolac Plant:
Aw TUS DESIGN ANG OPSTOtION. ccccccccccccccccsceccsccese 4
B. Startup of Operations — 197B.cceccccccccccccsesceee 8
C. Plant Operations AEter WAPORA. ccccccccccccsccececcse 23
D. 1. Opinion for the Plaintiffs
The Alcolac Operation: Opinions of the Experts. 43
Zo Opinion FOF AlSOLHScvccccccccccccceccseccscccscsces 49
TIT. TRE CHOMIGSELS. cccncsccessscevsesccseccesccccccscscccscccecs 52
IV. Residents in the Environs of Alcolac
Ae The Plaintiffs-Witnesses. cc cccccccccccccccccccvecs 66
B. The Non-Litigant Witnesses
Lo POE CHE PLOINELELSS. .ccccccvcccccesccesecccseccss 68
2. For the Defendant. ccccccvcscsccccsccccescsccescce Il
V. The Medical and Scientific Evidence... cseeecceseeee 73
A. The Family Practitioner-Dr. Donald J. Allcorn... . .73
Be. The Immunologists. .ccccccccccccescccsccccccsccsccsccce 14
VI. A. The Medical Experts and Biological Causation
Por the Plaintifts..cccccccccccesccesccesccsescee 89
B. The Medical Experts and Biological Causation
Por the DefOnGant6. .cccccccccecseccscccecscccsccsces 230
VII. Submissions, Verdicts, Judgments... .cccccccccccccccses 245

PART TWO
The Alcolac Appeal on the Negligence Causes of Action......247

I. Judgment Notwithstanding the VerdictsS.....cccceeseeeee e249
A.

1. The Issue of Causation in Fact-The Principles..249
2. The Issue of Causation in Fact-The Argument....253

3. The Issue of Causation in Fact-The Biological
Causation Subelement..cccccccccccccccccccee 2/4

4. Disposition of the Motion for Judgment
Notwithstanding the VerdictS .....e.ee2222--281
B. Motion for New Trial

l. Expert Opinion Evidence. .cccccccccccccccccsccceecda
2. Diagnosis and Methodology... ccccccccccevece ee 2d4

3. Competency of Medical Opinion on "Nonmedical"
Causatlonecccccccccccccccccccccscccccscscccscsese 294
4. Undue Limitation of Cross-Examination..........300
Se IMNSTTUCEION NO. Deccccccccccccccsccccccesssecescedsia2
6. Increased Risk of CanCereccccccccvccevecscccseeed tS
7. Miscellaneous ErrorsS.cccccccccccccccccccceccse edad
a. Conduct of the Trialcccccccccccccceccvecece dso
b. Improper Closing Argument... ccecccecceveee dca
C. Evidentiary Errors. .cccccccccccccccccceceese330
8. Disposition of the Motion for New Trial........340
Bee SRO WELSGRES COBPGS GF AGCELOMs oc cc Seccsvecsesceccessese 340

(I)

PART THREE
Appeal of the Plaintiffs. ... 1. «+s ese ese 6 es ee 6 2 « 5G

I. Identical Verdicts as Ground for New Trial

A. A@twal Demeees . 64s ltl hl hh lh hv

B. Punitive Damages... ° os <> + 6% «4 « 2On

C. Submissibility of Punitive Damages ee oe ee ee ee ee ee
PART FOUR

Appellate Jua@qeent 2. . 6s ee es we et ee eet tll hl el
APPENDICES

A - Aerial view of Alcolac plant

B - Aerial view of the locations of residences of plaintiff and
non-plaintiff witnesses

Cc Foam storm on nearby property

D - Foam carried on Little Shaver creek

E Resume of testimony given by each plaintiff related to

environmental medical diagnosis ams
Official Alcolac memorandum concerning the failure of the

F -
liquid incinerator to function
G & H - Official Alcolac memorandum conerning excessive odor
emissions
I & J - Material Safety Data Sheets concerning risk of exposure
to epichlorohydrin
K - Resumes of evaluations of the immunological systems of each

plaintiff by Dr. Stechschulte, an examiner for Alcolac

L-1, L-2, L-3 - Typical SYMPTOMS CHART as completed and validated
by expert Dr. Carnow as to each plaintiff

M-1, M-2, M-3 - Typical PHYSICAL FINDINGS CHART as completed and
validated by expert Dr. Carnow as to each plaintiff

N-1, N-2, N-3 - Typical LABORATORY TEST CHART as to each plain-
tiff

O-1, O-2, O-3 - Typical DIAGNOSIS CHART as validated for each
plaintiff by expert Dr. Carnow

P-1 - SUMMARY OF SYMPTOMS by organ systems exhibited in common by
the plaintiffs as disclosed by history to Dr. Carnow

P-2 - SUMMARY OF ABNORMAL PHYSICAL FINDINGS exhibited in common
by plaintiffs as disclosed upon physical examination by
Dr. Carnow

P-3 - SUMMARY OF ABNORMAL LAB TEST VALUES by organ system found

in common for plaintiffs

Q-1, Q-2, Q-3 - Typical Alcolac diagnosis charts as validated by

Dr. Emmett and Dr. Kirby, examiners for Alcolac

(II)

This suit involves thirteen actions brought by thirty-
two plaintiffs against Alcolac, Inc. and plant manager Fischer
for injury to their persons and property from toxic spills and
emissions from a chemical facility in Sedalia, Missouri. The
actions, consolidated by order of the trial court, were in four
counts and each sought recovery of compensatory and punitive
damages. Only two counts were submitted to the jury: One, for
the diminished market value of the residences, sounded in nui-
sance. The other, for injury to the persons, sounded in negli-
gence. The jury, after a trial of more than four months,
returned verdicts against Alcolac and awarded to each plaintiff
on the claims for personal injury, $200,000 as compensatory
damages and $1,387,096.70 as punitive damages. The award for
property damage varied as to each claim. Alcolac thereafter
moved for a judgment notwithstanding the verdict or, alternative-
ly, for a new trial. The trial court denied judgment n.o.v., but
granted a new trial as to damages only as to each of the thirty-
ones personal injury verdicts.

The several plaintiffs appeal the order to set aside
the awards for personal injury damages on the negligence count
and the grant of a new trial on those issues. Alcolac appeals
the denial of judgment notwithstanding the verdict on both negli-
Gence and nuisance counts, the entry of judgment for property
damage on the nuisance count, and the entry of judgment of lia-

bility on the negligence count.

The motion for directed verdict by defendant Fischer was sus-
tained as to all the plaintiffs, and the motion for directed
verdict by defendant Alcolac was sustained as to the plaintiff
Edward Gehlken. Thus the causes of action of the thirty-one
plaintiffs who remained were submitted against Alcolac only.

2

PART ONE
The Litigation History

Alcolac commenced its Sedalia operations in May of
1978. In July of 1979 five of the thirteen plaintiff families
filed suit in Pettis County with complaints of injury from the
Alcolac operations. The five suits were voluntarily dismissed in
February of 1981. In December of 1981 the suits were refiled in
Jackson County, other suits were commenced, and eventually all
were consolidated for trial. Alcolac made answer to the peti-
tions. Alcolac also pleaded a multiple counterclaim. Count I
was for Abuse of Process: that the plaintiffs and others in
concert maliciously schemed to harass and force Alcolac to cease
Operations at the Pettis County plant, and to that end commenced
an unfounded suit against Alcolac in Pettis County, took no
initiative to advance the litigation and later dismissed the
Suit, but resumed the litigation in Jackson County = not for the
redress or remedy of any civil wrong, but for ulterior purposes.
Count II was for Civil Conspiracy: that the acts alleged against
the plaintiffs in Count I constituted a civil conspiracy. Count
Facie Tort: that the acts of the plaintiffs were
intentionally done with the purpose to injure Alcolac, and with-
out justification. The counterclaim sought recovery for compen-
Satory and punitive damages as to each cause of action. Alcolac
attempted oroof of the cause of action through the cross-examina-
tion of the several plaintiffs, but without avail. At the con-
against all the plaintiffs with prejudice. Accordingly, the

appeal and cross-appeal are from a final judgment and encage our

juaceaLtction to review.

What remained was a massive litigation of thirty-one
separate causes to action, joined for adjudication through the
amenity of consolidation, but tried, submitted and determined by
the jury as separate suits. It was a litigation which engaged
the jury from August 12, 1985 to December 23, 1985 [four and
one-half months] presented one hundred and sixty-five witnesses
as well as hundreds of exhibits, and is recorded in ten thousand
pages of transcript. The counter-appeals contest not only the
validity of the submissions and the verdicts as returned, but
also the judgment of the court which validates the proof of the
causes of action but nullifies the money amounts returned by each
verdict for personal injury and punitive damages. Our review
entails the determination of the submissions, the validity of the
verdicts, and the propriety of the judaqments entered by the court

- among the other claims of error.

4
Hi

The Alcolac Plant: Its Desicn and Operation

Alcolac, Inc. manufactures specialty chemical products
for industry and commenced such operations in 1950 in the city co
Baltimore. It is now an international company. The special
chemicals manufactured by Alcolac include surfactants and func-
tional monomers. Surfactants are surface active agents or soaps
used in cosmetics and a range of other products. Functional
monomers are building-block chemicals used to prepare polymers
for adhesives, plastics, textiles, and such. The Alcolac manace-
ment recognized the dangers to the environment from such produc-

-~

tion activity and so launched WAPORA, an environmental management

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subsidiary, which sells advice on pollution control to industry
as well as government.

Alcolac then sought a site in the Midwest for an addi-
tional facility, and selected an area contiguous to the city of
Sedalia. To deal with the environmental concomitant of the plan-
ned facility in Sedalia, in 1975 Dr. Vsevolod Blinoff, founder
and chairman of Alcolac, designated the top executives of the
company as an ad hoc committee. They included Charles Anderson,
Alcolac president, Peter Bouroff, Alcolac vice-president, Dr.
Jacob Bregman, president of WAPORA, and Blinoff, himself. It
befell Bregman and WAPORA to design the environmental control
system for the Sedalia facility. The design Bregman and Blinoff
envisioned was a model of environmental safety - a plant [as
described by Bregman] "that could make products that were toxic
and hazardous and yet keep them in such a manner that the envi-
ronment would not be affected." It was the specific Blinoff
instruction that Bregman and WAPORA design and construct "a zero
discharge plant" - a state of the art model. Anderson, president
of Alcolac and an accountant by training [described by Bregman as
"a bottom line kind of guy"], opposed many of the environmental

controls as tso0 costly and "a lot of baloney." The design was

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n" olen hae! {= - as . . ~ } )* - 4 129
The composite facility included three production build-

or the manufacture of monomers, and an environmental

rol building 2 The production from both the surfactant and

monomer plants resulted in wastes, both in liquid and vapor form.
It-was the design of the pollution control processes at the plant

to remove the organic chemical contaminants from the wastes, and

“See Appendix A. The Alcolac facility also included four bio-
Gesradation ponds, whose function the opinion describes, as well
as a warehouse and lakes.

to expunge their odors, before emission. The design provided for
carbon filters and scrubbers to remove the contaminants and odors
from the wastes, incinerators to consume the organic matter
removed from the liquids and vapors, and pipe lines to emit the
liquids and stacks to emit the vapors. It was the theory of the
design that the pollution control processes would render the
otherwise toxic and odorous wastes harmless to the environment.
To dispose of the liquid wastes, underground pipes ran
from each of the three structures to four bio-oxidation ponds.
There was also an underground pipeline between the monomer plant
and the environmental control building. It was the function o
the bio-oxidation ponds to degrade the contaminated remnants
Gischarged into them through the conduits from the Surfactant
building and the environmental control building. The bio-oxida-
tion ponds were designed on the same principle as any municipal
sewage treatment lagoon: the ponds were filled with plain water

and the bacteria allowed to develop: as the wastewaters [theo-

retically scrubbed free ang filtered of contaminants] are gGradu-
ally introduced, the bacteria degrade them. Thus, the design, as

applied to both the surfactant and the monomer wastes, intends

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in the case of the soap plant, the wastes were to be
treated by acid scrubbers to remove the chemical residues and
odors from the liguid and vapors. The liquid was then effused
into the biopond and the waste vapors, then also cleansed of any
acid mist, were emitted through the surfactant stack.

In the case of the monomer plant - where the toxic
chemicals were used for production - one liquid waste stream

flowed into:

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suspensions of undissolved organic particulates, was piped into
the liquid incinerator for burning, then through scrubbers to
clean the odors, before emission into the atmosphere as vapor.
The toxic vapor wastes from the reactors in the monomer produc-
tion process were filtered through a system of carbon beds in the
monomer building and the organic residues burned off in the "fume
incinerator" before emission.?

The design intended, therefore, that the liquid emerge
from both che surfactant and monomer plants free of organic
matter and then flow into the bioponds as uncontaminated waste-
water. It was the theory of the design that the wastewater then
biodegrade through a series of four bio-oxidation ponds, each of
which retained the wastewater for thirty days before it flowed by
cravity. into the next pond, and finally collected [after the
120-day cycle] into a sedimentation pond for reuse - either for
field irrigation or as washwater for the plant reactors.

This system of controls notwithstanding, both the
monomer and environmental control buildings were designed with
valves meant to be unlocked only for the release of wash water

orm water to the bioponds. Instead, operators in the

Tne WAPORA design for the Alcolac plant at Sedalia selected the
carbon adsorption system for the control of the pollutants from
the monomer production process as the ideally efficient alterna-
tive. It also proposed "scrubbers" to cleanse the liquid waste
from the monomer production, but only "([iJ]f£ operational testing
shows that a potential environmental problem remains after these
meascres are taken." It became evident to the Missouri Depart-
ment of Natural Resources [the official agency with oversight of
tne Alcolac operations] that the system for pollution control, as
installed and operated, was not effective to meet environmental
control standards. It was a condition of the abatement agreement
concluded by Alcolac and the Department of Natural Resources on
May 30, 1980 [as our discussion more fully delineates] that
Alcolac install two alkaline scrubbers to remove the acrylates
from the licuid waste streams and the gaseous waste streams from
the monomer reactors. They were duly installed by Alcolac.

monomer and environmental control buildings at times used the
valves to bypass the waste treatment features of the facilities
and pipe raw, untreated toxic chemical wastes directly into the
open air bio-oxidation ponds outside. Also, the wastewater from
the monomer process was intended for discharge into biopond one,
and that from the surfactant process into biopond two - [presuma-
bly, because the soap wastewater was more readily biodegraded
than the monomer wastewater]. Notwithstanding, it was the recur-
rent practice to emit both the soap wastewater as well as the
untreated monomer wastewater into biopond one, with the result
that the toxic monomer wastewater intermixed with the soap waste-
water and was borne cff the Alcolac premises as puffs of foam.
Notwithstanding also the sense of the design that the liquid
incinerator function as the means of disposal of particulate
contaminant wastes from the monomer process, the device malfunc-
tioned from the outset of Alcolac operations and, in mid-1981,

was discarded as a means for the disposal of toxic waste.

STARTUP OF OPERATIONS 1978

AKlcolac operates under license of the Missouri Depart-
ment of Natural Resources [DNR]. That agency has the primary
responsibility to enforce environmental compliance. Alcolac is
also monitored by the Environmental Protection Agency [EPA] and
the Occupational Safety and Health Administrations [OSHA].

Alcolac commenced operations in the Sedalia plant in
May of 1978. Some months earlier, in November of 1977, Bregman
had circulated to Blinoff, Anderson, Bouroff and Fischer [then
plant manacer], a memorandum cf "comments on the Sedalia plant

Start-up." Bregman had recently visited the facility and noted a

number of problems he wanted to be certain were corrected before

the onset of production. He explained: "They have to do with
pollution control systems, and very heavy emphasis on training
the plant personnel." The memorandum recommended, among others,
that all the pollution control equipment required for proper
operation of the plant be installed and tested before the "first
batch” of production; that all plant personnel "go through an
intense training session on the use of the pollution control
manual" (the Environmental Control Systems Operating Manual
devised for the plant by WAPORA];: that "[a] system of very close
checking of the bio-oxidation ponds for odors" be established to
ensure that "no noticeable odors from them get anywhere near the
property lines or the Alcolac building.“ These goals, Bregman
concluded, were never met.

Alcolac began production nevertheless some six months
later, and almost from the start the liguid incinerator and the
bio-oxidation psond systems were sources of complaint. The incin-
erator emitted vapors and hazes over the environs and the bio-
oxidation ponds emitted odors. Alcolac called on WAPORA to allay
these problems. Bregman assigned to David Boies, the engineer
who had designed the Alcolac slant, the liquid incinerator con-
cern, and to engineer Dr. Leroy Reid, an expert in the treatment
of toxic waste, the bio-oxidation ponds odor concern. Bcies and
Reid concluded the assignments and reported to 3regman.

Reid completed the first phase of the assignment in
July of 1978 and in a memorandum expressed concern that the
carbon filter system in the environmental control building was
used =o overload with the consequence that toxic wastes from the
monomer process were allowed to enter the bio-oxidation ponds. A
month later Reid resumed the investigation and found the bio-
Oxication ponds still toxic as well as odorous. Reid also

Giscovered on that second visit that the drain valves which lead

from the monomer building to the bioponds were not locked closed
as normal procedure intended. This allowed chemical spills in
the monomer building to flow directly into the waste pipes of the
environmental control building for discharge into the biopond
without any prior cleansing in the liquid incinerator. Dr. Reid
not only reported to Alcolac that the ponds were being contami-
nated with toxic wastes, but that the toxic chemicals lighter
than water could attach themselves to the foam created by the
aerators in the bioponds and be blown in the air or become vapor
- and so present a hazard to the environment. Dr. Reid also
recommended that an additional aerator be installed in the bio-
ponds to infuse the water with more oxygen, and so dispel the
odors. Reid also reported to WAPORA, by a later memorandum of
October 31, 1978, with copies to Anderson and Bouroff at Alcolac,
that the chemical data collected indicated that the biopond was
receiving loadings of over 18 times design conditions.

Reid continued the investigations into 1979. The
increments of chemical wastes from the increased production
outstripped the capacity of the bio-ponds to degrade the chemi-
cals so that a sludge accumulated at the bottom of the lagoons.
Ocers were emitted of the "rotten egg type, which were probably
from hydrogen sulfide." On Several occasions Reid experienced "a
burning type sensation to the odor coming off the lagoons" to the
membranes of the nose. His reports noted also that the acid
scrubbers in the surfactant building were not as effective as
expected so that soap flowed into the bio-oxidation ponds and put
an additional stress on a system already overburdened. Other

memoranda reported to Alcolac and plant manager Fischer that the

untrained, and not "capable of doing a proper job." A memorandum
to Anderson at Alcolac in June of 1979 reported other problems:

the rupture of a disk [a monomer reactor safety device] which

10

sprayed toxic chemicals into the air. That memorandum also
reported that a drain outside the environmental control building
discharged untreated chemicals into a ditch and from thence into
the atmosphere - among other numerous erratic environmental
practices noted as to Alcolac. Reid reported also that strainers
on the pumps in the monomer building clogged, so that the pits
overfilled with the consequence that the raw untreated chemical
waste flowed directly to the bio-oxidation ponds, still toxic.
Reid noted also on the occasion of another visit to the Alcolac
plant a spill of dodecylbenzene sulfonic acid at the surfactant
plant. He commented also that the environmental technician
[LeMaire] was untrained. He noted that the position was very
important "as any data he produces must be valid" and urged that
LeMaire be trained. Reid urged also that the employees be inm-
pressed with the requirement for good environmental control meas-
ures. He observed that the plant lacked a "Spill response
program" - a team trained and equipped to handle spills of corro-
sive and hazardous chemicals in order to prevent damage to per-
sonnel and the environment.

In August of 1979, the Reid memorandum cited evidence
oz chemical spills - which “probably violate either
r both Federal or State law." He commented, "“([bloth were seri-
or spills which could pollute either streams or
roundwater acquifers." That memorandum concluded with the
Summary: "There seems to be new problems developing at the plant
each time I visit," and urged management "to take a highly active
cle in enforcing the proper conduct of employees to reduce
dancer to the personnel health and to the environment." It

chemicals should not be toler-

rh

udec: “Haphazard handling o

ll

Reid submitted numerous recommendations to Anderson and
the other Alcolac officials on solutions to the bioponds pollu-
tion problems - with specifications, design calculations and cost
estimates - but every recommendation met resistance or delay in
implementation. In addition to the memoranda, Reid warned the
Alcolac officials that the environmental problems would exacer-
bate. The major concern, as he saw it, was that the chemical
waste from the increase in the production schedule "would over-
come [the improvement to the bioponds] we had planned before it
even got installed." The ultimate resistance to the recommended
solutions to the bioponds pollution problem was an economic
resistance "clear at the top" - Alcolac president Anderson. Reid
had the impression that Alcolac either did not have the money to
Spend or cid not want to spend the money.

Boies also pursued his assignment of June, 1978, to
investigate the liquid incinerator and also reported to Bregman.
Boles died in 1980, five years before the trial, so Bregman
related the results of that phase of the investigation. In the
course of the investigation in June of 1978, Boies paid a visit
to the woman who complained that the liquid incinerator caused
vapor and smoke to drift over her home, and Boies made apology.
Boies composed a detailed memorandum about that incident, Gave it

regman, and sent a copy to Alcolac. Anderson, irate that

Ww

to
Boles should have apologized, demanded that "Boies be pulled off
the project and [not] to be put on it anymore." Blinoff, the
founder of Alcolac and champion of "a zero discharge plant" had
Gied by then, and Anderson succeeded him as the dominant figure
in Alcolac. Thus, Bregman acceded to the Anderson demand, and
removed Boies from the Sedalia project.

Boies had written other memoranda concerning his inves-
tigation of the Sedalia project, but they were missing from the

WAPORA files. Bregman still retained a related document, however

12

- a typewritten draft of a proposed memorandum to Alcolac pre-
pared by Boies and submitted to Bregman, who inscribed his com-
ments. The memorandum in final form - circulated to Anderson and
other Alcolac officials - was also missing from the WAPORA files,
but Bregman reconstructed its content from the document at hand.
The memorandum was a catalog of “things that were remaining to be
done" to bring the pollution control systems to proper function.
One item commented: "No one person responsible for pollution
control." It meant, Bregman explained, that "Alcolac did not
have a trained competent person who looked at the pollution
control systems, made sure they operated right.” Another item
commented that the "sampling points on the vent absorber units"
were not yet installed, and hence "whether stuff was escaping
into the air or not and how much or what" could not be deter-
mined. Alcolac always responded "they were too busy running the
plant to do this." Another item commented that the major problem
as to water pollution control was that "a much higher organic
load than had been predicted” was emitted into the bio-oxidation
ponds. That is to say, the production of organic compounds at
Alcsclac exceeded the design level based upon the production
preciction provided by Dr. Bouroff. The result was that a much
higher organic load wound up in the oxidation ponds than allowed
or by the design. Another item commented that the Alcolac
employees were not using the record forms supplied by WAPORA to
monitor the bio-oxidation ponds.

Another "major basic problem" the Boies memorandum
mentioned was from the operation of the liquid incinerator, which

ed haze in the atmosphere. Bregman explained that the

ct

local residents were restive about that condition of pollution,
and the newspaper reported that uneasiness. B3regman assured the
citizenry at a meeting that "these things were going to be

solved." That condition apparently came to the attention of the

13

Department of Natural Resources, and the Alcolac officials,
Anderson and plant manager Fischer, in the company of Bregman met
with the agency in Jefferson City. Bregman and the others dis-
closed to DNR the plans for air pollution control, and the agency
was satisfied. Anderson informed WAPORA shortly after that meet-
ing that Alcolac would "handle all future dealings with the State
of Missouri" without "involvement" of WAPORA. The eventual
consequence rather was to remove WAPORA as consultant altogether.
In the interim, however, Bregman - as requested by Alcolac - met
with yet another citizens' group, an environmental committee, to
allay the concerns of the Sedalia citizenry and to assure them
that the air pollution problems would be resolved. Bregman then
Still believed that the recommendations of the Boies memorandum,
as well as his own, would be implemented. Anderson refused them,
however, because: "[I]t cost too much money."

Alcolac discharged WAPORA from the Sedalia project in
December of 1979. A month or so before, Bregman dispatched a
last memorandum to Alcolac president Anderson and vice-presiden:
Bouroff, among others. A copy of that memorandum was also miss-
ing from the WAPORA files. Bregman, however, retained a sketch,
written in his personal hand, from which the formal memorandum
was composed. It was a summary of past Operational problems a

Sedalia, the present state of those problems, and recommended

t-

utions. The memorandum noted once again, as before, the need

so
for a strong and experienced engineer for the maintenance of the
expensive and complex pollution control equipment, that the

employees be trained in odor detection and control, and that the

Stancard operating procedure delineated in the Environmental

rating Manual composed by Wapo for the

ct
O

=
Sedalia plant be observed - all recommendations already made
e)

Alcolac by WAPORA but not implemented. The memorandum also

14

informed Alcolac, once again, that the monomer plant was produc-
ing three times the chemical waste the design capacity of the
bio-oxidation ponds allowed. Bregman reported also that the
odors were caused by the "sloppy handling" of the chemicals used
in the monomer process and could pose a considerable toxic con-
trol problem if not handled correctly. It was communicated to
Alcolac, also, that a number of the chemicals used in the monomer
production had "significant air pollution potential” so that the
plant environmental control system needed to be flexible and
reliable. Among the chemicals specifically mentioned as environ-
mental hazards were allyl alcohol, dimethyl sulfate,
epichlorohydrin, ethyl acrylate, methyl methacrylate and

toluene sulfonic acid.

Bregman testified that Anderson refused to implement
the recommendations of the last memorandum, as he had the prede-
cessors, as too costly. Bregman deemed the environmental system
designed for Alcolac worthy of a national prize, and told Ander-
son that "if he would fix this up, we would have the best one
going" - but to no avail. In December of 1979, Alcolac president
Angerson removed WAPORA from the Sedalia project. Bregman cited -
as of that date of departure - the continued reluctance by Ander-
son to spend the funcs necessary for these essential pollution
controls: $150,000 to install hydrocarbon monitors: another
$299,099 or so for an aerator system to facilitate the oxidation
of the excess chemical wastes in the ponds due to unforeseen

reased production, and about $500,000 to $1,900,000 to redo

i
ra |
9)

tne liguid incinerator. Bregman reiterated as the "single-most
important factor" to a proper system of environmental control "a
nighly qualified environmental engineer to make sure that the

ems work and to give the fellow the authority to make correc-

01)
KK
“
ct

tions when they don't work." It was a recommendation Anderson

iS

EEE __ ee

"strongly opposed," because of the Salary entailed, and because
the "corrections" would involve "an Ongoing expense.”

Some two years later, after the commencement of suit
against Alcolac, Bregman heard from Anderson once again. As
Bregman related the incident, Anderson said that "there were some
kooks who filed a lawsuit" and he asked Bregman "to destroy the
WAPORA project file on the Sedalia project." Bregman refused the
request as “unethical, probably illegal and certainly unprofes-
Sional." Of the two files at WAPORA on the Sedalia project, one
disappeared altogether.

; Alcolac president Anderson was called by the plaintiffs
and was examined as an adverse witness. Anderson was a member of
the ad hoc committee appointed by Alcolac founder and Chairman,
Dr. Vsevolod Blinoff, and so was involved in the decisions on the
design and construction of the Sedalia plant - the environmental
control system, included. Anderson acknowledged that as early as
January of 1978, he was aware the Sedalia production process
involved many dangerous and highly toxic chemicals. He acknowl-
edged also the numerous WAPORA reports and recommendations,
written and spoken, during 1978 and 1979 [the first two years of
Sedalia operations] concerning the improvement of the environ-
mental control systems and that Alcolac was not willing to spend
money tS implement them all.

They did [according to Anderson] use the Environmental
Control Systems Operating Manual prepared by WAPORA at the
Sedalia facility.4 Alcolac did purchase one of the eleven

hydrocarbon systems recommended by WAPORA to monitor chemical

_— ee we we we we owe we we oe ee

There was some intimation in the Bregman testimony, also, that
Alcolac installed some sort of aeration system in the biopond,
Dut apparently not of a Gesign WAPORA considered effectual to
degrade the volume of additional toxic chemical waste from the
increased production.

16

emissions. That monitor did not function, however, and Alcolac
depended on periodic samples taken from the stacks and dispatched
to independent testers - "several times over a couple of years" -
in lieu of the analytic monitors WAPORA found essential to de-
tect, warn of and control the toxic emissions. The liquid incin-
erator had not functioned effectively from the outset of produc-
tion so that in May of 1980 [after the dismission of WAPORA]
Alcolac vice-president Bouroff was prompted to report to presi-
dent Anderson among the items of "Progress As Of May 1980":

Items 1 & 2: Our liquid incinerator has the
poorest performance ever seen. Most of the
time it is out of commission due to all kinds
of mechanical problems. It is an absolute
waste of time and money. We consider it a 100%
failure and the most costly operation. Also,
part of our environmental problems_were/are
caused by this piece of equipment.

The malfunction notwithstanding, Alcolac continued to use the
incinerator as the mode to dispose of the liquid waste. The
result was that the waste was only partially incinerated, if at
all, so that the residue was vented into the atmosphere still as
toxic, or even more so, than before. In 1981, the use of the
liguid incinerator was discontinued altogether. The hazardous

waste intended for disposal by that method was hauled away there-

Anderson recalled that during one of his periodic
sojourns at the Sedalia plant - in 1978 or 1979 = he had occasion
to visit Charlotte Phillips [an eventual plaintiff} at her home
north of the facility to discuss a complaint of odors. He never
Knew of any incidents of odors from Alcolac “going beyond the
property boundaries" and contested her testimony that on the
occasion of that visit the odors were s0 pronounced "that every-

one's eyes were watering and people were choking,” including

See APPENDIX F for the full text of the document

17

Anderson, himself. Nor had Anderson ever seen foam from the
bio-oxidation ponds “blow beyond the bounds of the Alcolac prop-
erty" except for a photograph in evidence which depicted such an
accumulation beyond the bournes of Alcolac. He conceded, how-
ever, that "[w]e have been cited by the DNR [Department of Natu-
ral Resources] for odors that have gone off of our property
before." The numerous complaints of odors from Alcolac made by
neighbors of the plant, he said, were personally investigated and
never corroborated. The complaints of odors, Anderson said, were
unfounded. Anderson conceded that he was advised that the bio-
ponds were regularly being overloaded, but on one occasion only,
and then by Dr. Reid. He acknowledged that Alcolac employee
Joseph LeMaire was the person Dr. Reid alluded to in his 1979
report as the environmental control technician totally untrained
and incompetent for such a position. Anderson was adamant,
however, despite even the testimony of LeMaire to the contrary,
that LeMaire functiones as a maintenance worker - not an environ-
mental control technician. Anderson acknowledged that Alcolac
officials had met with the DNR some ten times since 1978 concern-
ing the emission and odor problems at the Sedalia facility. He
Genied any overture to Bregman to destroy the WAPORA files conse-
gGuent to the initiation of suit by these plaintiffs.
Joseph LeMaire was employed at Alcolac between August of

1977 and January of 1984. His testimony as to his employment
sunction and the regularity of the plant operations was in essen-
tial contradiction to that given by Alcolac president Anderson.
His service with Alcolac, therefore, encompassed the entire period
of the WAPORA presence there - and beyond. LeMaire came to Alco-
lac at the age cf eighteen years as a maintenance worker and

roundskeeper. He had dropped out of school at the 10th grade,

but later gained the General Equivalency Diploma. That was the

138

extent of his formal education. In the summer of 1979, the em-
ployee in charge of the environmental control building was dis-
charged for drunkenness on the job, and [according to LeMaire]
without training or even the guidance of an operation manual,
LeMaire was placed in charge of environmental control. He was
accorded the title: "environmental control technician." LeMaire
described the process by which the environmental control building
devices were designed to function: the liquid waste stream from
the monomer plant [where the most toxic chemicals were used] was
conducted into a sump pit in the environmental building and from
there was filtered over charcoal Calgon units and the liquid, as
treated, was then discharged into biopond one.

LeMaire described episodes of repeated chemical spills
at the plant. Toxic spills were often "push[ed] down the drain
witn squeegees.” The valves which controlled the monomer drains
were kept open as a matter of course so that the spilled toxic
liguid flowed directly into the environmental control sumo pit and
was allowed to discharge into the biopond without completion of

harcoal decontamination process. Also, on occasion, the

qt
oa
@
0
—_

—

environmental control drains would become so overloaded that the
waste liguid backed up, and the waste was routed around the envi-
nmental control filtration system, still toxic, directly into
the biopond. On other occasions, the toxic liquid overflow was
Simply allowed to drain from the environmental control building to
utdoors, and from thence into Little Shaver Creek. LeMaire
d detect the odors of toluene and allyl methacrylate, among
other toxic compounds, from these "washdown waters" from the
monomer building. LeMaire also described occasional dispersions
of chemicals into the atmosphere from explosions in the monomer
plan= [a phenomenom noticed by the WAPORA report of Dr. Reid to
colac president Anderson]. The exposure to these toxic wastes

Ourned the eyes, irritated the throat and impaired the breathing.

19

LeMaire described the odors emitted by biopond one as of "rotten
eggs or a bad sewer system," or sometimes, "a sweet smell, or a
sour, bitter, smell," depending on which untreated chemical wastes
were in the pond.

The “washdown from the soap [surfactant] plant" also
collected in bio-oxidation pond one. Thus, when the chemical
wastes from the monomer building were released directly into the
pond uncleansed by filtration, they mixed in that toxic state with
the suds from the soap building. Those suds, LeMaire observed,
left the Alcolac premises "like a Snowstorm" whenever the wind
blew, and at times built the suds to a height of "close to 15, 20

utered in protec-

Oo

Lemaire and the other workers, acc
tive gear, attempted to control these occurrences with sprays or
other such substances.

LeMaire recounted that during his service at the Alcolac
plant, the Department of Natural Resources made periodic inspec-
tions. Alcolac received advance notice of the prospective inspec-
tions and "cleanup parties" were held to prepare the plant for the
inspectors. The agency discontinued the inspections when the
fis commenced these lawsuits, and then "the cleanup parties
Stopped." LeMaire was terminated from employment in January of
1984 shortly after he suggested to Alcolac president Anderson and
vice-president Bouroff that the Missouri Department of Conserva-

tion be summoned to investigate the death of numerous fish in a

te)

pond which adjoined the plant. Anderson did not recall the epi-
sode, although he acknowledged LeMaire was fired. It was the
installation of a twenty-year-old with no training [LeMaire] as

environmental control technician which prompted Reid to comment in

a WAPORA memorandum to Alcolac that the appointment "made a joke

of [the WAPORA] recommendations."

Paul Faulconer worked at the Alcolac plant and con-
firmed, and enlarged on, the operational malfunctions described by
LeMaire. He worked there for six months from April of 1979, and
so his service was during the WAPORA presence at the plant. Faul-
coner was not trained for work at a chemical plant when employed,
and received no training prior to commencement of work. His func-
tion was that of chemical operator in the surfactant plant. Faul-
coner was assigned one time to the monomer plant with a coworker.
There was a spill while he was there from the reactor of about a
guart of allyl alcohol. The almost immediate effect was to swell
the eyes shut. The maintenance personnel washed down the spill
accoutered in self-contained respiratory units. In the process,
they opened the doors to vent the allyl alcohol vapors into the
atmosphere. Faulconer, some ten feet away outside the building,
could feel the effect of the allyl alcohol vapors on his sinuses
and eyes.

The operations at the soap plant were plagued by contin-

Cc
o
[a
Oo

reakdowns caused by lack of maintenance: overhead lines
ruptured, pumps failed, and other malfunctions resulted. The
toxic vapors released from the ruptures were simply vented into
the atmosphere. When the sulphur burner in the soap plant broke
Gown, so that sulphur dioxide fumes filled the building, the
employees were instructed to wait until after dark, then open the
coors and release the fumes into the atmosphere. At those times,
the fumes became so thick that employees in the soap building had
tO wear respirators. The manufacture of the soap-based products
in the surfactant plant involved sulphur and its compounds. Waste
srom that process included vapors of sulphuric acid, sulphur
trioxide, and other chemical residues. It was a function of the

ubbers to cleanse the residues from the wastes before they

ww
2)
| od
Q.
“
2)
|

were emitted, nontoxic and neutral, into the atmosphere through

the stack. When the acid scrubbers malfunctioned, but production

aa

ee ee

continued nevertheless [as were the instructions of management],
the vapors -still contaminated - and acid mist were emitted from
the stack in the form of a plume, and sometimes as soap bubbles.
The acid scrubbers malfunctioned 70% of the time. The smell from
the plume was "very foul." When that residue descended, the grass
turned brown, and irritated the skin it touched.

There were also repeated chemical spills. They occurred
regularly, about once a week, usually at the start-up and shut-
down phases of the production process. If the spill was in the
plant, it was flushed down the drain and discharged into biopond
one. The consequence was "a big pile of soap bubbles floating
across the road" mixed with whatever toxic chemicals were in the
pond. If the spill was outside the plant, as often occurred when
trucks loaded or unloaded the chemicals, the spill was merely
covered over with dirt. On one such occasion, some two to three
thousand pounds of duodubonicsulfonic acid were released. Other
outside spills resulted from the overfill of outside chemical
storage tanks of multi-ton capacity. Another source of outside
spills was from the storage of the liquid waste products. That
(presumably because the liquid incinerator continued to
malfunction] was placed in several thousands of drums outside the
buildings for transport and disposal. Some of the drums leaked so
that the contents filtered into Shaver Creek. Others would be
smashec py the semi-trailers, and the contents laid open. Other
Grums exploded in the August sun and spewed the contents.

Faulconer described incidents when trucks came to be
loaded to transport the surfactant products, but were refused by
che employees because remnants of hazardous chemicals from the
prior haul remained in the vans. The truckers simply drove a
Short distance off the premises, drained off the toxic matter,
and returned for loads. It was a practice, Faulconer said, known

by Alcolac and tolerated.

22

There was a logbook used to communicate between the
production shifts. It contained instructions by production
manager Gibbs as to the chemicals to be produced and the quan-
tity. It was also used to report spills. Faulconer was in-
structed by Gibbs not to record a spill in the logbook until it
was discussed with management first. He testified that only
"ten, maybe twenty percent” of the spills he observed at the soap
plant were recorded in the log. The spills usually recorded were
the "non-hazardous type spills ... five gallons of this, ten
gallons of that." Those spills considered hazardous, Faulconer
testified, were never noted in that log, or anywhere else, during
his employment at Alcolac..

Faulconer confirmed the LeMaire testimony that Alcolac
‘somehow got two or three days advance warning of Missouri Depart-
ment of Natural Resources inspections, and that advisement was
fransmitted to the employees by production manager Gibbs. Accord-
ing to Falconer, the Alcolac management instructed Falconer and
the others to "keep your mouth shut, don't volunteer any informa-
tion." Falconer was discharged - he contended - two weeks after
he contacted the president of the union at the Alcolac plant in
Saltimore [the Sedalia plant was nonunion] for advice about
Detter maintenance and safety procedures at Sedalia. He took
that initiative, Falconer testified, only after he had approached

Gibbs about better plant safety and was told "to keep-[his] mouth

mie "
tills we

Alcolac dismissed WAPORA from the Sedalia plant project

in December of 13979. The urgent WAPORA recommendations - for a

23

ree

ee See eee

Oe te Oh Se ——— in
~~ — Det amae

trained environmental engineer, employee training in pollution
control, a restored liquid incinerator, the installation of
eleven hydrocarbon systems to monitor emissions, and an aerator
system sufficient to oxidate the increased influx of chemical
waste into the bioponds - all remained unfulfilled.

Complaints by residents in the environs of Alcolac
[some of them eventual plaintiffs, and others not] of odors,
suds, fumes and bodily ailments from those and other emissions
were made to Alcolac, to public officials, and then to the Mis-
souri Department of Natural Resources [DNR] almost from the
outset of operations. The DNR was drawn into contact with the
Alcolac facility in Sedalia by a complaint of odors by Gwendolyn
Lawrence, a nearby resident and eventual plaintiff. The response
to that first complaint was by Ann Gessley, environmental spe-
cialist with the Division of Environmental Quality of the DNR in
Jefferson City, Missouri. She arrived in Sedalia a week later +o
interview Ms. Lawrence - in August of 1978. The investigator on
that occasion detected "a slight odor," and then proceeded to
measure the odors around the circumference of the plant by means
of a scentometer. That device allows a tester to measure the
concentration of an odor by inhale ions of comparative volumes of
ocor-free air [freshened by the carbon filter of the scentometer]
and odorous [unfiltered] air. A dilution ratio of 7 to 1 between
the filtered and ambient air constitutes an "excessive emission"

lan

according to the standards of the federal Clean Air Act enforce

Q,

24

by the DNR.© Ms. Gessley then entered Alcolac, informed then
plant manager Fischer of the complaint, and was conducted through
the facility. She had occasion to inspect the plant several
times thereafter but acknowledged that she was qualified to
enforce odor regulations, but not as to the "goings on of a
chemical plant.” Ms. Gessley testified that she never undertook
to determine the source of the odors on the occasion of that
ficst complaint, but her written report suggests that "the waste
lagoon [biopond] could be the source of the odors." She doubted,
however, that the biopond was the cause of the burning sensations
the complaint of Ms. Lawrence described.

The recurrent complaints of odors and bodily discom-
forts from Alcolac emissions entailed frequent returns to Sedalia
by Ms. Gessley and other DNR specialists. They conducted re-
peated surveillances around the Alcolac perimeter and often
detected odors, but no violations - that is, odors diluted in a
ratio of 7 to l by the scentometer test. Ms. Gressley acknowl-
edged that the elapse of the two hours or so between the receipt

ne complaint in Jefferson City and the arrival of DNR person-
nel in Sedalia "was why we couldn't get a violation." That is to
Say, whatever odors may have been emitted at the time of the
complaint were often dissipated by the time an official test was

o allay that conundrum that the DNR empowered

ct
id -~ *« ~s ee
— : P| os — - - ~ + | 7 ee
2asured carbon atoms, rather than speciztic molecules. Thus,
- ~ | ~ ~ — ~ _— = + - - & =
altnoug ene monitor could identify the carbon content of a2n
n~ a ~~ ~~ esa 5 | _ -s 5 |
organic emission, 1t could not identify the particular compound
~ | in — ~ _ 3 : + , j ~ - ‘
emitted For instance: the detection of four carpdon atoms i1n
- ho ~ ce ~F 7 a | as + = + M 4 ould signify tne presence of epicnloronyarin or any
sther ompound of similar molecular structure, but could not
~— ~~ ne + & + _*s = ° - | a" «@ q tr . -
1denticz WNn1c one. it was a delineated onojective g3j) of the
J L
i ——
>

doors, the want of a valid spill control program, the falsif:-

cation of records, the lack of a standard operating procedure -

am
all bespoke a management “terribly lax in addressing basic plant
operation requirements" and were contrary to industry standards.

Boelter also related his opinion of unsafe operation to

the log of chemical spills kept for the year 1981 by Blowers
during his service at Alcolac as environmental control engineer.
The log recorded 111 spills - among them quantities of such ex-
tremely toxic chemicals as epichloroydrin, allyl alcohol and allyl
methacrylate. The log explained the cause for each recorded
spill, and a number of them - as interpreted by Boelter -were the
result of a want of standard operating procedure, employee neglect
and equipment leaks.

Boelter also determined from the history of equipment

ct

lfunction and misuse, that Alcolac was from inception in 1978 an
operation unsafe to nearby residents. The incinerator designed as
the environmental control for the disposal of the hazardous liquid

waste from the monomer process never functioned properly, and was

abandoned in 1981. In that interim, the malfunction frequently

resulted in incomplete combustion of the waste and hence emission
of that, and other, toxic residue into the atmosphere. The fume
incinerator used for the combustion of the vapor wastes in the

os ~ rn - 1A na za
4

sources of

‘

the evi-

were never alto-

the bioponds

evidence

the bioponds were never monitore

toxicity either of the liguids or vapors.

of

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the nearby residents on yet another

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19)

SO

-
], five are designated as hazardous by the EPA,
and three are known carcinogens. The effect of a toxic chemical
on the human body, Dr. Legator explained, depends upon the concen-
tration of the chemical and duration of the exposure to it. Or, as
rendered into a formula: "Concentration times time equals ef-
fect." That equation is subject to variables - among them, the
genetic susceptibility of the person to chemicals and the mode of
life adopted by the person. The exposure may be chronic —- over a
prolonged time, or acute =—- over a short time. The toxic effects
may also manifest as chronic or acute. There are diverse portals
through which the toxic chemicals gain access to the body. The
major routes are through the skin, the mouth of lungs. A toxic
chemical may characteristically attack a particular organ or may
target multiple organs. When absorbed, toxic chemicals can affect
the immune system and, if the dose is high and prolonged enough,

can cause mutations in the human body.

toxicology of the Alcolac chemicals was the subject of the
imony of expert witnesses Dr. Marvin Legator and Dr. Betram
ow for the plaintiffs, and Dr. Sorrell Schwartz and Dr.

rd Emmett for the defendant Alcolac. That testimony estab-
hed that the Environmental Protection Agency [EPA] toxic
stance list numbers 130,000 industrial chemicals as toxic. Of
t number less than 5% have been studied for toxic effects; and
S than 1% have been studied for carcinogenic or mutagenic

ect upon humans.

-- a oO

’

‘

OmrmnrnrewMoaanns
re ge >
hunw owe

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a]
ui

Marvin Legator, Director of Division of Environmental

icology at the University of Texas Medical Branch and erst-

le professor of genetics - among an array of professional

dits - was presented by the plaintiffs for expert testimony on

eonecn yo
ro

2)

Where the exposures are from multiple toxicants [as in

the monomer production process], Dr. Legator explained, the com-
bined toxic effects from the interaction may be much greater than
the mathematical sum of their individual effects. As toxicologist

16 commented, science recognizes chemical

Schwartz
interactions where "one and one equal ten." That effect is known

by the technical term syneraism. Another means whereby toxic

chemicals may become more toxic is by the process of pyrolysis.

That term means merely breakdown by heat. Incineration was the

form of pyrolysis used by Alcolac to dispose of some toxic wastes.
If the incineration is at a heat effective to destroy the chemi-
cals [Dr. Legator explained], the toxic effects are also de-
Stroyed. If the incineration is incomplete so that the chemicals
are only partially destroyed, the pyrolysis may result in more
toxic chemicals than originally and "produce more chemical in the
atmosphere." Dr. Legator gave as Opinion - in terms of pyrolysis
- that the effect of the operaton by Alcolac of the liquid incin-
erator at low heat levels because of continued malfunction was the

discharge of more toxic substances.’

Dr. Sorrell L. Schwartz, Professor of Pharmacology at Georgetown
University Medical Center, Scientific Director for the Center for
Environmental Health and Human Toxicology at George Washington
University - among an array of professional credits - was pre-
sented by Alcolac for expert testimony on toxicology and
pharmacology.

17

It was an opinion confirmed by Jacob Bregman, president of
WAPORA, and architect of the environmental control systems
installed at the Alcolac plant:

Pyrolysis, the term means breakdown by heat, and
when you take a chemical and put it in an incinera-
tor, or heat it up in any way, the chemical breaks
down. That's called pyrolysis.

Depending on the chemical, the eventual breakdown

products are carbon dioxide and water. However, it
goes through a whole series of smaller chemicals,

Sa

Dr. Legator then discussed the toxicological role of

each of the six chemicals used in the monomer production process
at Alcolac and already tested for toxic effect:

EPICHLOROHYDRIN

Alcolac used some 378,000 pounds of epichlorohydrin per
year. It is listed by the EPA as a direct carcinogen, a hazardous
substance, and a hazardous waste. It is a volatile chemical and
enters the human system through inhalation and also the skin. The
target organs are the brain and the central nervous system, as
well as the kidney and liver, among others. It affects the blood
and causes porphyria - a disease of liver metabolism. The chemical
is also a mutagen and induces “transmissible genetic damage." It
has also been identified as the cause, even at "very low concen-
trations," of chromosome damage in humans - that is, to "[tJhe
package that holds our DNA." That is significant, Dr. Legator
explained, because "literally every chemical that I know of that
causes chromosomal damage also causes cancer." It is an identifi-
cation of cause, moreover, borne out by epidemiological studies.
Animal studies confirm that epichlorohydrin causes a variety of
cancers in different organ sites, breaks down the chromosomes, and

affects the reproductive system.

me eee ee ee ee ee ee ee es

some of which may be toxic, some of which may not
de toxic, and they all eventually break down.
Those are pyrolysis products.

If the incinerator isn't operated properly, not
only do some of the original chemicals get out, but
some of these breakdown [sic] products.

'

Dr. Bertram Carnow, another expert in toxicology and
other sciences,/}8 described epichlorohydrin as a direct carcinogen
- “an extraordinarily active chemical," a "grabber" which "grabs
onto DNA" and changes it. The chemical also deforms the immune
system so that it cannot respond to the attacks on the DNA by
cancer cells. Dr. Carnow confirmed that the indication of an
earlier epidemiological study that exposure to epichlorohydrin
presents a risk of cancer to humans has been "more strongly
proven." The witness considered it significant that Alcolac has
used an average of 378,000 pounds of the chemical in each of the
past seven years, since even "(iJn very small quantities, it is
extraordinarily toxic." The volatility of the chemical, moreover,
is such that if "put out into water, [i]t will go from water into
air." A test of Alcolac biopond one by the Carnow professional
group found "the footprints of epichlorohydrin" in the waters.

The toxicologist for Alcolac, Dr. Sorrell Schwartz,
agreed that epichlorohydrin can cause damage to multiple organ
Systems - the liver, the lung, the kidney and other sites. He

would not acknowledge it as a "foregone conclusion," however, that

the compound can cause porphyria, but considered it "certainly
plausible," since the cheticel "Goes have a fairly extensive
ability to interact with the systems, with the liver." The wit-
ness agreed that epichlorohydrin, as an alkylating agent, is a
“cell-killer," but maintained that it has not been demonstrated
that the chemical depresses the immune system in humans. Dr.

Schwartz agreed that chronic effects may result from exposure to

r. Bertram Carnow, a partner in the professional consultation
firm, Carnow, Conibear & Associatés, was the most prominent
expert witness presented by the plaintiffs. His testimony ranges
over some ten volumes of transcript. A fuller and more consid-
ered discussion-of the expert qualifications and testimony of Dr.
Carnow is rendered in the course of opinion.

36

epichlorohydrin in adequate doses and that the chemical is a
proven animal carcinogen. He concluded: "It is possible that it
can cause it in humans." Indeed, it was the opinion of Dr. Arthur
Cs: Zahalsky, presented as an expert on immunology by the plain-
tiffs, that epichlorohydrin is not only a carcinogen, but acts
adversely on the human immune system. .

The opinions of Dr. Edward Anthony Emmett, another
expert witness for Alcolac,?9 were somewhat at variance with those
given by Alcolac toxicologist, Dr. Schwartz, as to the toxic
effects of epichlorohydrin. Dr. Emmett acknowledged that recent
publications conclude that exposure to epichlorohydrin presents a
risk of cancer to humans. He agreed with the other witnesses that
epichlorohydrin, as an alkylating agent, is "dangerous and power-
fully reactive to chemicals” and “combines avidly with tissue.”
The witness deemed it "certainly possible" that exposure to such a
chemical could "depress and destroy the immune system" in humans.
Dr. Emmett testified that toxic chemicals cause a form of porphyr-

ia called toxic porphyria. He intimated that epichlorohydrin can

cause that species of porphyria.

The material safety data sheet*° issued by Alcolac to the

\

work personnel in compliance with OSHA directive informs that

* epichlorohydrin, in liquid form, "can be fatal if swallowed," and
"Chjigh vapor concentrations can cause death.” It informs also
that "the results of a recent epidemiology study have been termed
"highly suggestive’ that exposure to ECH is a cancer risk to

/
humans." The data sheet describes as the effects of overexposure:

The qualifications of Dr. Emmett ranged from internal medicine,
dermatology, environmental occupational medicine to toxicology -
among others in an extensive pedigree.

29See APPENDIX I and J for full text of the material safety data
sheet issued by the Alcolac supplier, Shell Chemical Company.

57
Fe ee es eT

"Vapors severely irritating to the eyes, nose and throat. Re-
peated or prolonged exposure can cause severe and lasting lung,
liver and kidney damage and change in lymphocytes [cells in blood
and lymph]...Cancer suspect agent." It gives the special precau-
tion: “Notify authorities if any exposure to the general public or
environment is threatened by a spill."

Epichlorohydrin was among the toxic compounds spewed
about from blow-outs of ruptured disks [as reported by monomer
operator Buckner and environmental control technician Holman. ]

It was also a component of the 2900 gallon and other spills re-
corded in the Blowers log for year 1981.

ALLYL ALCOHOL

Alcolac used some 416,000 pounds of allyl alcohol per
year. It is listed by the EPA as a hazardous waste. It gains
entry into the human system by inhalation and is readity absorbed
through the skin. Allyl alcohol can have either a chronic or
acute effect on humans, according to the concentration of the
exposure. The target organs are the liver and Kidneys, among
other systems, and exposure may cause necrosis. Allyl alcohol
also acts as an enzyme and converts other chemicals in the body
into even more toxic substances. It has been demonstrated in
vitro to alter genetic composition. It was the opinion of Dr.
smmett, Alcolac environmental occupation medicine and toxicology
expert, that exposure to allyl alcohol can cause mutagenic effects
in humans.

Spills and emissions, of allyl alcohol in the monomer
building were reported in the evidence. Environmental control
tester Holman described an explosion of a monomer reactor which
Spewed a combination of allyl alcohol, epichlorohydrin and stannic
acid. The toxic spill log maintained by environmental control
engineer Blowers records a spill of 2900 gallons of AGE stripped

Srine - a fluid composed of allyl alcohol ana epichlorohydrin.

58

epee ss—s—s—te pre

Monomer and surfactant operator Faulconer described a spill of a
guart of allyl alcohol whose vapors were allowed to emit into the
atmosphere. Allyl alcohol was also a cOmponent of the monomer in
production at the time of the explosion of September 25, 1981,
which blew off a segment of the factory roof and strewed the
debris onto private property. It was an observation of one of the
numerous WAPORA reports from Bregman to the Alcolac officials that
the habitual “sloppy handling” of allyl alcohol in the monomer
production process was a cause of the recurrent odors and posed,
as well, an environmental hazard.

The material safety data sheet circulated by Alcolac to

the plant workers to comply with OSHA @Girectives describes allyl
alcohol as a colorless liquid with a sharp odor. In vapor form,
it is “highly irritating to the eyes, lungs and damaging to the
liver and kidneys." It warns: "Onset of eye irritation may be
delayed but can be severe...Absorption through the intact skin can
cause injury or death." The sheet concluded with the special
precautions: "Handle as flammable liquid and as a poison...
Notify authorities if any exposure to the general public or envi-
ronment is threatened by a spill."

ETHYL ACRYLATE

leolac used some &3,000 pounds of ethyl acrylate per

ne

year. It is listed by the EPA as a hazardous waste. It is car-
cinogenic to animals, but present data does not support the expec-
tation that exposure causes cancer in humans. The compound also
affects the reproductive process in animals. Dr. Legator, expert
in toxicology for the plaintiffs, gave opinion that ethyl acrylate
is a mutagenic. The primary portal of entry is inhalation. The

chemical is very odorous and extremely irritating. Ethyl acrylate

may cause both acute and chronic effects. It is known to cause

convulsions, arrythmias and other strange manifestations of the

heart. It also affects the kidneys, heart, lungs, liver and
central nervous system.

The wastes from the monomer production process [as a
memorandum by Alcolac vice president Bouroff to president Anderson
noted] were "saturated with acrylates." It was to allay that
source of pollution that Alcolac was required by the abatement
agreement with the DNR to install alkaline scrubbers to remove the
acrylates from both the liquid and gaseous waste streams from the
monomer building reactors. The pronounced odors of ethyl acrylate
from the shift in the monomer carbon bed and spills were the
subject of report between Alcolac and the DNR.

TOLUENE

Alcolac used some 17,000 pounds of toluene per year. It
is an active compound and enters the human system through inhala-
tion and the skin. The compound attacks the respiratory system,
central nervous system, the liver, kidneys and heart. It causes
arrythmia, tremors, convulsions and other episodes of that ilk.

Its effects can be chronic, and - according to Alcolac polyexpert

Emmett - presents a "potential risk of cancer" in humans. Expo-
Sure to the chemical affects reproduction in animals and - accord-
ing to an authoritative text - also affects human fertility. It

was the opinion of Dr. Zahalsky, immunology expert for plaintiffs,
that toluene is toxic to the cells and acts on the immune system.
Toluene not only attacks the organ systems of humans, but exposure
to the chemical by domestic animals induces a range of effects -
such as convulsions, loss of motor control, and even death.

It was this chemical, tolwene, which - according to
environmental control building technician LeMaire - on occasions
overflowed from the sump pits to the exterior and into Shaver
Creek. It was this chemical also which spilled outside in such

Quantity as to cover the adjacent irrigation pond to a depth of

one-half inch. The test of biopond one by the Carnow profes-
sional group which found “the footprints of epichlorohydrin” in
the waters found toluene also. It was the opinion of toxicologist
Legator that spills of toluene and related chemicals exposed to
the air evaporate and - depending upon atmospheric conditions -
"blow around to the surrounding population.”

GLYCIDYL ETHER

Alcolac used some 390,000 pounds of glycidyl ether per
year. It is a highly reactive chemical and enters the bodily
system through inhalation, the skin or through the mouth =- if
contained in food or water. Glycidyl ether affects the liver, the
kidneys, the respiratory tract and the central nervous system. [It
causes peripheral neuropathy and manifests in numbness, tingling
and leg cramps. Prolonged exposure to the chemical produces
chronic effects. Glycidyl ether is known to cause cancer in
animals, and, according to Alcolac toxicologist Schwartz, "is
possible" as a cause of cancer in humans.

Toxicologist Legator, in response to a hypothesis posed
from the evidence of ninety residents within the Alcolac environs
that from 50% to 60% of them experience continuous tingling and
numbness of the extremities, equated that incidence with “walking
down the street and seeing seven people who are eight feec tall."
CYCLOHEXANE

ol lso used cyclohexane in the monomer process.

ac a

A
Ale

e

[The evidence does not disclose the quantity.] It is listed as a
hazardous waste by the EPA. The portal of entry is inhalation and
the target organs are the respiratory and the central nervous
systems. It causes erratic blood pressure, sudden nosebleeds,
lethargy, depression and vascular disorders.

In addition to the six chemicals already tested for
toxic effect - epichlorohydrin, allyl alcohol, ethyl acrylate,

toluene, glycidyl ether and cyclohexane - as explained dy the

ol ,

testimony of toxicologists Legator, Schwartz, Emmett and Carnow,
the Alcolac evidence identified other chemicals, also of known
effect, involved in the production process. Among them were
dimethyl sulfate, hydrogen sulfide, methyl chloride and allyl
qrethacrylate.

DIMETHYL SULFATE

That chemical, Alcolac toxicologists Schwartz and Emmett
agreed, enters the bodily system through inhalation and the skin.
The kidneys, liver, and the central nervous and respiratory sys-
tems are the target organs. If the exposure is persistent enough
and the dosage sufficient, the effects of the chemical can be
chronic. It is a carcinogen in animals and, according to Dr.
Emmett, carries risks of cancer to man. Dimethyl sulfate, im-
munologist Zahalsky explained, is an alkylating agent: it adds
new chemical groups into the compound. As in the case of epi-
chlorohydrin [and some of the other chemicals], absorption into
the human system operates to alter the DNA and to kill normal
cells. In the terminology of immunologist Zahalsky, dimethyl
Sulfate attaches to cells and induces the genetic code sequence
"to go haywire." It was an opinion confirmed by Alcolac immun-
Ologist Stechschulte.

The material safety data sheet circulated by Alcolac to

the plant workers to comply with the requirements of OSHA warned:
"Extremely hazardous liquid and vapor. Causes severe burns. Lung
injury and burns may be delayed. May cause cancer [based on tests
with laboratory animals])."

HYDROGEN SULFIDE

"Hydrogen sulfide is deadlier than cyanide," Dr. Carnow
explained. This compound is absorbed into the bodily system
through inhalation and the odor of rotten eggs attends its pres-
ence. The odor of rotten eggs was a recurrent emission from the

bioponds. The cause of these odors Dr. Carnow attributed to the

62

DEE

production of hydrogen sulfide from the overload of the bioponds
with toxic chemicals. It was the recurrent rotten egg odor of
hydrogen sulfide in the sludge of the overused bioponds that Dr.
Reid detected during his tests and examinations for WAPORA. It
was also hydrogen sulfide DNR official Nikkila detected during one
of his investigations of the bioponds. He attributed that emis-

sion to insufficient aerators or to overloaded use.

-woay
ana = - -+ | ~ -
anc crusned sy truck traffic so that the highiy volatile compound
~~ a ~_ . s ~ -
was permitted to emit into the atmosphere. It was among the toxic
- > 35 SZ a>] “ie } 7} - aa
waste remnants, according to Faulconer, Alcolac personnel cis
~ 3 : + } € } : : ) . } ] 14
carced from tankers before replenishing them. Methylene chloride
5 ” , : eh iG é
enters the human system through inhalation and the skin. In a

Sficient dose it affects the liver [and hence porphyrin metabo-
lism], the heart, and central nervous and respiratory systems. [It
was tne opinion of Alcolac toxicologist Schwartz that in adequate

rolonged dosage, methylene chloride may cause cancer and

mutations in humans and depress the immune system.

‘ ,
tne enviro

wo

wv

> + ~ Ye -
emiacais ne ¢€1G not identify those ascernatives.
~ _ r ee + +
2ne Opinions rendered by Dr. AiiCorn were those of a
—— c ~ ar -~err + eo 7 + os nra- = S| — As lay _ nA } An a
e's yeew sa Git VTL 4A 4 ASU - a 2.y PlAaAcClice,. e reaciily acKnowledaqed
+ — + = ss & he = 4 : | - . 5 | + +
cnat he hac neither speciai training nor Guaiilication in occupa-
> -_ 7 ~ - o _ * _ ~~ «+ — j 4
~-i0One. mecicine, preventive mecacicin e toxicology Or immunology.
~ a
Na ms . . - ~~ > ~ » = -
NOr ac ©e Gcgeait with the toxic cnemicais used in the monomer
rae ~ + ~ . ~ = i | in > >
procuction and emission processes - such as epichloro ydrin, allyl
aah A > . - - ~-a- ) = - .
aicono. Cametnyl sulfate, LOszuene anc tne others.
=
~~ e
an” > 5 ~
2he +mmuno.iogists

The testimony and opinions of the immunologists were
based on three sets of labor tory procedures performed between

August of 1984 and July of 1985, to test the immune system func-
tions of the several plaintiff

S. The plaintiffs presented the
testimony ane opinion of Arthur c. Zahalsky, professor of
microbiology and certified research immunologist. Alcolac pre-
sented Daniel J. Stechschulte, certified medical internist and
certified clinical immunologist.

The first immune panel was conducted by the Bioscience
Laboratory in Chicago [August of 1984] as an incident of the

Clinical examinations anda diagnoses of the plaintiffs by the

74

28 plaintiffs

Carnow Associates, their experts. All thirty-one
presented themselves for this series. The second immune panel
tests were conducted by the Kansas University Internal Medical
Center [December of 1984] at the instance of Alcolac. The proto-
col for that series of tests - as defined by Alcolac counsel and
internal medicine expert Kerby, a professor at the University of
Kansas Medical Center - excluded ten of the plaintiffs.29 It was
the surmise of Alcolac expert Stechschulte that the protocol did
not encompass the other ten because: “(T]he information that was
available .. . didn't dictate that these individuals had abnor-
malities in their immune systems." The third immune panel was
conducted by the Midwest Organ Bank and Wheeler Laboratory in
Kansas City [July of 1985] at the instance of immunologist Zahal-
sky. He was prompted to that initiative by a deemed inadequacy of
the KU Internal Medical laboratory test results and because the
pervasive abnormalities disclosed by the Bioscience immune tests
suggested the need for more particular information of the cell
compartments. He explained that the KU laboratory blood analysis
tests were inadequate because they expressed results in percent-
ages rather than as within or without normal range references - as
is the common practice - with the consequence that the counts of
the various cell populations could not be determinated nor the
normality of those counts. The KU procedure was all the more

wanting, he explained, because that protocol did not include

°Seqward Gehlken, an original plaintiff, was disabled from a series
of strokes and did not present himself for any of the examina-
tions, nor for trial testimony. The judgment directed against

his claim by the trial court is not on appeal.

29malva Gehlken, John Phillips, Daniel Pryor, Joyce Pryor, Linda
Elam Sanders, Arnold Sommers, Kay Turley, Lyle Turley, Amber
Cross and Dorothy Bradley. Edward Gehlken was also excluded by
the definition of the protocol, but he is not accounted a party
for the purpose of opinion.

75

all of the plaintiffs. It was for those reasons that immunologist
Zahalsky arranged for the third immune panel procedure at the
Midwest Organ Bank and Wheeler Laboratory in July of 1985. Twenty-
four of the plaintiffs were tested. Mrs. Landon by then was under
a regimen of cobalt treatment for cancer, and so was disqualified
for the tests. The six members of the Turley family were una-
vailable. The evaluation renderea by Zahalsky as to the Turley
family members rested on the tests reported by the Bio-

sciences Laboratory in August of 1984. The opinion as to Landon

rested on both the Biosciences and the KU immune panel results.

Arthur C. Zahalsky, PhD

The witness defined immunology as the study of the
components of the immune system of man and animals - the cells
that compose the system, the appearance of those cells, the origin
of those cells, the presence of those cells in the blood, and the
balance of those cells. He likened the immune system to "an
internal watchdog or searchlight" which surveils the cells and
expels those components which are not "okay," and thus restores
the homeostasis - the normal state of immunologic balance. The
component extruded from the body by this process, the witness
explained, might be the result of a mutational effect caused by
the activity of a bacterium, or a virus, or of a toxic chemical.
An immune dysfunction, accordingly, is the imbalance ana dysfunc-
tion of the cells of the blood. The consequence of dysfunction is
that the “internal searchlight" becomes dim so that harmful sub-
stances may appear in the body which escape recognition, and hence
elimination. One result of dysfunction may be neoplastic disease
= a condition of cancer. Another result, among the many others,
may be the inability of the body to fight infection. The immune

System function is determined by the genetic code of the person

76

- none of them exactly alike. The efficiency of the genetic

system depends upon the stresses imposed by the mode of life and

habits adopted by the person: smoking, the consumption of exces-

sive alcohol, abuse of drugs all stress the immune system. That is
to say, they affect how the genetic code expresses itself.

The immunologist noted that the immune systems of the
plaintiffs and of those nonlitigant residents of the environs of
Alcolac shared a common insult: the prolonged exposure to the
toxic chemicals in the environment in which they lived. He under-
took to explain the consequences of the exposure to the toxic
chemicals identified with the Alcolac production process in terms

of the function of the human immune system. The immune system is

not a specific organ but is distributed in the bone marrow, the
thymus, the spleen, and in the lymph nodes throughout the body.

In terms of function, the immune system has two divisions. One
function is the production of antibody cells which are dumped into
the blood and circulate to all parts of the body. These antibod-
ies, called B-cells, derive from the bone marrow and spleen and_
fight off infection. Another function of the immune system is to
"search and destroy," and is the "cell mediated" arm of the sys-
tem. Those cells include the T-cells, so-called because they
derive from the thymus glanc, although they derive also from the
lymph nodes and spleen. The T-cells exhibit distinctive charac-
teristics and are of four different types. They remember previous
insults and challenges, they live long, and have the capacity to

expand. The four types of T-cell populations are the helpers,

| =

Suppressors, cytotoxic and natural killers. The helpers cooperate

with the B-cells to produce antibodies. The Suppressors work in
balance with the helpers to avoid indiscriminate and undirected
responses. The cytotoxic cells are also suppressors and can
attack and destroy transformed [neoplastic] cells with or without
an antibody. The natural killer cells can also attack and destroy
without the help of an antibody.

An smbalance of the helper populations of T-cells
(technically designated as T/4], when induced by stresses and
insults of toxic chemicals, is a condition of immune system dys-

function properly designated: chemically induced AIDS. In common

AIDS, it is the virus [rather than the chemicals] which attacks
the helper [T/4] cells and so induces immune system dysfunction. 2°
In either case, whether the imbalance is induced by toxic chemi-
cals or by virus, the result is that much of the T/4 cell popula-
tion is depressed - "functionally wiped out." Thus, the balance
in the bloodstream "just goes completely out: of whack" and the
Production of T-cells cannot keep up with the demand. The conse-
quence, among other dysfunctions, is a progressive erosion in the
ability of the person to fight infection. In the case of viral
AIDS, the customary course of infection is in the lungs, which
eventually leads to respiratory collapse, and death. In the case
of chemical AIDS, the progressive erosion of the immune system may
induce neoplastic disease - anda cancer. Chemically induced AIDS,
the witness testified, is a phenomenon Supported in the medical
and immunological literature, and is a subject of research at the

National Institute of Environmental Sciences.

3°the viral version of AIDS sometimes goes by the designation HTLV
- which stands for "Human T-cell leukemia virus, *

72

It was the opinion of immunologist Zahalsky that the

condition of chemically induced AIDS could be brought on by expo-

sure to the chemicals regularly used and produced in the Alcolac

monomer process. Epichlorohydrin, toluene and dimethyl sulfate,
among the others, are toxic to cells and act to depress the immune

system. Dimethyl sulfate is also an alkylating agent which

"sticks" to cells so that the genetic code sequence “goes hay-
wire," renders the cells toxic and suppresses the immune sys-
tem.-/ The witness gave opinion that exposure to a “chemical soup"
of epichlorohydrin, toluene, dimethyl sulfate, among the others
emitted into the Alcolac bioponds over'a span of seven years and

then carried into the air by suds and vapors, could cause a de-

pression of the immune system to persons in the environs. The
actions of these chemicals often induce symptoms which mimic
actual diseases, the witness explained, so that an un trained
local physician will not recognize that the complaints and symp-
toms actually bespeak a depressed immune system toxically induced.
¢ Zahalsky evaluated the immune system of each of the
thirty-one plaintifts. The witness, a research immunologist but
not a clinician, rested the assessments on the laboratory and test
data gathered in the immune panel reports from the Bioscience, KU
and Midwest/Wheeler laboratories. The witness evaluated the
immune system of each plaintiff according to whether the result
for each value tested was within or without a normal reference

range.°? Thus, by the self-evident standard adopted by the expert

3lample toxicological profiles of each of the most toxic chemicals
prominently involved in the Alcolac monomer production process
were rendered by toxicologists Legator, Schwartz and other ex-
perts, as already noted.

32mhe common practice [Zahalsky explained] is for the normal refer-
ence range for each test of the various blood cell populations to
be printed on the face of every test report form. The cell
population values of particular interest to an immune deficiency
evaluation are the: total T cells, the count of helper T cells
(T/4], the count of suppressor T cells [T/8], and the helper/

79

witness, an abnormality is a test value that falls outside the

normal reference range. Also, by that self-evident standard,
"abnormality is not good." Hence, the conclusion of the witness:
"a laboratory report that fails to list the reference ranges is
invalid by definition." It was, as we note, the perceived unre-
liability of the KU test results expressed in terms of percentages
rather than in terms of reference ranges which prompted witness
Zahalsky to recommend that the subjects undergo a third test
regimen at the Midwest/Wheeler laboratory.

The summary of test results from the Bioscience Labora-
tory noted at least one abnormality, and as many as eight, in the
immune system of every plaintiff.

The test results for every plaintiff from the KU labora-
tory, expressed in terms of percentages, were interpolated by the
witness through the reference ranges of the Midwest/Wheeler forms

into determinations of normal, abnormal and marginal. The KU

protocol [as did the Midwest/Wheeler tests] encompassed total T
cells, helper cells [T/4], suppressor cells [T/8], natural killer
cells and other populations. Zahalsky deemed that the most sig-

nificant test result components were the helper cell [T/4] and

Suppressor ratio, the mature B cell count and the natural killer
cell count - among others. The normal range for each of these
values - as is the common laboratory practice - is printed on the
face of each of the Midwest/Wheeler test report forms. These
ranges are derived from the most current immunologic literature
and from other authoritative sources - such as Eli Lilly "Medi-
facts" and the Smith-Kline Labs. The witness verified that the
reference ranges adopted by the Midwest/Wheeler report form were
"right in line” with the norms published in the professional
reference source, Diagnostic Immunology.

The results of the KU immune panels, Zahalsky testified, not only
expressed results in terms of percentages rather in terms of
normal reference ranges, but they also failed to report the
results-in terms of absolute numbers. Thus, as the Midwest/
Wheeler test for plaintiff Carl Berry reports, the total T cell
count for each unit of blood was 1,045 cells. That datum, as
well as other such values essential to a determination of immune
deficiency, is lacking in the KU panel of tests.

80

suppressor cell [T/8] counts. The test result associated with the
chemical AIDS condition, Zahalsky noted, was an abnormal helper
cell [T/4] count. In the case of plaintiff Carl Berry, the KU

test disclosed a T/4 count fully five percentage points above the

average - an abnormality. In the case of Virgil Bradley, the

transposed test results disclosed four abnormalities. Of the

twenty-one plaintiffs tested under the KU protocol, the transposed

results established that the blood cell population of only one -

Joy Sommers, age 15 - displayed no immune system abnormality. The
composite tests disclosed 39 abnormalities of the T cells distrib-
uted among the 24 persons tested.

The results from the Midwest/Wheeler Laboratory estab-
lished that 19 of the 24 plaintiffs who presented themselves for
tests suffered from dysfunction of the immune system. The witness
explained that since the T cell population, as an absolute number,
changes with age, to enable valid analysis of dysfunction, he
segregated the plaintiffs into three age groups -the young, the
intermediates, and the older. The tests of fourteen among the
plaintiff groups disclosed the condition of hypo-dysfunction -
that is, a depression in the total number of T cells. The tests
of five among them disclosed the condition of hyper-dysfunction -
that is, an elevation in the total number of T cells. Thus, 79%
of the plaintiffs tested by the Midwest/Wheeler Laboratory dis-
played an immune dysfunction of the T cell compartment. The
immunologist deemed the finding "tremendously statistically sig-
nificant." To this number the witness then added the six members
of the Turley family group who were not available for the Mid-
west/Wheeler regimen and Mary Landon by then under treatment for
cancer. All of them were earlier tested at the Bioscience labora-
tory and demonstrated immune dysfunctions. Thus, the combined

Bloscience-Midwest/Wheeler immune panel tests established that 26

81

out of the 31 plaintiffs, or 84% of the total number, demonstrated

an immune dysfunction. The witness described that statistic "an

astounding value." -

The Midwest/Wheeler immune panel tests included a newly
available procedure administered at the direction of immunologist
Zahalsky. It was for the T cell monoclonal antibody, HNK-l. That
antibody not only detects the natural killers of the T/4 popula-
tion but also suppressors not found in that population. Ten out
of the 24 plaintiffs had significantly elevated values in HNK-1l,
and one person had a reduced count. Four among the plaintiffs
tested? not only displayed elevated levels of HNK-l, but also
elevated levels of T/8 suppressor cells. Those values indicated
to the expert a gross distortion in the ratio between the helper
cells and the suppressor cells - an indication that the immune
System balance is "out of whack." They already suffer severe
immune dysfunction, the condition of chemically induced AIDS.
Eight others>4 already suffer moderate immune dysfunction, although
not yet the condition of chemically induced AIDS. The changes in
the immune system panels, however, are progressive so that the
dysfunctions will develop to the AIDS condition "Somewhere down
the line."

The dysfunctions of the immune panels as trends in
progress were demonstrated by the results from the Bioscience and
the Midwest/wWheeler laboratories - the two tests the witness
deemed reliable. The Bioscience test conducted in August of 1984
reported one abnormality of the immune system for Arnold Sommers.
The Midwest/Wheeler test conducted in July of 1985 listed two

abnormalities. The progression for Dorothy Bradley listed by

—— ee ee ee ee ee ee ee ee ee ee ae oe

33Virgil Bradley, Dorothy Bradley, Malva Gehlken and Dainie
Landon.

34amber Cross, Gwendolyn Lawrence, Joyce Pryor, John Phillips,
Arnold Sommers, Joyce Sommers, Joy Sommers and Genevieve Withers.

82

those tests within that interim were from one abnormality to

three, and for Virgil Bradley, from one abnormality to five. He

noted also that the immune panel of findings of laboratory tests
taken of Mary Landon before her cancer condition and cobalt ther-
apy verify that she had a severely depressed immune system.

It was the opinion of immunologist Zahalsky, moreover, that the

conditions of the other nineteen plaintiffs who then manifested
neither severe nor moderate immune system dysfunction would pro-
gress into proiiferated abnormalities.

Zahalsky concluded with the opinion that all thirty-one

plaintiffs were suffering from systemic, progressive chemical

intoxication. The witness gave opinion that the condition is the

consequence of exposure of the plaintiffs in their home environ-
ment to toxic chemicals which have induced changes in their immune
system. That injury has dampened the immune system so that the
plaintiffs will become subject to a variety of diseases, neo-
plastic disease [cancer] included. The findings already suggest
the possibility of leukemia. The expert would not attempt the
clinical prognosis as to "just how sick this group of people is at
the present time and is likely to become.” That was a matter for
a competent clinician - such as Dr. Carnow, an occupational medi-
cine expert. He did conclude, however, that since the condition
of dysfunction was progressive, each of the plaintiffs should have
annual laboratory tests for the rest of their lives, and bi-annual
tests for the four who already exhibit severe dysfunction. The

cost for each such laboratory service is $1000 per person, at the
current rate.

Daniel J. Stechschulte, M.D.
Alcolac presented Daniel J. Stechschulte, board certi-
fied immunologist and internist, and Director of the Division of

Allergy, Clinical Immunology and Rheumatology at the University of

83

Kansas Medical Center. He treats patients at the Medical Center,
as well as teaches, but has never treated anyone for a toxic
chemical complaint or conducted research on that subject.

The witness described the immune system in the same
terms earlier used by Dr. Zahalsky. His response as a physician
to a patient who presents a possible immune system problem is to
examine the patient, take a history and review the available
information. Symptoms and findings of recurrent infections,

35 suggest immune

hypersensitivity reactions or auto-immune diseases
System dysfunction. A laboratory test may be the adjunct of a
more precise evaluation, and the selection of the test depends
upon the nature of the symptoms and findings. They help to iden-
tify the arm of the immune system involved, and, accordingly, the
antibodies of that arm are tested. A test result which does not

fall within the reference range - that is to say, an abnormality -

does not ipso facto signify immune system disease. The abnormal-

ity, rather, may be the effect of a variable exogenous to the
immune system - such as the state of nutrition -which stunts its
normal operation. Thus, the clinician interrelates the test
abnormalities to the age, gender, nutrition, mode of life of the
patient, or other variable to determine whether the variables
account for the test abnormalities or if some other cause explains
the immune system dysfunction. Thus, the witness explained, the
end of immunologic evaluation is not a count of cells, but how
well the cells function as elements of the immune system, whatever
their count.

Viral infections can alter the immune system. Certain

toxic chemicals can also alter the immune system. The witness

Auto-immunity describes the condition of a misdirected immune
System which reacts against the person adversely and destroys the
tissues.

84

acknowledged the.condition called chemically induced immune dis-

regulation. He discountenanced the term chemically induced AIDS

to describe that condition of immune dysfunction, however, because
"that common usage [AIDS] now refers to individuals that are
infected with the human T-cell leukemia virus, Type III.”

Dr. Stechschulte was consulted as to the immunologic
tests to be administered to the plaintiffs under the KU protocol.
To inform that advice, Dr. Stechschulte reviewed the available
test and clinical records of the several plaintiffs from the
Carnow clinic, as well as numerous medical records from other
sources. The Midwest/Wheeler immune panel tests had not yet been
conducted, and so those results were not available to Dr. Stech-
schulte. He evaluated these sources for findings of hypersensi-
tivity reactions, recurrent infections or auto-immune disease
[indicia of immune system dysfunction], but saw no “predominance
of symptoms in any of these areas" - except for Mary Landon. He
nevertheless advised certain immune panel tests for twenty-one of
the plaintiffs. The decision to exclude ten of the plaintiffs
from the tests under the protocol was prompted by the results
already derived from the tests administered through the Carnow
clinic. Dr. Stechschulte accepted those results as "reliable" and
"authentic." The information they yielded, he explained, "didn't
dictate that these individuals had abnormalities in their immune
systems," and hence the need for further tests was discounted. The
selection of plaintiffs for tests, Dr. Stechschulte explained, was
by random method, and included "patients that were identified as
having immune dysfunction" as well as those the records suggested
"were perfectly normal."

The immune panel tests were administered by Dr. Boden-
steiner of the Department of Medicine at the University of Kanses

Medical Center. The regimen adopted, the witness explained, was

85

to test function and not merely to count cells.3© The functional
test elicits how the immune system responds when it is exposed to
a particular antigen or organism. The test, actually conducted in
the test tube and not in the human body, simulates the response of
the immune system to an infection stimulation. The tests admini-
stered through the Carnow clinic, the witness acknowledged, were
both functional as well as cell counts and were more numerous than
the single function test performed under the KU protocol.’ The
immune deficiency tests conducted by Midwest/Wheeler, on the other
hand, were expressed in cell counts but did not measure functional
response. Immune deficiency tests measured exclusively by cell
counts, the witness suggested, assume a relationship between a
normal number of cells and normal function of those cells.

The evaluator of the KU test results - immunologist
Stechschulte - was in any event aware of the various reference
ranges and undertook, within a reasonable medical certainty, to
interpret the KU results as to each of the plaintiffs subject to
the protocol. With the exception of Mary Landon, the evaluator
concluded, the clinical history of the plaintiffs examined sug-
gested that "their immune system was functioning normally.” There
were some, he acknowledged, "that have laboratory tests that fall

outside the arbitrarily defined normal ranges." Others displayed

38the testimony of witness Stechschulte intimates that the KU test
results were formulated without reference ranges because Dr.
Bodensteiner had not yet "put in a cell sorter" - the apparatus
used by Midwest/Wheeler for cell counts. In fact, as immun-
Ologist Stechschulte described the test result procedure, Dr.
Bodensteiner relied on the Midwest/Wheeler test counts to compare
and validate his own results: "He [Bodenheimer] basically took
individuals and took paired samples, and sent one to Midwest
Organ Bank and sent the other to his machine, and then compared

the results when they came back."

The functional tests were in the form of mitogen challenges - [a
procedure more fully discussed in the course of opinion] which
assesses the ability of the lymphocyte component of the immune
system to defend against infection and disease. The Bioscience
laboratory immune panel regimen included three such tests, and
the KU protocol only one.

86

"some subtle changes in their laboratory parameters." He con-
cluded, nevertheless, that "“{c]linically I thought they were
normal." The clinical factors which prompted that conclusion were
the ages of some of them [seven among the twenty-one were in the
sixties and seventies], and the nutritional deficiency of others
suggested by red blood indices abnormalities noted in the Mid-
west/Wheeler tests. The reference range abnormalities notwith-
Standing, Stechschulte concluded that basically the immune systems
were functioning. He deemed it “highly speculative"to suggest
"any prognosis as to where their immune systems might be going."°8

; Dr. Stechschulte explained that a disregulated immune
system could result in cancer. The latency period to that end-
point is "highly variable," and depends on the strain of the
cancer - whether induced by virus, by chemicals or by mutagens. It
is known that the use of chemotherapeutic drugs [as in the treat-
ment of the auto-immune diseases) over a period of five to ten
years can result in an increased incidence of malignancy in the
patient population.

The witness reaffirmed on cross-examination that on the
basis of the clinical histories of the plaintiffs, none of them
(Mary Landon excepted] suffered a functional abnormality of the
immune system. He reaffirmed also that one of the indicia of
functional abnormality is the recurrent infection syndrome - such
as chronic conjunctivitis, chronic urinary tract infections,
chronic rhinitis and chronic pharyngitis. These are conditions,
the expert acknowledged, which can be caused by exposure to toxic
chemicals. Dr. Stechschulte acknowledged that the histories of

the plaintiffs included findings of such chronic symptoms. He

33see APPENDIX K for the evaluation by Dr. Stechschulte of the
immune system of individual plaintiffs.

87

mn henna

responded nevertheless that these conditions, even if recurrent,
were not sufficient to suggest a deficient immune system, unless
the symptoms were bacterial in origin.

Dr. Stechschulte explained also that although the medi-
cal evidence may find that the plaintiffs suffered from conjuncti-
vitis and other chronic conditions caused by continuous exposure
to the toxic chemicals over seven years, that would not necessar-
ily suggest an immune system disregulation [a system out of bal-
ance], even accompanied by abnormal laboratory test results. He

gave as reasons that conjunctivitis, for example, describes "a
group of disorders," some of which may be due to the immune system
and others not. Also, he had not come to the diagnosis that these
Symptoms were recurrent infsctions. The witness acknowledged
that, contrary to his usual clinical procedure, he had not exam-
ined any of the plaintiffs - simply because the protocol did not
include that procedure.

He acknowledged again that certain toxic chemicals can
Suppress the immune system. He understood that Alcolac used
alkylating chemicals in its production processes. The effects of
alkylating agents on the new cell formations, the expert ex-
plained, is to alter their DNA and can lead "to killing of those
cells." Dr. Stechschulte agreed that toxic chemicals can cause an
increase in the IGA antibody production. That is a condition
which may be found in the blood cells of a person who suffers
malignancy. The KU protocol did not provide for a test of the IGA
levels, and none were made under that regimen. The witness agreed
that "there were certainly some [plaintiffs] who have elevated IGA
levels." Virgil Bradley and Dainie Landon were two among them.
Dr. Stechschulte agreed that Bradley and Landon "should be watched

and have their IGA levels and other studies done periodically."

C8

He ascribed as the reason, that the IGA "is commonly elevated with
chronic inflammation [a]nd chronic inflammation can again be due
to a variety of reasons, one of which is malignancy.”

The expert witness agreed that it is good medical prac-
tice to test every member of a population with symptoms from
exposure to toxic chemicals, especially when the exact immuno-
toxic chemical is not known. He agreed also that it is possible
to have an immuno deficiency syndrome even without present dis-
ease, but that disease “may be just later down the road.” The
witness acknowledged that the immune system may change from normal
to abnormal, and that such a transition was not subject to predic-
tion.

The cross-examination of immunologist Stechschulte
concluded with this exchange:

Q. Would you agree that these people I
represent, who have been impacted by the
Alcolac toxic chemicals, should be watched
or monitored to determine when such changes
might occur?

~~ a

A. It is appropriate.

VI

A
The Medical Experts
and
Biological Causation

For the Plaintiffs

It was the role of Dr. Bertram Carnow to posit that the
toxic emissions from Alcolac were the cause in fact of the symp-
toms, biological manifestations and end points of disease exhib-
ited by each of the plaintiffs. The witness rendered those
Opinions as a physician, expert in the science of environmental
medicine. It is the method of environmental medicine that, to

come to a determination as to whether a disease is from an

89

external cause, the investigator establish by a high degree of
probability that the environmental event - here the installation
of the Alcolac chemical plant and the subsequent emissions of
toxic odors, fumes, foam and explosions - be related to the pa-
thology or disease.

The process of investigation of external cause and

diagnosis of disease involves a compound of factors:

It commences, first, with a related external
event - here, the commencement of Alcolac opera-
tions and the virtually coincident onset of the
emission of fumes, odors and foam discerned by
the plaintiffs and other populace in the envi-
rons. The related event can be an acute episode
- such as an explosion from the monomer reac-
tors, or chronic episodes - emissions over the
seven years of Alcolac production.

The second factor in the process of investiga-
tion of causation and diagnosis of disease is
exposure to the event. The demonstration of
that element, in the context of the evidence, is
the observations of incidents of smoke, vapors
and foam and the detection and inhalation of the
odors and emissions - followed by symptoms. The
evidence was replete with accounts by the plain-
tiffs and other nonlitigant witnesses, resident
in the environs, of observed plumes and inciner-
ations, vapor emissions from Alcolac as well as
airborne foam from the bioponds. They described
the same composite of odors and assortment of
Symptoms. The odors, moreover, were characteris-
tic of the toxic compounds involved in the
Alcolac processes - the lacquer odor of the
methacrylates, the rotten ega sensation of
hydrogen sulfide and the sweetness of toluene

- among others.

The third element is an effect from that expo-
Sure. It is an effect which follows the ex*er-
mal event and stands in a reasonable temporal
relationship with it, whether the exposure is
acute or chronic or whether the effect is acute
Or chronic. An acute effect usually follows
soon upon acute exposure. A chronic effect
usually follows from repeated exposures over a
prolonged time. The acute effects Gisplayed by
not only the plaintiffs but also the nonlitigant
residents, were on the mucous membranes and the
Sympathetic nervous system, and manifested also
as irritation of the eyes, nose and throat,

90

NN T_T

headache and vomiting - among the others. The
chronic effects from the repeated exposure over
the seven year span of toxic emissions were to
the major organ systems which were poisoned by
the prolonged exposure. It was the conclusion
of the environmental medicine expert, for rea-
sons our discussion delineates, that every
plaintiff suffered both acute and chronic ef-
fects from the acute and chronic exposures to
the Alcolac toxic emissions.

The fourth element is whether the effect - here
both acute and chronic - is related to the
external event, and therefore expected. In the
context of the litigation and evidence, the
expectedness of the effects of the chemical
emissions was Gemonstrated by the toxicological
profiles of each of the toxic compounds promi-
nently involved in the monomer process. The
experts drew the toxicological profiles for
epichlorohydrin, allyl alcohol, ethyl acrylate,
toluene, gylcidyl ether, cyclohexane, methylene
chloride, hydrochloric acid, hydrogen sulfide
and allyl methacrylate. The experts agreed that
many of these toxic compounds induce common
physical manifestations, and hence acute ef-
fects: epichlorohydrin, allyl methacrylate,
allyl alcohol, and ethyl acrylate cause irrita-
tion to the eyes, nose, throat, lungs and skin.
Expesure to hydrogen sulfide causes dizziness,
headaches and vomiting. Chronic exposure to
these and the other toxic compounds produces
chronic effects to the liver, kidneys and other
organs, depresses and destroys the immune sys-
tem, affects the blood, causes porphyria and
even cancer. The chronic effects of two of them
is to degenerat2 the human reproductive system.
Epichlorohydrin, ethyl acrylate, toluene, cyclo-
hexane and glycidyl ether all affect the central
nervous system. Ethyl acrylate and toluene
cause heart arrhythmias or flutters. Cyclohex-
ane causes lethargy, depression, erratic blood
pressure and sudden nosebleeds. The evidence
was recurrent - as the details of our discussion
relate - that the plaintiffs and others exposed
to the Alcolac toxic emissions manifested both
these expected acute and chronic effects.

The fifth element is to determine if others have
been similarly exposed and similarly affected.
That component of the causation inquiry, the
expert concluded, was readily met by the multi-
ple descriptions of the thirty-one plaintiffs as
well as by the sixty nonlitigant witnesses of
commonly observed related events - the smoke,

91

vapors, foam and other emissions from Alcolac,
the inhalations of the various odors - common
episodes of exposure, common incidences of acute
and chronic effects as disclosed by the examina-
tions and tests of the plaintiffs and by de-
scriptions given in testimony by the non-
litigants. It was the remarkable statistics of
commonality of exposure and effect among not
only the thirty-one plaintiffs, but also among
the sixty nonlitigant residents, which height-
ened the probability to a reasonable medical
certainty that the Alcolac emissions were the
cause of the diseases diagnosed in the thirty-
one plaintiffs. Thus, although the incidence of
numbness and tingling in the extremities is 2%
in the normal population, among the plaintiff
and nonlitigant community, the incidence was
between 50% and 60%. That manifestation, as the
laboratory tests confirmed, was a symptom of
peripheral nervous system abnormality. The
laboratory tests of the plaintiffs [as our
discussion explains] disclosed that all of the
plaintiffs suffer from depressed immune systems
and altered cells. They all suffer from abnor-
mal liver metabolism. They all suffer central
nervous system damage, except for Lyle Turley,
who was not tested because of his youth. The
laboratory tests for fertility reported abnormal
results for all the seven males who submitted to
that procedure. The tests established also that
87% of the plaintiffs suffered some form of
porphyria - a very rare disease in the absence
of a toxic source. The expert deemed that
result "incredible" - and the probability of
such incidence in a normal population a quintil-
lion [one billion billion] in the absence of
toxic poisoning. It was the unusually high
incidence of symptoms, physical manifestations
and abnormal laboratory test results of the
several bodily organs shared in common by all
the plaintiffs which constituted persuasive
"markers" for the expert that there was an
"extraordinarily strong cause and effect" con-
nection between the offending toxic agents and
the manifestations and disease the plaintiffs
displayed.

The sixth and final element of the causation
inguiry is to determine whether or not the
pathology found from the laboratory tests is of
the kind expected. The pathology disclosed by
the examination of the patients - peripheral
neuropathy, memory loss, fatigue, and such
manifestations - all was of the kind expected
from the exposure to the toxic chemical emission
agents. The laboratory results of the immune

92

panel studies, the porphyrin counts, and other
test procedures [we presently describe] all
confirmed injury and damage to the organ systems
expected from chronic exposure to the toxic -
agents involved in the Alcolac production proc-
ess.

Tt is evident that to evolve a diagnosis, environmental
medicine draws upon other sciences and disciplines - among them,
occupational medicine, epidemiology, industrial hygiene and bio-
statistics. In the case where the point source [the related
event] is the operation of a chemical plant, toxicology also
impinges. A certification in the environmental and occupational
medicine specialty, the expert noted, requires learning and
adeptness in each of these cognate disciplines. The expert pre-
sented by the plaintiffs to derive causation and diagnosis, Dr.
Bertram Carnow, was a polymath whose credentials included board
certifications in preventive medicine and the occupational medi-
cine subspecialty, in pulmonary medicine and in toxicology. He was
an early founder of the environmental medicine subscience, co-
chairman of the national certification board for environmental and
occupational medicine and conducted numerous epidemiological
studies for government, scientific foundations and labor on the
effect of chemical and organic pollutants on human populations.2?
His testimony was received by the court as that of an expert in
environmental medicine, occupational medicine, internal medicine,

preventive medicine, toxicology and epidemiology.

The curriculum vitae of the witness, Dr. Bertram Carnow, extends
over more than 100 pages of transcript testimony. It draws a
portrait of a practitioner, scientist and teacher of internation-
al reputation in environmental and occupational medicine. He

holds the rank of professor at the Illinois Medical School and at
the School of Public Health of the University of Illinois. His
advice and expertise has been often engaged by the agencies of _
the United States and foreign governments as to the effects of
toxic chemicals on populations; and other aspects of medical and
biological causation.

93

Dr. Bertram Carnow and Dr. Ruth Conibear [his wife]
operate Carnow, Conibear and Associates [CCA], a consultation firm
which offers a wide range of occupational and environmental serv-
ices to government, business and individuals. It maintains a
clinic with laboratories, medical equipment and patient facili-
ties. It is supported by a staff cf internists, toxicologists,
industrial engineers and other professional specialists and con-
sultants.4° The plaintiffs all presented themselves at CCA in
August of 1984 for evaluation over 4 period of two days by Dr.
Carnow. [Four of the plaintiffs - Betty Elam, John Lawrence,
Gwendolyn Lawrence and Charlotte Phillips - were previously exam-
ined at CCA in September of 1983, the year before.] The patient
evaluation rested on three components: symptoms, physical find-
ings and laboratory test results.

It is the postulate of environmental medicine, Dr.
Carnow explained, that cause is a cognate of diagnosis, and there-
fore a cognate of treatment, as well. It is for that critical
reason, he said, that to derive a reliable profile that a disease
was from an environmental cause, not only must the environmental
factors be validly established [that is, Alcolac as the source of
the toxic emissions, the quantities, the toxicity of the agents,
how they enter the human body, etc.], but also the risk variables
of the particular individual afflicted, and the biological end
point. The risk variables relate to an assessment of whether the
Gisease diagnosed was altogether the result of chemical poisons or
rather of viral origin or of a genetic predisposition. Thus, a
genetic deficiency in alpha, antirypsin predisposes to infections

of the lung, as do some toxic chemicals. The risk variables relate

40 pred Boelter, the industrial hygienist who conducted the tests at
the Alcolac bioponds in June of 1985 and two previous tests

outside the premises, was such a professional staff specialist at
CCA.

94

also to the mode and habits of life of the person. Thus, a ciga-
rette smoker exposed to acrylates, epichlorohydrin or allyl alco-
hol is more susceptible to severe reaction and disease than a
nonsmoker. The biological end point is the effect the toxic
chemical has on the body ~ whether the organs are diseased. In
essence, it is another confirmation of causation.

The process of evaluation at CCA began with an interview
of each of the plaintiff-patients. It delved intensively into the
family, social, occupational and environmental histories of each,
as well as the clinical medical history, present illness, symptoms
and complaints. The inquiry probed the environmental factors
which the patient related to the symptoms and complaints. The
response invariably described the sequence of the commencement of
Alcolac operations, the incident of odors, vapors, fumes and other
emissions, and physical manifestations of irritation to the eyes,
nose, throat, skin, and others. The inquiry probed other environ-
mental factors which the patient related to the Alcolac emissions
% the appearance of white residue and foam on plant and animal
life with the sequel of blighted vegetation and diseased or dead
animals. These environmental phenomena, the expert explained,
afford insight into toxicity as well as dose, and of the temporal
relationship between event and effect so significant to the deter-
mination of causation. Another function of the interview was to
enable the examiner to determine the laboratory tests to be ad-
ministered among the thousands available. That determination was
aided by an inventory of the bodily systems most predictably
affected by exposure to the toxic chemicals used and produced by
Alcolac. In that component of the interview each organ system was
"gone through to try to help the patient remember things that he

might have forgotten."

95

Dr. Carnow deemed the history derived from the patient
interview and the laboratory tests as the most vital aspects of
evaluation, and the physical examination less so. The witness
explained: physical examination is most informative where the
patient presents acute symptoms - such as bleeding, traumatic
injury, or other such palpable manifestation. Physical examination
is least informative in cases of chronic exposure to toxic chemi-

cals of the kind used at Alcolac because they induce multiple
Symptoms which mimic other diseases, and so are more difficult to

diagnose in the absence of laboratory tests. In such cases, also,
physical examination - which for the most part explores the exte-
rior of the body - is least informative to the diagnosis of dis-
ease because the toxic chemicals Alcolac emitted are systemic,
metabolic poisons which attack and degenerate interior organs.
Thus, by the time those manifestations of disease are palpable on
physical examination [such as enlargement of the liver, spleen, or
other organ], the disease is so advanced that virtually no other
aid to diagnosis is needed.

The process of patient evaluation at CCA was conducted
under protocols defined by Dr. Carnow and delegated to staff
physicians, specialists and consultants. The symptoms gathered
from the interview of each plaintiff-patient were classified by a
nosologist - a specialist who conforms patient responses into a
common symptom according to internationally accepted definition.
Dr. Carnow then reviewed the found symptoms and, as validated,
sanctioned the entry of the symptom as an abnormality of the
SYMPTOMS chart of the plaintiff-patient. The chart was devised to
reflect the human organs most susceptible to injury from exposure

to the chemicals Alcolac used, produced and emitted.41 Only those

41see APPENDIX L-l, L-2 and L=-3 are typical SYMPTOMS charts as
completed and validated by the expert opinion of Dr. Carnow.
They reflect the manifestations and complaints of three plain-
tiff-patients, a random cross-section of the litigants: Dorothy

96 ,

Symptoms validated by Dr. Carnow as caused by exposure to Alcolac
toxic emissions or which represented a severe aggravation of a

pre-existent condition were noted under the organ affected. The
notation was by an orange dot. That determination of symptom 4

rested on the information derived from the 1984 evaluation process

at CCA as supplemented by the trial testimony of plaintiff-patient
in 1985. The age and life expectancy of each of the plaintiffs,
otherwise proven, were superscribed on each chart.

The physical examinations of the plaintiffs then fol-
lowed and were conducted under the protocol defined by Dr. Carnow
and delegated to CCA staff physicians Benjamin and Adamji, board
certified internists. The abnormalities the examinations dis-
closed, again as validated by the expert opinion of Dr. Carnow to
be effects of the Alcolac emissions, were entered on the PHYSI-
CAL FINDINGS chart of each plaintifft.4? The chart was designed
to reflect the organ systems most likely to manifest physical
findings from exposure to toxic chemicals of the Alcolac ilk. They
included the eye, ear, nose, throat and

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1488%3A2. Public record. Not legal advice.