0511
 1     UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 2                        REGION 5
 3   
 4   __________________________________________________
 5   In the Matter of:
 6   
 7   BEHNKE LUBRICANTS, INC.,
 8   MENOMONEE FALLS, WISCONSIN
 9                      Respondent,
10   
11                          Docket No; FIFRA-05-2007-0025.
12   __________________________________________________
13   VOLUME III
14   4/2/08
15   
16   
17                Proceedings had and evidence taken,
18   beginning at 8:30 a.m., April 2, 2008, at the Waukesha
19   County Courthouse, 515 West Moreland Boulevard, Room
20   
21   350, Waukesha, Wisconsin, before Ms. Barbara Gunning,
22   
23   Administrative Law Judge, to whom the matter in
24   
25   difference between the parties has been submitted.
0512
 1                  A P P E A R A N C E S
 2   
 3   MS. BARBARA GUNNING, Administrative Law Judge
 4   1200 Pennsylvania Avenue, N.W.,
 5   Washington, DC  20460
 6   
 7   
 8   FOR THE COMPLAINANT:
 9                U.S. EPA, Associate Regional Counsel,
10   Region 5, 77 West Jackson Boulevard, Chicago, Illinois
11   60604-3590, by MS. NIDHI O'MEARA, MR. JAMES J. CHA and
12   MR. ERIC H. OLSON.
13   
14   
15   FOR THE RESPONDENT:
16                  MCILNAY & BUTTON, LTD., 1150 Washington
17   Street, Grafton, Wisconsin  53024-1916, by MR. BRUCE A.
18   MCILNAY.
19   
20   
21   
22   
23   
24   
25   
0513
 1                          I N D E X
 2   
 3   WITNESS                 EXAMINATION                PAGE
 4   Dr. Tajah Blackburn     By Mr. Cha................. 514
 5                           By Mr. McIlnay............. 520
 6                           By Mr. Cha................. 537
 7                           By Mr. McIlnay............. 539
 8                           By Mr. Cha................. 542
 9   Mr. Eric Peter          By Mr. McIlnay............. 549
10                           By Ms. O'Meara............. 640
11                           By Mr. McIlnay............. 725
12                           By Ms. O'Meara............. 733
13   Mr. Troy Paquette       By Mr. McIlnay............. 738
14   
15   
16                       E X H I B I T S
17   COMPLAINANT'S                         RECEIVED  REJECTED
18   51......................................  518
19   54......................................  518
20   55......................................  519
21   56......................................  519
22   71.....................................            725
23   
24   RESPONDENT'S                          RECEIVED  REJECTED
25   69..................................... 640
0514
 1                      P R O C E E D I N G S
 2                      MR. CHA:  We'll recall Dr. Blackburn.
 3                      JUDGE GUNNING:  I'll just remind
 4          Dr. Blackburn that you're still under oath.
 5                      THE WITNESS:  Thank you.
 6                      MR. CHA:  Thank you, Your Honor.
 7                         EXAMINATION
 8   BY MR. CHA:
 9   Q      Dr. Blackburn, could you please turn to
10          Complainant's Exhibit 8c.  It's in Volume I.
11                      MR. CHA:  Your Honor, may I approach
12          the witness?
13                      JUDGE GUNNING:  Yes.
14                      MR. CHA:  Thank you.
15   BY MR. CHA:
16   Q      Dr. Blackburn, if you could just please take a
17          moment and look over that exhibit.
18   A      Is there any page in particular?
19   Q      Just generally, and then let me know when you're
20          finished.
21   A      Okay.
22   Q      Dr. Blackburn, is this another document which you
23          reviewed as part of your work in this case?
24   A      Yes.
25   Q      If you could turn specifically to the three pages
0515
 1          that are Bates stamped EPA 0270271 and 272.  Just
 2          for the record, Dr. Blackburn, what product is
 3          being discussed on these pages?
 4   A      POLY-Guard FG-2 on Page 0270, the same product on
 5          0271, and the same product on the final
 6          Page 0272.
 7   Q      Thank you, Doctor.  Dr. Blackburn, in general
 8          terms what information appears on these pages?
 9   A      It appears to be data that has been collected
10          over time for one particular test, and over a
11          period of time for the other tests as well.
12   Q      Okay.  Does the information on these pages
13          provide you with enough information to evaluate
14          the efficacy of the antimicrobial properties of
15          this product?
16   A      No, it does not.
17   Q      Okay.  And why not?
18   A      Based on the standards set by the agency, it's
19          silent, the data is silent on what test was
20          actually conducted to generate the data.  It's
21          silent on the conduct, the study conduct, were
22          the necessary controls present, what the contact
23          time was for the products to be in contact with
24          the surface, exposure time, the actual test
25          organisms.  There are multiple yeasts that exist,
0516
 1          multiple molds that exist.  Coli, in the
 2          scientific arena we rarely refer to E. coli as
 3          just coli.  It has a scientific name requiring
 4          both a genus name and a species name.  And on the
 5          other test as well, the Listeria is tested here,
 6          but again it's silent as to where the source of
 7          the strain was isolated from.  The yeast and
 8          mold, again, I don't know what yeast colonies,
 9          what mold colonies they're referring to, what
10          test organisms were tested.  And the test method
11          again is not present on any of these documents.
12          The study conduct is missing as well.
13   Q      In your opinion, would you consider this data
14          that appears on these three pages to be reliable?
15   A      No.
16   Q      Just a few more questions, Dr. Blackburn.  We
17          previously -- you previously identified certain
18          claims that Behnke's Micronox technology was
19          effective against, both gram-positive and
20          gram-negative bacteria.  When a product makes
21          this kind of claim, why is an efficacy evaluation
22          important?
23   A      That classification of gram-negative and
24          gram-positive tells scientists, tells end users,
25          tells the consumer briefly what organisms are
0517
 1          going to be placed on the label, but it does not
 2          provide enough information to detail which exact
 3          organism is classified as gram-positive or
 4          gram-negative and will be placed on the label.
 5          So it's important that efficacy is conducted
 6          against the actual organism that's claimed so
 7          that the end user knows and the agency is
 8          confident after reviewing the efficacy
 9          evaluation, the data, that the product is indeed
10          efficacious and will provide the level of
11          performance that's expected.
12   Q      And where a product makes claims that it's
13          effective against yeasts and molds, why is an
14          efficacy evaluation important?
15   A      Well, there are some yeasts that we classify as
16          pathogenic, public health, and some molds that we
17          classify as public health and pathogenic, and
18          it's important to disclose which organisms were
19          tested on the label as a point of reference and
20          to insure that efficacy -- or the product will
21          perform at the level which it is intended to
22          perform.
23   Q      Thank you, Doctor.
24                      MR. CHA:  Your Honor, I have no
25          further questions.  I would move to admit
0518
 1          Complainant's Exhibits 51, 54, 55 and 56 into
 2          evidence.  I'll repeat those, Your Honor.
 3          Complainant's Exhibits 51, 54, 55 and 56.  And
 4          just to remind everyone, these were standard
 5          operating procedures and guidelines for efficacy
 6          evaluations.  They're admitted strictly for the
 7          purpose of providing background for the types of
 8          guidance documents that Dr. Blackburn relies upon
 9          in performing her work.  Since she is offered as
10          an expert witness, those guidelines may assist
11          the trier of fact in evaluating her testimony.
12                      MR. MCILNAY:  Your Honor, if we could
13          just go through them quickly, refresh my
14          recollection.  51 was the first one?
15                      MR. CHA:  Correct.
16                      MR. MCILNAY:  No objection.
17                      JUDGE GUNNING:  Please mark
18          Exhibit 51 as received.
19                      Now, 50 also has already been
20          received.
21                      MR. CHA:  The next one is 54.
22                      MR. MCILNAY:  54.  No objection, Your
23          Honor.
24                      JUDGE GUNNING:  Please mark 54 as
25          received.
0519
 1                      MR. CHA:  55 and 56 were the next
 2          exhibits.
 3                      MR. MCILNAY:  That's in the next
 4          volume.
 5                      MR. CHA:  I believe so, yes.
 6                      MR. MCILNAY:  No objection to 55.
 7                      JUDGE GUNNING:  All right.  Please
 8          mark 55 as received.
 9                      MR. MCILNAY:  The next one is?
10                      MR. CHA:  56.
11                      MR. MCILNAY:  No objection to 56.
12                      JUDGE GUNNING:  Okay.  Please mark 56
13          as received.
14                      MR. CHA:  Thank you, Your Honor.
15                      Again, no further questions at this
16          time.
17                      JUDGE GUNNING:  Okay.
18                      MR. MCILNAY:  If I might have just a
19          second, Your Honor.
20                      JUDGE GUNNING:  Yes.
21                      MR. MCILNAY:  This is a question I --
22          Complainant's Exhibit 47, I don't have a note on
23          whether that was offered and received.  That's
24          the doctor's curricula vitae.
25                      MR. CHA:  It has been received into
0520
 1          evidence, I believe, pursuant to the joint
 2          stipulation and motion to admit.
 3                      JUDGE GUNNING:  That's what I also
 4          have as identified.
 5                         EXAMINATION
 6   BY MR. MCILNAY:
 7   Q      Good morning, Dr. Blackburn.
 8   A      Good morning.
 9   Q      I would like to start with your curricula vitae.
10          That would be Complainant's Exhibit 47 in Volume
11          2.
12   A      I do not have a Volume 2.
13                      MR. CHA:  Your Honor, may I approach?
14          I believe I set it aside earlier.
15                      JUDGE GUNNING:  Yes.
16                      MR. MCILNAY:  I can do that.
17   BY MR. MCILNAY:
18   Q      More specifically, Doctor, I want to ask some
19          questions about your position.  I believe it
20          appears on EPA Page 902, under the heading
21          Additional Laboratory Experience.
22   A      Okay.
23   Q      Could you describe, again very briefly, what your
24          role was with Merico/Earthgrains?
25   A      Yes.  My role -- well, my title was Quality
0521
 1          Assurance Inspector/Microbiologist, and it was my
 2          responsibility to tour the facility to insure
 3          that proper sanitization protocols had been
 4          followed by measuring colony formations via plate
 5          count, and using an IDEXX system, basically emits
 6          light when certain colonies are being -- or when
 7          bacteria is at a certain load.
 8   Q      Okay.  And I'm not sure I understand
 9          Merico/Earthgrains/Nestle Refrigerated Dough
10          Production Facility, did you actually work for
11          Nestle or was this a --
12   A      It's all three.  It's all three.
13   Q      So all three?
14   A      Yes.  Earthgrains was the overall heading.  It
15          originally switched from Merico to Earthgrains,
16          and then we were contracted, we had contracted
17          with Nestle in order to generate their products
18          as well.
19   Q      So Nestle was a customer, correct?
20   A      Well, it was part of the production facility.
21   Q      Okay.  And the microbes you were testing for
22          would include Salmonella?
23   A      Salmonella -- any potential pathogenic enteric
24          organism, Salmonella, E. coli, Listeria.  It
25          would be a whole gamut of things, because you
0522
 1          would also use certain selective agents or
 2          identifying markers to determine what type of
 3          microbes were potentially present.
 4   Q      Okay.  And the reason that you did these
 5          inspections and testing was for food safety
 6          purposes, correct?
 7   A      Yes.
 8   Q      You didn't want those human pathogens to be in
 9          the food that was produced, correct?
10   A      Or animal pathogens, yes.
11   Q      Or animal pathogens.  Well, I take it cookie
12          dough was intended for human consumption.
13   A      It is, but those pathogens can also be animal
14          pathogens as well, based on where they're
15          isolated from.
16   Q      All right.  I'm not familiar with the processing
17          in the plant.  Were there lubricants used on the
18          machinery?
19   A      I'm not sure.  I never interfaced with the
20          lubricant part of it.  That would be more for the
21          maintenance side of the plant production.
22   Q      All right.  You were asked some questions
23          regarding Exhibit 8c, I believe, just now.
24   A      Okay.  Uh-huh.
25   Q      With regard to efficacy testing?
0523
 1   A      Okay.
 2   Q      In your position with Merico/Earthgrains, were
 3          you consulted on purchasing of products used to
 4          clean the plant?
 5   A      No, I was not.
 6   Q      Did you have any familiarity with how the
 7          purchasing decisions were made?
 8   A      No.
 9   Q      And help me here.  I don't want to -- relative to
10          receipt of your postgraduate degree, when were
11          you employed there?  Was it after you received
12          your Ph.D.?
13   A      No, it was after I received my BA.
14   Q      Doctor, are you familiar with the acronym HACCP?
15   A      I've heard of it, but I'm not --
16                      MR. CHA:  I'm going to object, Your
17          Honor.  This goes beyond the scope, and this
18          witness was not ever offered to talk about the
19          HACCP program of the USDA.
20                      MR. MCILNAY:  Your Honor, I'm getting
21          background information on the witness'
22          experience.
23                      JUDGE GUNNING:  I'll allow it.
24                      THE WITNESS:  No.
25   
0524
 1   BY MR. MCILNAY:
 2   Q      Did you have occasion in the course of your
 3          employment with Merico/Earthgrains to review
 4          products used in that plant for their efficacy in
 5          eradicating or mitigating the microbes that were
 6          of concern, Listeria, Salmonella, etc.?
 7   A      So your question is whether or not I conducted
 8          efficacy evaluation on purchased products?
 9   Q      Did you review the efficacy data?
10   A      No, I did not, not for the individual products,
11          no.
12   Q      And did you do any efficacy testing with respect
13          to those products?
14   A      No.
15   Q      Were there occasions in which after your
16          inspection, the counts of E. coli, Listeria, the
17          various microbes that we've been discussing, were
18          higher than was acceptable within the plant?
19   A      Yes, there were occasions.
20   Q      What were the procedures that you followed when
21          that was discovered?
22   A      Multiple procedures based on the standard
23          operating procedures that were in place.
24   Q      And the standard operation procedures that were
25          in place was something that you helped co-author
0525
 1          and edit, correct?
 2   A      Exactly, from a microbiological standpoint.
 3   Q      Help me.  I don't have the standard operating
 4          procedures in front of me, and I understand it's
 5          been several years since you've done it.  So I'm
 6          going to try to be very specific.  Did those
 7          standard operating procedures include reviewing
 8          the products being used in the plant to eradicate
 9          or mitigate the microbes for their efficacy?
10   A      The standard operating procedure document was
11          pretty extensive.  My focus was not on that
12          aspect.
13   Q      So your answer is, you don't know?
14   A      That was not my focus, so I can't say whether or
15          not that statement was in there, what the
16          procedure was for that.  That was not my focus in
17          contributing to the SOP in general.
18   Q      You testified on direct examination that you've
19          had occasion to tour a bovine facility.  How many
20          occasions have you?
21   A      One bovine and one swine.
22   Q      And what was the purpose of your visits?
23   A      The purpose of my visit to the swine facility was
24          to obtain the pulmonary artery for endothelial
25          cell isolation.  The purpose of my tour of the
0526
 1          bovine facility was preparation for this case.
 2   Q      So the swine facility, you were actually going
 3          to -- pulmonary artery would be lungs?
 4   A      It's actually the artery that's off of the lungs,
 5          the most part, where the blood is pumped away
 6          that's been oxygenated, pumped away from the
 7          lungs for systemic circulation.
 8   Q      And for that purpose when you visited the plant,
 9          did you tour the plant?
10   A      Yes.
11   Q      And how long ago was that, Doctor?
12   A      That was back in the early 90's.
13   Q      The bovine facility you said was in preparation
14          for this case?
15   A      Yes.
16   Q      When did you make that visit?
17   A      In January, 2008.
18   Q      And what plant did you visit?
19   A      American Foods.
20   Q      The Green Bay plant?
21   A      Yes.
22   Q      Did you meet with anyone from American Foods
23          while you were there?
24   A      Yes.
25   Q      Who did you speak with?
0527
 1   A      We toured the facility with Josh Rybicki, and I'm
 2          not sure of the other participants.
 3   Q      You say, we toured the plant.  Were there more
 4          people there besides yourself that were visitors?
 5   A      Yes.
 6   Q      Who was with you?
 7   A      Part of the counsel.
 8   Q      I'm sorry.
 9   A      Part of the counsel.
10   Q      Okay.  Did you query anyone at American Foods
11          whether they do their own efficacy testing on
12          their greases or oils?
13   A      No, I did not.
14   Q      Did you have an opportunity to view the
15          production as it was in process?
16   A      The production of --
17   Q      The -- whatever they produced there, beef?
18   A      Yes.
19   Q      Okay.  And did you query anyone while you were
20          there as to how they used the Behnke Lubricants
21          that they purchased?
22   A      They actually told us how they used them.
23   Q      And do you recall what some of those applications
24          were?
25   A      Yes.
0528
 1   Q      What do you recall?
 2   A      They spoke of the gears, the overhead gears, the
 3          gears, I guess, associated in closed boxes.
 4   Q      Overhead gears.
 5   A      Or chains.
 6   Q      Or chains?
 7   A      Or hooks, or whatever, whatever is associated
 8          with that.
 9   Q      Dr. Blackburn, there should be the binders that
10          have --
11   A      These?
12   Q      Yes.  These are Respondent's exhibits.  And if
13          you would, could you please turn to Respondent's
14          Exhibit 53.  Has Bates stamp number RS -- R-e-s-p
15          00079.  Have you found that?
16   A      Yes, I have.
17   Q      In preparing for your testimony in this case,
18          have you had an opportunity, or were you asked to
19          review this document?
20   A      Yes.
21   Q      And so you've reviewed this document before?
22   A      In preparation for this case, yes.
23   Q      Yes.  And among other things, this is an FDA
24          Guidance concerning antimicrobial food additives;
25          is that correct?
0529
 1   A      It is.
 2   Q      Okay.  And having reviewed this document, can you
 3          form an opinion as to whether or not someone
 4          subject to these regulations would be required to
 5          produce the kind of efficacy data that you would
 6          find acceptable, as opposed to what you described
 7          earlier?
 8                      MR. CHA:  I'm going to object, Your
 9          Honor.  First of all, Dr. Blackburn didn't talk
10          about any FDA studies.  And, second, Counsel is
11          assuming facts not in evidence.  The question
12          assumes facts not in evidence, specifically that
13          assuming someone is subject to these regulations.
14          It's also vague.  What does subject to the
15          regulations means.
16                      JUDGE GUNNING:  I'll allow the
17          question, but additional information will be
18          needed.
19                      MR. MCILNAY:  Absolutely.
20   BY MR. MCILNAY:
21   Q      Let me back up.  You are an expert witness, and
22          what I'm asking you is a hypothetical.  And
23          perhaps it would be helpful if we were to turn to
24          Respondent 008.
25                      MS. O'MEARA:  Is that 80?
0530
 1                      MR. MCILNAY:  Oh, I'm sorry.  88.
 2                      THE WITNESS:  88.
 3                      MR. MCILNAY:  I withdraw that.  I
 4          withdraw that.
 5   BY MR. MCILNAY:
 6   Q      What I'd like you to do, Doctor, is take a moment
 7          and read sections J and D -- or J and K on
 8          Page 87.  Okay.  First, I'd like to ask you a
 9          couple of questions about sub J.  This states,
10          however, there are a number of resources specific
11          to microbiological methods that the agency
12          recommends.  FDA publishes an online version of
13          the Bacteriological Analytical Manual.  Did you
14          have occasion to review the Bacteriological
15          Analytical Manual prior to today?
16   A      No.
17   Q      It states, Furthermore, FDA maintains a website
18          with numerous links to related resources on
19          microbiological methods.  Did you have an
20          opportunity or occasion to review that
21          publication?
22   A      No.
23   Q      Lastly, it states, Also, FSIS -- and by the way,
24          do you know what that acronym stands for.
25   A      Not directly, no.
0531
 1   Q      Maintains a Microbiology Laboratory Guidebook of
 2          current protocols for analytical tests by FSIS in
 3          its regulatory activity on meat, poultry and egg
 4          products.  These test procedures may be useful in
 5          the experimental design of technical effect
 6          studies.  Did you have occasion to review that
 7          document?
 8   A      No.
 9   Q      Turning now to sub K, could you read the first
10          sentence to yourself?
11   A      Okay.
12   Q      Okay.  Are you familiar with the terminology
13          that's used, as an example, a five-log reduction
14          in the number of microbes targeted?
15   A      Yes, I am.
16   Q      And could you explain what that means?
17   A      A log reduction is basically a 90 percent
18          reduction in the number of organisms that are
19          originally on a surface, etc.  A five-log
20          reduction is considered -- for an example, if you
21          start with a million colonies, a five-log
22          reduction will result in ten colonies remaining.
23   Q      And during your direct testimony you were asked
24          by counsel for the EPA why misleading claims, I
25          believe was the word, might be dangerous to the
0532
 1          public.  And you used the example of an E. coli
 2          breakout at a daycare center.  Do you recall
 3          that?
 4   A      Yes.
 5   Q      And that somebody at the daycare center might go
 6          buy a product that claimed to mitigate E. coli,
 7          but if there were no efficacy testing, it might
 8          not work, correct?
 9   A      Potentially.
10   Q      Yes.  Based on your experience with -- and I
11          apologize, I'll refer to it as the Nestle frozen
12          dough employment, how would you describe the
13          sophistication of that customer versus a daycare
14          center?
15   A      What are you defining as sophistication?
16   Q      Well, I'm going to withdraw the question.  You
17          testified that you don't have the background in
18          the purchasing at that plant, so I'm just going
19          to withdraw the question.
20                      In your years of experience, whether
21          with Nestle or the EPA or the -- and you have to
22          help me with this -- the food -- or I mean the
23          Health -- what's your other position?
24   A      Public Health Service.
25   Q      Public Health Service.  Have you any past
0533
 1          experience with specifically food producers who
 2          do their own efficacy testing?
 3   A      I haven't had any personal experience via
 4          literature search, etc., reading manuscripts or
 5          whatever.  I would suppose that you would do some
 6          type of R&D when you're selecting products, but
 7          they rely heavily, I know, on EPA-registered
 8          products for use in the sanitization process.
 9   Q      In the sanitization process?
10   A      Yes.
11   Q      Okay.  Let's talk about that a minute.  You've
12          been here throughout this hearing, and you heard
13          Mr. Rybicki's testimony, correct?
14   A      Yes, I did.
15   Q      And I asked Mr. Rybicki about the sanitation
16          process, and he testified that that process would
17          take place post production, and the only
18          foodstuffs or animal parts that might be in there
19          would be waste.  Do you recall that testimony?
20   A      I don't recall him saying that the only thing in
21          it would be waste.  No, I don't.
22   Q      Well, based on your experience with Nestle, when
23          you would do the sanitation process, would there
24          be food product in the room?
25   A      It may be some residual, they may be actually
0534
 1          loading things, and it really depends.
 2                      MR. CHA:  Your Honor, I don't know if
 3          this is an objection.  I just want to be clear
 4          that terminology is correct.  I believe that
 5          Dr. Blackburn has used the word sanitization
 6          process.  Mr. McIlnay, unless I heard wrong, used
 7          the word sanitation.  And I believe those are two
 8          separate words and have separate meanings, and it
 9          could be important in this case.
10                      MR. MCILNAY:  If I did, I apologize.
11          Sanitization is what I meant.  Thank you,
12          Counsel.  And let the record reflect that was my
13          intent.
14   BY MR. MCILNAY:
15   Q      And was that your understanding, if I did?
16   A      Sanitization.
17   Q      Yes.
18   A      Yes.
19   Q      Well, were the standard operating procedures, did
20          they cover the sanitization process?
21   A      I'm positive they did, but I was not involved in
22          that aspect of the document.
23   Q      All right.  So as far as what the standard
24          operating procedures provided with regard to
25          foodstuffs in the facility during sanitization,
0535
 1          you're not familiar with?
 2   A      I don't know what it detailed.
 3   Q      All right.  Are you familiar with any of the
 4          products that were used in the sanitization
 5          process to disinfect or sanitize the facility?
 6   A      As I was employed there over maybe 10, 12 years
 7          ago, I don't remember the exact products.  No, I
 8          don't.
 9   Q      Okay.  Do you recall whether there was anything
10          in the standard operating procedure addressing
11          concern with the sanitization products becoming
12          part of food?
13   A      I'm sure there was.  But as I mentioned earlier,
14          I was only responsible for the microbiological
15          analysis, the test methods that took place in the
16          lab, and not the actual process that took place
17          on the production floor.
18                      MR. McILNAY:  One moment, Your Honor?
19                      JUDGE GUNNING:  Yes.
20   BY MR. MCILNAY:
21   Q      In connection with your -- well, based on any of
22          your experience, whether with Nestle or with EPA,
23          do you have any knowledge of food processing
24          industry standards in terms of doing the type of
25          inspection and lab work that you did?
0536
 1   A      Yes, I know the levels for that.  As I mentioned
 2          before, I've conducted this maybe 10 to 12 years
 3          ago, so what they are to present date, I'm not
 4          sure of, no.
 5   Q      Okay.  Based on your experience, can you tell the
 6          Court whether or not what you -- the role you
 7          played, whether that is common throughout the
 8          industry, the food processing industry?
 9   A      The role that I played in what, as Quality
10          Assurance Inspector/Microbiologist?
11   Q      Yes.
12   A      Yes, I think that role is pretty consistent.
13   Q      And, again, one of the purposes of your role was
14          to insure food safety?
15   A      Food safety and the quality of the final product.
16   Q      One last question.  You testified yesterday, I
17          believe, that the microbes identified in some of
18          the literature, particularly Salmonella, E. coli,
19          and Listeria, were not deleterious to lubricants;
20          is that correct?
21   A      Yes.
22   Q      And by that I take it to mean that these are not
23          bacteria that would assist or lead to the
24          degradation, breakdown or odor of those products;
25          is that right?
0537
 1   A      No, I didn't reference odor.
 2   Q      Okay.  All right.  Let me ask about the breakdown
 3          life cycle of the product.  Let me turn it
 4          around.  What did you mean by that testimony?
 5   A      That those three organisms are not -- do not
 6          break down the grease within itself.
 7   Q      Okay.  And how do you know that?
 8   A      Literature.
 9   Q      All right.  And was that literature reviewed in
10          preparation for this case?
11   A      Yes, and as part of my studies as well.  I mean,
12          you learn the characteristics of organisms, how
13          they perform in their environment and what they
14          typically -- what they break down, what they
15          metabolize.
16                      MR. MCILNAY:  Thank you.  No further
17          questions.
18                      JUDGE GUNNING:  Thank you.
19                      MR. CHA:  Your Honor, I just have a
20          few brief questions on redirect.
21                         EXAMINATION
22   BY MR. CHA:
23   Q      Dr. Blackburn, if you could look back at
24          Respondent's Exhibit 53.  First, just a general
25          question, Dr. Blackburn.  How does Respondent's
0538
 1          Exhibit 53, the FDA Guidance document, compare
 2          with EPA's guidelines for conducting efficacy
 3          evaluations?
 4   A      It's pretty silent on the -- what we do as an
 5          agency.  It doesn't make reference to the
 6          different categories of disinfectants, sanitizers
 7          that we use.  It doesn't state which methods to
 8          use.  It gives you, I guess, a selection via the
 9          manual choices.  It doesn't give a set
10          performance standard.  It does not give set
11          organisms which are to be tested.  So it's silent
12          on a lot of things that the agency looks for in
13          its evaluation.
14   Q      In your opinion, could this guidance document,
15          Respondent's Exhibit 53, serve as a substitute
16          for the EPA guidelines on efficacy evaluations?
17   A      No.
18   Q      Why not?
19   A      Well, it's silent on methodology, it's silent on
20          test organisms, it's silent on requirements
21          regarding contact time, silent on log reduction.
22          It doesn't really go into the level of detail
23          that we require on -- that the agency requires.
24          And we require that level of detailed information
25          so that there is a basis, there's a standard,
0539
 1          there's a measure which to compare products over
 2          time.
 3                      MR. CHA:  If I could have one moment,
 4          Your Honor.
 5                      JUDGE GUNNING:  Yes.
 6   BY MR. CHA:
 7   Q      One final question, Dr. Blackburn.  The EPA
 8          requirements you've just outlined for efficacy
 9          evaluations, is the EPA efficacy evaluation team
10          required to follow those guidelines and
11          requirements?
12   A      Yes, we are.
13                      MR. CHA:  Thank you, Dr. Blackburn.
14                      I have nothing further, Your Honor.
15                      MR. MCILNAY:  Could I ask that the
16          last question and answer be read back?
17                      (The question and answer were read.)
18                       EXAMINATION
19   BY MR. MCILNAY:
20   Q      Doctor, could you turn to the USDA -- or the
21          USFDA proposed guidelines, and specifically
22          Page 86.  Could you take a moment to read
23          subsection I?
24                      MR. CHA:  I'm going to raise an
25          objection.  I think the Court had ordered that
0540
 1          Respondent would be limited to what they
 2          submitted in the record.  And despite our request
 3          for production of information, Respondent has
 4          provided no evidence that there was any actual
 5          review by anyone at the FDA regarding
 6          Respondent's products.  This is just a smoke
 7          screen, with all due respect.  So I'm objecting
 8          on the grounds of relevance.
 9                      JUDGE GUNNING:  Your argument will be
10          considered in the weight accorded the document.
11          I have one quick question.  It's a Draft
12          Guidance.  Does anyone know if this has been
13          finalized?
14                      MR. MCILNAY:  I am not absolutely
15          certain, Your Honor.  The comment period has
16          expired.  But the last I looked -- and I can't
17          tell you what that is -- I had not seen the
18          final.
19                      JUDGE GUNNING:  But this document was
20          admitted, it's my understanding, pursuant to the
21          stipulations?
22                      MR. CHA:  Yes, Your Honor.
23                      JUDGE GUNNING:  Okay.  I'll allow the
24          question.
25   
0541
 1   BY MR. MCILNAY:
 2   Q      Doctor, could you look at the first sentence
 3          under the heading, not the sentence itself, that
 4          starts with, there are a number of unique
 5          circumstances that might be considered when
 6          designing a study to show an antimicrobial
 7          additive's effect.  And it goes on to describe
 8          what some of those might be.  In setting the EPA
 9          efficacy guidelines, are there similar unique
10          circumstances such as that?
11   A      There are unique circumstances with any test
12          method.
13   Q      Would you read the first sentence under the
14          heading J, into the record, please?
15   A      Okay.  FDA recognizes it is impractical to design
16          a standard experimental protocol that addresses
17          all relevant safety issues for every
18          antimicrobial agent.
19   Q      Do you have -- strike that.  Do you know if
20          that's a true statement?
21   A      I would like to know what safety issues they're,
22          you know, responding to, what the point -- what
23          their reference is.
24   Q      Okay.  In that regard then could you focus your
25          attention about a third of the way down under the
0542
 1          paragraph under the heading K, What is FDA's
 2          performance standard for a new antimicrobial food
 3          additive?
 4   A      Okay.
 5   Q      Okay.  Could you read the two sentences that
 6          begin with, Given the variability, read that into
 7          the record, please?
 8   A      Sure.  Given the variability in the intended
 9          technical effect of antimicrobial food additives
10          and types of food treated, FDA does not have a
11          single performance standard for antimicrobial
12          food additives.
13   Q      And the next sentences?
14   A      However, to prove that an additive achieves its
15          intended technical effect as an antimicrobial
16          agent, data from an efficacy study should
17          demonstrate that at a minimum there is a
18          measurable difference between the treated samples
19          and a negative control, the treatment absent the
20          active agent.
21   Q      Thank you.
22                      MR. MCILNAY:  No further questions.
23                      MR. CHA:  Very quickly, Your Honor.
24                        EXAMINATION
25   
0543
 1   BY MR. CHA:
 2   Q      Dr. Blackburn, focusing on that -- those last
 3          couple sentences that Mr. McIlnay asked you
 4          about.  Would, I guess for lack of a better word,
 5          the standards set forth in those sentences, would
 6          that satisfy EPA's requirement for efficacy
 7          reviews?
 8   A      No.  Their standard doesn't appear to be an
 9          exact.  It's says technical effect.  I'm not
10          really sure what that references.  It leaves a
11          lot to interpretation.
12   Q      Thank you, Doctor.  And do you notice that in
13          that first sentence it says, the data from the
14          efficacy study should demonstrate that, etc.  Did
15          you note the word should?
16   A      Yes, should demonstrate, uh-huh.
17   Q      And if you could turn to the page near the
18          beginning of the document.  It's Bates stamped at
19          the lower left corner Respondent RESP, 00081.
20          Now I'm going to read from the last paragraph,
21          the last full paragraph on that page.  Do you see
22          where it says, FDA's guidance documents,
23          including this guidance, do not establish legally
24          enforceable responsibilities.  Instead, guidances
25          describe the Agency's current thinking on a topic
0544
 1          and should be viewed only as recommendations,
 2          unless specific regulatory or statutory
 3          requirements are cited.  The use of the word
 4          should in Agency guidances means that something
 5          is suggested or recommended, but not required.
 6                      Do you see that paragraph?
 7   A      Yes.
 8                      MR. CHA:  Thank you, Doctor.  I have
 9          nothing further.
10                      MR. MCILNAY:  Nothing further, Your
11          Honor.
12                      JUDGE GUNNING:  Does EPA reserve this
13          witness?
14                      MR. CHA:  While I doubt we will be
15          recalling Dr. Blackburn, I will reserve her for
16          the possibility.
17                      JUDGE GUNNING:  Okay.  So thank you
18          very much for your testimony today, but
19          unfortunately you are not excused.
20                      THE WITNESS:  Thank you.
21                      MR. CHA:  Thank you, Your Honor.
22                      JUDGE GUNNING:  Yes.  Now, does that
23          conclude EPA's case in chief?
24                      MS. O'MEARA:  Yes, Your Honor.  I'm
25          sorry.  At this time EPA rests.
0545
 1                      JUDGE GUNNING:  Okay.  Well, we've
 2          done pretty well, I think.
 3                      Now, yesterday afternoon I offered
 4          both parties the opportunity to sleep on the
 5          possibility of settlement discussions.  Once
 6          again, the agency encourages such, even at the
 7          late stage of the proceeding.  I don't know if
 8          you would like to do that.  It's strictly up to
 9          the parties, and I think this would be an ideal
10          time to do it if it's going to be done.
11                      MR. MCILNAY:  Your Honor, I would
12          first of all agree with your assessment of the
13          timing.  And I would suggest it either way.  I
14          was going to ask for a short recess to get
15          organized so that we can move through the
16          Respondent's case more efficiently.  I have had
17          an opportunity to discuss my client's willingness
18          to explore the possibility, and we are certainly
19          willing to talk.
20                      JUDGE GUNNING:  EPA, would you like
21          to engage in those discussions?
22                      MS. O'MEARA:  Absolutely.  We're
23          always willing to talk.
24                      JUDGE GUNNING:  Right now it's about
25          9:30.  You need a little time to prepare.
0546
 1                      MR. MCILNAY:  Correct.
 2                      JUDGE GUNNING:  And I guess what we
 3          could do is just monitor the situation.  Is there
 4          a room available that you could all go to, to
 5          talk?
 6                      MR. MCILNAY:  Go ahead.  You're more
 7          familiar than I am.
 8                      UNIDENTIFIED:  Room 355.
 9                      JUDGE GUNNING:  Okay.  That would be
10          excellent.  And those who are not directly
11          involved, I think it would be safe to say you
12          could take a half hour if you would like to, if
13          you're not directly involved in the discussions.
14          And if someone could at some point tell me where
15          you're at, at the end of the half hour.  It's
16          going to take a little time in addition for you
17          to prepare.
18                      MR. MCILNAY:  Absolutely.
19                      JUDGE GUNNING:  Okay.
20                      MR. MCILNAY:  Thank you, Your Honor.
21                      JUDGE GUNNING:  Okay.  Thank you.
22                      (A recess was taken.)
23                      JUDGE GUNNING:  Is there someone who
24          wants to speak for the group?  I assume there is
25          no settlement.
0547
 1                      MS. O'MEARA:  There is not, but --
 2          and we are going to proceed, and I will let
 3          Mr. McIlnay speak for himself -- but the door is
 4          not shut.
 5                      MR. MCILNAY:  That would be an
 6          accurate representation.
 7                      JUDGE GUNNING:  Okay.
 8                      MR. MCILNAY:  And I apologize.  I
 9          just discovered that some documentation that I
10          thought Mr. Paquette was bringing with him to
11          assist me in my examination of my first witness
12          isn't here.  I could proceed if I could get some
13          time with Mr. Peter to -- he will be our first
14          witness -- to discuss -- to get organized.
15                      JUDGE GUNNING:  So, in other words,
16          you need additional time at this point.
17                      MR. MCILNAY:  Right, but not for the
18          purposes of settlement.  We've spent this time
19          trying to --
20                      JUDGE GUNNING:  Right.  Would
21          15 minutes do it?
22                      MR. MCILNAY:  Could I ask for --
23                      JUDGE GUNNING:  Well, if we could --
24          because we have taken a fair amount of time.  My
25          concern is now we won't be able to finish by
0548
 1          Friday.
 2                      MR. MCILNAY:  I understand.  We will
 3          do our best, Your Honor.
 4                      JUDGE GUNNING:  Okay.  Well, in the
 5          meantime, I would recommend again tomorrow
 6          morning -- I don't know what is best for you all,
 7          I find that sleeping on things sometimes can be
 8          enlightening.  And so I would recommend if you
 9          want additional time tomorrow, I would be glad to
10          give you that.
11                      MS. O'MEARA:  That's great.  Thank
12          you.
13                      JUDGE GUNNING:  So another
14          15 minutes.
15                      MR. MCILNAY:  Thank you, Your Honor.
16          In that regard I would just --
17                      JUDGE GUNNING:  How about eleven.
18                      MR. MCILNAY:  I would invite
19          counsel -- I know this is not really relevant to
20          you guys, but it's been an hour commute.  I have
21          decided to take a hotel room tonight, much closer
22          to the courthouse, so that I don't waste two
23          hours a day commuting here.  So I could be here
24          before we commence at 8:30.
25                      MS. O'MEARA:  I have no problem
0549
 1          showing up at 4 a.m. if you --
 2                      MR. MCILNAY:  That might be a bit
 3          early.
 4                      JUDGE GUNNING:  I won't be here,
 5          though.  You all can do that together.
 6                      MS. O'MEARA:  You don't want to get
 7          up at four?
 8                      JUDGE GUNNING:  That's not in the job
 9          description.
10                      MS. O'MEARA:  Tell me the time.  I'll
11          be here.
12                      MR. MCILNAY:  Okay.
13                      JUDGE GUNNING:  Okay.  That would be
14          excellent.
15                      (A recess was taken.)
16                      JUDGE GUNNING:
17                      MR. MCILNAY:  The Respondent calls as
18          its first witness Mr. Eric Peter.
19                      ERIC PETER, called as a witness
20          herein, having been first duly sworn on oath, was
21          examined and testified as follows:
22                         EXAMINATION
23   BY MR. MCILNAY:
24   Q      Mr. Peter, I can tell already we're going to have
25          a problem if you don't use the mike.
0550
 1   A      I'll use the mike.
 2   Q      Okay.  Thank you.  And, again, if I tend to drop
 3          my voice, let me know.  Mr. Peter, would you
 4          state your full name, please?
 5   A      Eric John Peter.
 6   Q      And would you spell your last name?
 7   A      P-E-T-E-R.
 8   Q      So it's not Peters?
 9   A      Correct.
10   Q      And, Mr. Peter, where do you reside?
11   A      Elm Grove, Wisconsin.
12   Q      And could you very briefly tell the Court
13          something about your educational background?  Do
14          you hold any higher educational degrees?
15   A      No, I do not.
16   Q      And have you -- did you attend any institutions
17          of post high school?
18   A      I attended about a year and a half of
19          undergraduate studies in basically chemical
20          engineering, starting that.  And after that, left
21          to join the family business.
22   Q      And what is the family business, or what was the
23          family business?
24   A      We market and produce lubricating oils and
25          greases for machinery and equipment.
0551
 1   Q      Does the family business have a name?
 2   A      Behnke Lubricants, Incorporated.
 3   Q      All right.  And approximately when did you join
 4          Behnke Lubricants?
 5   A      I joined initially doing about a year's worth of
 6          work as a truck driver in 1972.  Joined full-time
 7          late '74, '75.
 8   Q      When you started your employment with Behnke
 9          Lubricants on a full-time basis in 1974 or '75,
10          what position did you hold?
11   A      I did some office, clerical, warehouse work, and
12          then graduated over to a sales position that had
13          opened up.
14   Q      Okay.  You already referred to it as a family
15          business.  Who was your immediate supervisor when
16          you started?
17   A      My father.
18   Q      Thank you.  And how long had your father been in
19          this business?
20   A      He had acquired the business, along with my
21          maternal grandfather, in the early 60's.
22   Q      Let's focus on '1974, '75.  Can you tell the
23          Court what the business of Behnke Lubricants was
24          at that time?
25   A      At what time?
0552
 1   Q      When you graduated from being a truck driver
 2          to --
 3   A      Okay.  Pretty much similar to what it is today,
 4          we marketed lubricants.  A little bit different
 5          in the fact that we did not manufacture as many
 6          lubricants as we do today, but now we're pretty
 7          much manufacturing most of what we sell in terms
 8          of fluid lubricants.
 9   Q      When you use the terminology lubricants, what do
10          you mean?  In other words, you know, are we
11          talking motor oil that I buy at the Mobil
12          station?
13   A      Well, in broad terms, yes, anything that's used
14          to facilitate and reduce friction in moving parts
15          on machinery.
16   Q      And you say on machinery.  Is there a specific
17          market for Behnke's products?
18   A      We address several different markets.  Initially
19          we -- most of our market was heavy construction,
20          off-highway vehicles, trucking, some fleet
21          operations.  And fairly early on we were involved
22          with food processing facilities, too, as
23          Wisconsin and Minnesota and Illinois are pretty
24          big food processing states.
25   Q      Let me just -- in a more broad sense, since
0553
 1          you've been with the company, have you, the
 2          company, whether it's manufacturing or
 3          distribute, marketed to the consumer market such
 4          as motor oils that I might buy at the local
 5          filling station?
 6   A      No.  We did distribute at one time for some
 7          branded product, namely like Valvoline or
 8          something like that, in the 60's and early 70's.
 9          But our line, the JAX line, is aimed almost --
10          well, exclusively at commercial markets.
11   Q      Let's talk about that a minute.  JAX is a trade
12          name?
13   A      Trademark.
14   Q      And so the lubricants that you sell under the JAX
15          trademarks, those are lubricants that are Behnke
16          products; is that correct?
17   A      Correct.
18   Q      Now, you said during your testimony that early on
19          you were more of a distributor and less of a
20          manufacturer.  I want to ask you now as we sit
21          here today, does Behnke still distribute
22          lubricants manufactured by others?
23   A      Yes.  We're not an integrated grease
24          manufacturer.  We do a couple of items that are
25          smaller, technical, and specialty, but for the
0554
 1          most part we contract for the grease
 2          manufacturing.  We do manufacture all of our
 3          fluid products.
 4   Q      All of your --
 5   A      Fluid products.
 6   Q      And I'm assuming that the Court's not familiar
 7          with the lubricant industry.  What is the
 8          difference between fluid products and greases?
 9   A      Okay.  Well, in essence a fluid lubricant would
10          be anything you can pour.  Although, greases in
11          their lightest form can be poured also, generally
12          they're thickened with a thickener that enables
13          them to stay put in place in bearings and open
14          lubricant applications.
15   Q      As we sit here today, approximately how large is
16          Behnke in terms of the number of employees it
17          has?
18   A      Approximately fifty.
19   Q      And where is Behnke located?
20   A      We have our corporate headquarters in Menomonee
21          Falls, Wisconsin.  And we have a satellite branch
22          in Sacramento, California, which is a warehouse
23          operation and a sales office.
24   Q      Where does the manufacturing of the fluid
25          lubricants take place?
0555
 1   A      Menomonee Falls.
 2   Q      And I'm going to ask you a couple of different
 3          market questions.  First, by product line, you
 4          made a distinction between food processing and
 5          other applications.  What are the other
 6          applications?
 7   A      Other markets we serve?
 8   Q      Yes.
 9   A      I think I touched on it briefly, but anything
10          from industrial plants, to off-highway vehicles,
11          to fleets, to plants that produce fiberglass for
12          insulation or board products, for particleboard,
13          OSB.  You know, pretty much anything that moves
14          needs lubrication, so we're pretty free-ranging.
15          The only things we do not get involved with
16          typically are metal working fluids and cutting
17          oils.
18   Q      Then you referenced the food processing
19          marketplace.
20   A      Yes.
21   Q      What -- can you describe, tell the Court what
22          that market entails?
23   A      That market entails providing lubricants for
24          processors of anything from fruit, vegetables,
25          nuts, meat, poultry, seafood products, and
0556
 1          snacks, beverages.  It's wide ranging.
 2   Q      Okay.  Now, you are the company's representative
 3          for purposes of these hearings.  And in order to
 4          move things along, you are familiar with the
 5          products that are at issue in this case?
 6   A      Yes.
 7   Q      Excuse me?
 8   A      Yes.
 9   Q      Namely, the JAX POLY-Guard FG-2, JAX POLY-Guard
10          FG-LT, JAX HALO-Guard FG-2, JAX HALO-Guard FG-LT,
11          JAX Magna-Plate 74, and JAX MAGNA-Plate 78, those
12          are all products with which you're familiar?
13   A      Yes.
14   Q      Which of the markets that you just described, the
15          food industry and the nonfood industry, are these
16          products marketed to?
17   A      All of those are marketed to the general food
18          industry.  I mean, to the food industry
19          specifically, but in the wide-ranging sense that
20          I mentioned it.
21   Q      Which would include beverage?
22   A      Yeah, absolutely.
23   Q      And do you, does Behnke market this outside the
24          food industry, any of the products that I just
25          named?
0557
 1   A      We don't.  There really wouldn't be that much
 2          appeal for them outside of the food industry
 3          because they have a perceived value of not
 4          performing quite as well, and generally they cost
 5          about double the conventional lubricants.
 6   Q      And now I want to ask you to define your market
 7          geographically.  Where within the world does
 8          Behnke sell these products?
 9   A      Well, the easiest way to break it down, is we
10          have direct markets that we service around our --
11          both of our facilities in Sacramento and in the
12          Milwaukee area, ranging out for maybe a hundred
13          miles.
14                      Outside of that, our sales are
15          through distribution.  We have distributors
16          throughout this country.  We have distribution in
17          Mexico and Canada, we have several in South
18          America.  We have distributors in Europe, and
19          distributors in southeast Asia, we have a
20          distributor in China.  So it's fairly far flung.
21          I would say the export portion is not a major
22          portion, but it's fairly wide-ranging.
23   Q      I want to make sure my question was clear.  I'm
24          restricting that to the six products that I just
25          read into the record that are at issue in this
0558
 1          case.
 2   A      Uh-huh.
 3   Q      You understood that?
 4   A      I thought you were talking about the company in
 5          general.
 6   Q      Okay.  Let me ask you then, focusing on the JAX
 7          POLY-Guard, all versions, the JAX HALO-Guard, the
 8          two versions, and the JAX Magna-Plate,
 9          geographically where are those sold or
10          distributed?
11   A      Potentially they would be any of the places I
12          mentioned, depending on the market that those
13          distributors are addressing.
14   Q      Now, I didn't ask this.  Your current position
15          with Behnke is what?
16   A      President.
17   Q      And is there anyone, officer that you report to?
18   A      No.
19   Q      In fact, do you have any ownership in Behnke
20          Lubricants?
21   A      I'm the majority owner.
22   Q      I'm sorry?
23   A      I am the majority owner.
24   Q      Now, your testimony was that potentially these
25          products could be marketed in any of those
0559
 1          geographic markets that you described.  Actual
 2          sales and distribution, what percentage of that
 3          takes place within the United States?
 4   A      I don't have an exact number, but I would say our
 5          export sales are less than 15 percent of our
 6          sales.
 7   Q      Of these products?
 8   A      Of those products?  Well, these products are a
 9          small percentage of our overall sales.
10   Q      That's why I'm asking.  Maybe it would be easier
11          if we do it this way.  A different market
12          question, defining your market.  Of your gross
13          annual revenues, approximately what percentage is
14          made up from the food processing market as
15          opposed to the nonfood processing?
16   A      Okay.  It's been a growing industry for us for
17          many years, so it's a good industry.  It's likely
18          over 50 percent of what we do now.
19   Q      And you indicated that it has been growing.
20          Again, in the interest of time, I would like you
21          to be brief, but can you give us some history as
22          to how and when Behnke entered this food
23          processing market?
24   A      I can give you a lot of history.
25   Q      Well, try and hit the highlights.
0560
 1   A      Well, I think my affidavit explained it fairly
 2          well but -- or my, you know -- the initial foray
 3          into the food processing lubricant market came
 4          because the FDA, USDA and the FSIS decided in the
 5          early 60's that something had to be done to
 6          address the fact that the lubricants being used
 7          in these processing plants were not any different
 8          than the lubricants that could be used anywhere
 9          else in society.
10   Q      Okay.  Let me interrupt you for a moment.  We
11          have a lot of acronyms.  FDA and USDA might
12          be not -- everybody may know what those are.  You
13          used another one, FSIS?
14   A      Food Safety Inspection Service.
15   Q      And do you know if that's associated with one of
16          the --
17   A      It's associated with the USDA.
18   Q      I'm sorry I interrupted.  So prior to this early
19          60's, food processors were using the same
20          lubricants you were selling?
21   A      Pretty much so.  And lubricants at that time were
22          even less stringently regulated because many
23          additives that they were using subsequently
24          became unusable, not only outside of the food
25          plant but outside, period.  I mean, in the early
0561
 1          60's -- I was born in the Eisenhower
 2          administration -- so, I mean, I was around at
 3          that point in time, but I don't recall when the
 4          EPA came into function, but many additives used
 5          at that time contained -- lead was a great
 6          additive, things like that, that absolutely now
 7          wouldn't be used in a food plant.  And many of
 8          the additives that were used then wouldn't even
 9          be used outside of a food plant.
10   Q      All right.  So what changed?
11   A      They made the determination that people were as a
12          result of these processing plants eating these
13          lubricants.  There is pretty much no getting
14          around the fact that they are getting into the
15          food as the processing happens.  So they said
16          this can't happen anymore the way it's happening.
17          We have to regulate the formulations of these
18          lubricants so that when this inevitable
19          consumption occurs, they will not be harmful in
20          any way.
21                      So early on the FDA set up some
22          guidelines for the products that could be used as
23          raw material ingredients in food processing
24          lubricants.  They did the toxicology studies and
25          all that and made up a definitive list of what we
0562
 1          could use to formulate lubricants that were used
 2          in food contact environments within the plant.
 3   Q      And today if I were to ask you where I might find
 4          that list, what would be your answer?
 5   A      It's in the 21 CFR.
 6   Q      Do you have a specific section number?
 7   A      Well, the specific section number that points at
 8          lubricants is 178.3570.  But there are other
 9          areas where we can use GRAS substances as well.
10   Q      Another acronym.  I know it's in the record, but
11          just to make it clear.  What is GRAS?
12   A      Generally Recognized As Safe.
13   Q      Okay.  In the process of this change -- and
14          you've been with the company now since 1974 on a
15          full-time basis -- have you seen an evolution in
16          this product market?
17   A      In the market or the products themselves?
18   Q      Well, tell me about the market first, tell the
19          Court, please.
20   A      Well, the market has changed pretty much hand in
21          hand with the products, because the products
22          improve -- the market was very limited early on
23          because the limitations on what we could use
24          didn't make for the world's best lubricants.  So
25          the plants that would use them, would only use
0563
 1          them where they really felt they had to or where
 2          the USDA inspectors mandated them, and everywhere
 3          else they would use conventional lubricants
 4          because of their performance value.
 5                      The use in other plants outside of
 6          the auspices of USDA inspections did not really
 7          get started until later in the 60's, early 70's,
 8          because those plants were not inspected by any
 9          other authority, possibly maybe some state
10          inspectors for some vegetable plants or things
11          like that, but it wasn't on the radar screen for
12          those people.
13   Q      All right.  And today, what do you find the
14          market to be?
15   A      It continues to be a growing market.  There are
16          still pockets of resistance from processors to
17          use some of these products.  But the FDA book has
18          grown, more toxicology studies have been done,
19          more component manufacturers have submitted
20          components to FDA for evaluation, they've been
21          added to the list.  The performance of the
22          lubricants has steadily improved, the markets
23          have grown.  Contamination cases have forced some
24          of these processors to say, hey, we better look
25          at this and make sure that if we get in any
0564
 1          contamination litigation we've got food-grade
 2          lubricants in our processing equipment.
 3                      So it's continued to grow based on
 4          the fact that the performance of the lubricants
 5          has improved and the acceptance and knowledge of
 6          the need to use these lubricants has improved.
 7   Q      Within the marketplace is there a generally
 8          accepted understanding -- you used the term
 9          food-grade.  Is there a generally accepted
10          understanding of what food-grade refers to?
11   A      By most people.  But a lot of the processors need
12          an explanation of it.  The term food-grade is
13          used to the lubricants initially that the USDA
14          defined as lubricants suitable for incidental
15          food contact.  Shortly thereafter, in the early
16          60's, they changed that designation to AA.  And
17          they had two classifications of lubricants at
18          that time.  They had the AA list, which are the
19          lubricants I just described.  And they had the BB
20          list, which are the lubricants that are basically
21          industrial in nature that would -- could be used
22          in the plant, but not in an area of food contact.
23                      And then they basically had a
24          knockout list of any ingredients, if they were
25          used in lubricants, those lubricants couldn't
0565
 1          come in the plant, period.  The -- where was I
 2          going with that?  The food-grade lubricants were
 3          regulated by the list.  Everything had to be on
 4          that list, the AA lubricants.  The BB lubricants
 5          were regulated more or less by exclusion.  They
 6          couldn't have these products in them.  So we were
 7          guided completely by the FDA guidelines in terms
 8          of formulation for AA lubricants.  BB lubricants
 9          were guided by what we could not put in them.
10                      Eventually -- I can just finish --
11          that the AA designation was in the early 70's
12          changed to H1, and the BB designation was changed
13          to H2.
14   Q      All right.  And who's designation were those?
15          Who's terminology was that?
16   A      USDA.
17   Q      Let's focus on after the designation changes to
18          H1 and H2.  Was there some procedure or process
19          that Behnke followed to get approval of its
20          products as compliant with H1 requirements?
21   A      Yes.  Each product had to be submitted to the
22          USDA for approval process, which involved filling
23          out some paperwork that included formulation
24          information, some paperwork that included some
25          identification information of the company,
0566
 1          including a product label or facsimile of a
 2          label, and including a four-ounce sample.  And
 3          that was prepared -- I prepared 50 to 100 of them
 4          myself, and then sent the package off to USDA to
 5          wait for their findings.
 6   Q      And --
 7                      MS. O'MEARA:  Your Honor, I'm sorry.
 8          I just need clarification when this was.
 9   BY MR. MCILNAY:
10   Q      Yeah.  I was just going to ask you that.
11   A      When this was?  This process happened from the
12          very start, from the very inception of the USDA
13          program, all the way up until they discontinued
14          the process in 1999.  That was the process we
15          went through.
16   Q      All right.  And this submission process would
17          take place each time you had a new product
18          that --
19   A      Each time we had a new product or decided on a
20          formulation change to an existing product.
21   Q      All right.  And what, if anything, would happen
22          after you submitted it to the USDA vis-a-vis some
23          kind of registration or certification?
24   A      If there were no issues with the labeling, I
25          mean, the commas were in the right places, the
0567
 1          periods were in the right places, you would kind
 2          of sit and wait, and wait for your approval
 3          letter.  And when the approval letter came back,
 4          you had that as a document to take to the field
 5          to use for the inspectors to verify that this was
 6          an approved product at that level.  And then also
 7          it would be published in what they called the
 8          White Book eventually to indicate that it was an
 9          approved product.  But the doctors and so forth,
10          the food inspectors in the field did not
11          necessarily have that White Book updated all the
12          time, so you had to have the letters, too.
13   Q      When you say you had to have --
14   A      One had to have, we had to provide the letters to
15          the end user and their food safety people.
16   Q      And would -- you testified earlier that you
17          transferred into sales after your initial time in
18          the clerical field.  For how long were you in
19          sales?
20   A      I'm still in sales.  But direct field sales, ten
21          years.
22   Q      And what time period?
23   A      '75 to '85, '86.
24   Q      And in that time period and in that capacity, did
25          you call on food processing plants?
0568
 1   A      Yes.
 2   Q      For the purpose of selling these products?
 3   A      Yes.
 4   Q      And during that period of time, did you sometimes
 5          have occasion to interact directly with the USDA
 6          inspectors in terms of showing the certification?
 7   A      Occasionally.  But usually that was the purview
 8          of the plant people.
 9   Q      Was it your experience that the plant people
10          required you to show certification?
11   A      The USDA-inspected plants definitely had to have
12          it.  These products could not enter the door
13          unless you had a certification letter or it was
14          listed in the White Book.  It was a little less
15          stringent in plants that weren't under USDA
16          authority.
17   Q      Did that change over time?
18   A      It's become more stringent.  The HACCP program
19          has made it pretty much of a mandate.  They want
20          to make sure all those things are approved and
21          have a handle on everything coming in the plant.
22          But it's become more accepted and grown.  I mean,
23          they want documentation.
24   Q      Let me back up.  We will come back to it later,
25          but just to make the record clear.  You used
0569
 1          another acronym, HACCP.  What does that stand
 2          for?
 3   A      HACCP, Hazard Analysis and Critical Control
 4          Point, I believe it is.
 5   Q      All right.  And we'll come back to that in more
 6          detail.  What I want to focus on right now is
 7          your current marketing process, channels of
 8          distribution and marketing for the food-grade
 9          lubricant group.  How does Behnke approach the
10          marketplace?
11   A      Through direct sales contact, literature.
12   Q      Well, here's what I -- you mentioned that you
13          have distributors.
14   A      Correct.
15   Q      Okay.  Do you have paid salesmen, marketing
16          people that work directly for Behnke?
17   A      Yes.
18   Q      Okay.  Can you distinguish between the
19          distributors and the direct salespeople for the
20          Court?  How did they function?
21   A      Well, we have a group of direct salespeople that
22          will make direct sales calls on to end users.  We
23          also have a group of salespeople that will assist
24          our distributors in making direct sales calls
25          with end users.
0570
 1   Q      And who are you talking about when you talk about
 2          end users?
 3   A      Consumers of the lubricants.  And if you're
 4          specific to those six, they would be food
 5          processing concerns.
 6   Q      And -- well, let's go beyond the six.  Do you
 7          have other food-grade lubricants besides the six?
 8   A      Yes.
 9   Q      Okay.  Food-grade lubricants, who are the end
10          users?
11   A      Food processors, beverage processors.
12   Q      All right.  Does Behnke market those food-grade
13          products to anyone else?
14   A      We don't market them to anyone else.  The
15          marketing is pretty vertical-market-oriented to
16          the food processing industry.
17   Q      Okay.  I just want to make sure that's clear.
18          What do you mean by, it's pretty vertical?
19   A      Well, I mean it's targeted at the food processing
20          industry.  Again, I mentioned there isn't that
21          much reason for other people to want to use them
22          because they're lacking some of the goodies, so
23          to speak, that we can put in non food-grade
24          lubricants, and they cost more.
25   Q      All right.  I think I've asked this, but in
0571
 1          the generic distinction between consumer market
 2          and commercial or business-to-business market, is
 3          there any consumer-oriented market for these
 4          lubricants?
 5   A      There is no consumer market for them.  No
 6          consumer would go to any store and find any
 7          food-grade H1 products.  No one would want to
 8          lubricant their car or their garage door opener
 9          or their lawn mower.  There's no reason to use
10          these other than in food processing plants.
11   Q      So it's not sold in retail stores?
12   A      No.  You couldn't -- you couldn't -- not only
13          couldn't you find ours in retail stores.  I think
14          you would be hard pressed to find any H1 type
15          lubricants anywhere in a retail outlet.  People
16          wouldn't really even know what it is, to be
17          honest with you.
18   Q      All right.  I want to ask you a little bit about
19          your experience and background and whatnot with
20          these food-grade lubricants.  How did you gain
21          your knowledge of food-grade lubricants?
22          Obviously, your work experience, but were there
23          other avenues where you learned about --
24   A      Well, work experience, we had a knowledge base.
25          I have some chemistry background.  We have
0572
 1          suppliers that provide knowledge in terms of
 2          performance of products that can be used and
 3          that.  A lot of it early on was -- as far as
 4          performance was concerned, was hit and miss
 5          because of the limited list that we could choose
 6          from to make these products.  We put them
 7          together and put them in the field, and then
 8          hoped we could stick our head in the door the
 9          next time we came back and that the machines
10          weren't laying on the floor.  So, you know, there
11          was a lot of trial and error in putting these
12          things together with the list of ingredients that
13          we had.
14   Q      And that's good.  I should have asked a different
15          question, because that's not quite what I was
16          driving at.  Your knowledge or understanding of
17          what was required for food-grade lubricants, and
18          specifically the H1 lubricants, what I'm getting
19          at is, were there industry associations that had
20          educational programs or that sort of thing?
21   A      Lubricants in general there were.  But this is
22          such a vertical market that there really weren't.
23          I mean, we were limited to 21 CFR and putting our
24          concoctions together and seeing how they worked.
25   Q      And in terms of that process, the putting your
0573
 1          concoctions together, as you so eloquently put
 2          it, where would that take place?  Did you do your
 3          R&D in-house or did you use --
 4   A      Early on we would do some R&D in-house, but we
 5          would work with the people that were doing the
 6          compounding with us.
 7   Q      Can you stop and explain that a little bit?  I've
 8          been your attorney for a long time, and what you
 9          take for granted, isn't always obvious to the
10          rest of us.  What do you mean by compounding?
11   A      It's an industry term for manufacturing
12          lubricants.
13   Q      All right.
14   A      It's the putting together of the ingredients in a
15          vessel to make a finished product.
16   Q      All right.  Let's describe that just a moment.
17          As a layperson, I visualize oil coming out of the
18          ground, getting refined, and, you know, we get
19          different grades of lubricants.  What goes into a
20          typical food-grade lubricant, generically?  I'm
21          not asking you to specify what --
22   A      You know, the process isn't that much different
23          than any lubricant that you're going to
24          manufacture.  It's typically a base oil, and then
25          performance additives that may impart, you know,
0574
 1          anti-rust properties, anti-wear properties,
 2          oxidation inhibition, tacifiers, improvers like
 3          that.
 4                      The difference being, that when
 5          you're making a food-grade lubricant, you're
 6          coming in with FDA-approved ingredients to put
 7          those products together, whether it's a white oil
 8          or the additives from the 21 CFR list.
 9   Q      White oil would be the base?
10   A      White oil is one of the bases.  But on more
11          sophisticated applications there are other -- the
12          synthetic-based oils that are also approved.
13   Q      All right.  And additives are the performance
14          enhancers?
15   A      Correct.
16   Q      All right.  And the compounding is the process of
17          mixing those together?
18   A      Correct.
19   Q      All right.  Now, you personally at some time in
20          your career had responsibility for the food-grade
21          food registration process that you discussed, the
22          provision of a sample and ingredient list and so
23          on.  Do you continue to do that today?
24   A      No.  And the process has changed a little bit.
25   Q      Good.  You anticipated my next line of
0575
 1          questioning.  How has the process changed?
 2   A      In 1999 the process through the USDA ceased, and
 3          the regulations were changed so that the burden
 4          of proof of food-gradability shifted more or less
 5          to the food plants themselves.  So we had to
 6          supply certification of some sort to these food
 7          plants indicating that the products were composed
 8          of items off the FDA component list.  That did
 9          not mean though, however, that anything on the
10          old list became obsolete.
11   Q      Okay.  Now, you said you had to provide
12          certification.  Was that a market demand?
13   A      I guess you could call it a market demand, but it
14          was a necessity for the plant to have it.
15   Q      I understand.  In other words, your customers
16          wouldn't buy from you if you couldn't show that?
17   A      Correct, if you couldn't assure them.
18   Q      And the ability to show that after the USDA
19          ceased its testing, what methods did you use to
20          confirm for your customers that this was
21          food-grade lubricant?
22   A      We had an in-house letter that we had confirming
23          that, with the wording that stated that this was
24          in compliance with the former regulations, and
25          cited the FDA chapters that the ingredients
0576
 1          complied with.
 2   Q      You said former regulations.
 3   A      Well, the former testing that was done by the
 4          USDA.
 5   Q      All right.  Was there any other way to certify to
 6          the customer that your lubricant was food-grade?
 7   A      Not for the first couple years.  There was no
 8          other independent agency that wanted to do that.
 9          We had talked a little bit among the industry
10          about what we would do to have a general,
11          standardized certification process.  But there
12          was nothing at the time, until some independent
13          testing agencies offered to provide the service.
14   Q      All right.  And did that eventually happen?
15   A      Yes.
16   Q      Was there one or more agencies that became the
17          standard in the industry?
18   A      Yes.  Two agencies, nongovernment agencies,
19          decided to pursue it.  One was Underwriters
20          Laboratory and the other one was NSF.
21   Q      And what does NSF stand for?
22   A      I don't think it stands for anything anymore, but
23          at one time I think it stood for National Safety
24          Foundation.
25   Q      All right.  And whether it was NSF or
0577
 1          Underwriters Laboratory, what would these
 2          organizations do?
 3   A      Well, they would provide a third-party
 4          confirmation of what you were already confirming
 5          in your letter, and be a nongovernment
 6          replacement or private replacement for the
 7          process that the USDA went through.
 8          Unfortunately, the USDA did it for free, and
 9          these people charged a fee.  So --
10   Q      Was there a requirement that you go through one
11          of the --
12   A      No, there was no requirement, but the industry
13          gravitated to the NSF program because it was more
14          in line with what the USDA had done previously.
15          And, as a matter of fact, we worked with the NSF
16          when they started setting up this program.  There
17          were a lot of phone calls between their document
18          manager and their people as to how these things
19          were handled and what were the protocols that
20          were used to make these things work.
21   Q      And when you say we -- which you've done often
22          today -- you're talking about Behnke?
23   A      Behnke Lubricants.
24   Q      Now, you described how the USDA stopped its
25          testing, and you had previously used the acronym
0578
 1          HACCP.  Are the two related in some fashion?
 2   A      I think Troy Paquette could be a little more
 3          familiar with that.  But HACCP programs basically
 4          started initiating when the USDA pulled back on a
 5          lot of its testing.  In the 90's it wasn't just
 6          this program that was downsized.  It was the
 7          amount of inspectors in plants.  There were a lot
 8          of changes made in the late 90's to the USDA,
 9          FSIS programs.
10   Q      Now, I want you to focus on the current time
11          frame, all right.  You mentioned that customers
12          who aren't in need of food-grade lubricants
13          aren't likely to buy them because they're more
14          expensive; is that correct, than non food-grade?
15   A      You're going to have to rephrase that.
16                      MR. MCILNAY:  Could you read it back?
17                      (The question was read.)
18                      THE WITNESS:  That's correct.
19   BY MR. MCILNAY:
20   Q      And that holds true today; is that --
21   A      Correct.
22   Q      As it did in the early days?
23   A      Correct.
24   Q      All right.  And you have, as the company's
25          representative, been here for the testimony
0579
 1          that's gone into the case so far, including the
 2          testimony of Mr. Rybicki?
 3   A      Yes.
 4   Q      All right.  You're familiar, are you, as the
 5          president of Behnke Lubricants, with competitors'
 6          pricing?
 7   A      Somewhat.
 8   Q      All right.  You're being modest.
 9                      MS. O'MEARA:  Objection, Your Honor.
10          I would ask that Counsel not testify on behalf of
11          Mr. Peter.  He answered the question.
12   BY MR. MCILNAY:
13   Q      Mr. Peter, let me be more specific.  You heard
14          the testimony that Mr. Rybicki indicated that
15          your product was 20 to 30 percent more expensive
16          than what they had previously been using?
17   A      Uh-huh, yes.
18   Q      All right.  Within the marketplace, I mean, how
19          many competitors do you have?  Is this a big
20          market with lots of competition or are there few
21          participants?
22   A      The lubricating market in general or the food
23          processing?
24   Q      Food processing.
25   A      It's a huge amount of competitors in general, and
0580
 1          it's a fairly large amount of competitors in the
 2          food processing arena for lubricants, many of
 3          which have come on the scene in the last 10 to
 4          15 years.
 5   Q      All right.  With regard to those competitors
 6          within the food-grade lubricant market, are you
 7          familiar with the range of pricing?
 8   A      Yes.
 9   Q      All right.  And from the low price to the high
10          price, what kind of percentage difference is
11          there?
12                      MS. O'MEARA:  Your Honor, I'm going
13          to object at this time.  He's already testified
14          he's somewhat familiar with it.  There's nothing
15          in the record to support this, so it lacks
16          foundation.
17   BY MR. MCILNAY:
18   Q      Let me back up.  Let me just ask.  Do you know?
19   A      Do I know?
20                      JUDGE GUNNING:  Hold on.  Do you have
21          a response to --
22                      MR. MCILNAY:  I'll withdraw that
23          question.
24                      JUDGE GUNNING:  Okay.
25   
0581
 1   BY MR. MCILNAY:
 2   Q      I will rephrase it to this.  Do you know what the
 3          price ranges are from high to low?
 4   A      Well --
 5                      MS. O'MEARA:  Your Honor, I'm going
 6          to -- I'm sorry.  I'm going to continue to make
 7          that objection.  Again, the testimony was he is
 8          somewhat familiar.  There is nothing in the
 9          record, in any of the prehearing exchange
10          documents that shows what the range is.
11          Therefore, there is no foundation.
12                      MR. MCILNAY:  I'm asking if he knows.
13                      JUDGE GUNNING:  Right.  I'll allow
14          the question.  The relevancy at some point is
15          somewhat tangential, and so you may want to limit
16          the questions down this road.
17                      MR. MCILNAY:  I will.
18                      JUDGE GUNNING:  Okay.
19                      THE WITNESS:  I'm familiar with the
20          range.  They could range --
21   BY MR. MCILNAY:
22   Q      You're familiar with it.
23   A      Yes.
24   Q      How?  Why are you familiar?
25   A      Well, it's a competitive marketplace.  We have to
0582
 1          know where we're priced to obtain business.
 2   Q      All right.  And in general, what's the range?
 3   A      The range on food-grade products could be
 4          anywhere from 10 or 15 percent below our prices
 5          to 100 percent above our prices.
 6   Q      All right.  Okay.  We're here about Micronox.
 7          Let's begin with, has Micronox always been a part
 8          of Behnke's food-grade lubricants?
 9   A      No.
10   Q      All right.  When did the concept of Micronox
11          arise at Behnke?
12   A      Can I back the calendar up a little bit?
13   Q      Sure.
14   A      Okay.  As the FDA approved more raw material
15          ingredients that we could use in making
16          products --
17   Q      These are the additives?
18   A      The additives, components is probably a better
19          term.  We would test them and try to find out
20          better solutions.  If a better rust inhibitor
21          came on the market -- maybe in the early 70's, we
22          had complaints that the rust inhibition wasn't
23          good on these products -- we would incorporate
24          that into the products, get a new approval, and
25          move on.
0583
 1                      And so the process of developing
 2          these lubricants is very evolutionary, because
 3          there is not an additive company, per se, that
 4          formulates additives for the market.  In other
 5          industries that we service, you can call a
 6          Lubrisol, which is an additive supplier, or an
 7          Oranite or -- they've changed their names so
 8          much -- but there are dozens of additive
 9          companies that you can go to and get components
10          to make almost ready-made packages.  You can drop
11          in this component and make a transmission fluid.
12          You can't do that with food-grade additives
13          because you have to pick and choose from what's
14          listed in the FDA guidelines.  But as things
15          became more available, improvements could be
16          made, and we would address problems that we saw
17          in the field with these improvements that we
18          made.
19   Q      I mean, was that evolution in part to respond to
20          customer concerns?
21   A      I would say 95 percent of them are.
22   Q      Now --
23   A      Or our concerns about making a better product.
24   Q      Right.  Now, Micronox, which is where we started
25          that, how did that -- and let's back up.
0584
 1          Micronox is a registered trademark?
 2   A      Correct.
 3   Q      All right.  When we talk about Micronox, could
 4          you explain to the Court what that means in your
 5          mind?
 6   A      Well, it basically means the antimicrobial
 7          attribute that we have in our lubricants.
 8   Q      Is there a -- I'm searching for the right word --
 9          single formula for something called Micronox?
10   A      No.
11   Q      I'm sorry.  Please speak up.
12   A      No.  No, there is not.
13                      JUDGE GUNNING:  I have a question at
14          this point on a practical matter.  Are we getting
15          into any confidential business information?
16                      MR. MCILNAY:  Not as yet.
17                      JUDGE GUNNING:  Okay.
18                      MR. MCILNAY:  I will be sensitive to
19          that when and if we get there.
20                      JUDGE GUNNING:  If you have an
21          additional witness in the room, and I don't
22          know --
23                      MR. MCILNAY:  He is one of our
24          experts, and when and if we get there, I will ask
25          the Court to admonish --
0585
 1                      JUDGE GUNNING:  I just wanted to make
 2          sure we're cognizant of that.
 3                      MR. MCILNAY:  Exactly.  And I
 4          appreciate that, as I'm sure Mr. Peter does as
 5          well.
 6   BY MR. MCILNAY:
 7   Q      How did -- strike that.  Were you finished with
 8          your description of Micronox?
 9   A      Sure.
10   Q      How is it that Behnke pursued developing this
11          technology?
12   A      It was a customer asking for some improved
13          performance in terms of microbial containment.
14   Q      All right.  Now, just to be sure, the particular
15          customer and the details of this, do you consider
16          that a confidential business?
17   A      We didn't publish it in our literature, but I
18          don't consider it confidential.
19   Q      All right.  So you could discuss who the customer
20          was?
21   A      Yes.
22   Q      All right.  Could you tell the Court who the
23          customer was?
24   A      The initial customer that requested some improved
25          performance in this area was Kraft Food.
0586
 1   Q      And specifically do you recall the time frame?  I
 2          don't mean month and day but --
 3   A      Roughly around 2000, maybe 2001.
 4   Q      Okay.  And do you have personal knowledge of the
 5          request?  I mean, were you the party that they
 6          approached, or how did the issue --
 7   A      I was not personally the party they approached,
 8          but I was aware of the request and our initiative
 9          to see if we could help out.
10   Q      All right.  How did you learn about the request?
11   A      It was probably from one of our salespeople or
12          from my technical director.
13   Q      All right.  In the process, Mr. Peter, of an
14          initiative, what role did you play?
15   A      Pretty much strictly an oversight role.
16   Q      All right.  In the course of this, did you have
17          occasion to have direct contact or discussions
18          with anyone from Kraft?
19   A      I personally don't recall.  I may have had one or
20          two, but it was not my main focus.
21   Q      Okay.  Did you have an understanding from your
22          salesperson what -- was there a particular
23          application that you were trying to target?
24   A      This particular application -- and I think that
25          one of the salespeople on the witness list might
0587
 1          have been a little bit more involved, and also
 2          Troy Paquette was --
 3   Q      Understood.
 4   A      -- was a bearing.
 5                      MS. O'MEARA:  Your Honor, I'm sorry.
 6          I'm going to object.  It sounds like this is
 7          skirting on hearsay.  I mean, we have people on
 8          the witness list, Mr. Paquette, and I believe
 9          others, that will be talking about this.  Perhaps
10          that would be more appropriate.  But I'm hearing
11          hearsay at this moment.
12                      JUDGE GUNNING:  As you well know,
13          under the administrative rules we don't strictly
14          follow the rules of evidence.  That's not to say
15          we ignore them.  The preferable is obviously the
16          person with the most direct knowledge.  But given
17          this situation, I'll allow some questions.
18                      MR. MCILNAY:  I understand, and I
19          could make some arguments as to why this isn't
20          strictly hearsay, but --
21   BY MR. MCILNAY:
22   Q      For purposes of brevity and to get to lunch, can
23          you generally describe what your understanding
24          was?
25   A      My understanding was that it was a large bearing
0588
 1          in the processing of cream cheese.
 2   Q      All right.  You mentioned your technical
 3          director.  Who is that?
 4   A      Troy Paquette.
 5   Q      And that was -- that person was the same
 6          technical director back in 2001?
 7   A      Yes.
 8   Q      Did you as president of the company give any
 9          direction to Mr. Paquette relative to this
10          customer request?
11   A      No.  Mr. Paquette is pretty familiar with our
12          formulation guidelines.
13   Q      I understand that, but did you ask him to do
14          anything?
15   A      See if he could solve the problem.
16   Q      All right.  And you basically then set
17          Mr. Paquette loose to --
18   A      Let's investigate.
19   Q      -- to investigate it.  All right.  What happened
20          next in this process, as far as you know?  You
21          set Mr. Paquette to investigate.
22   A      Well, after his investigation and our
23          determination that we may have something that was
24          a solution; although, we don't do any efficacy
25          testing in-house, but we were familiar with the
0589
 1          ingredient list and what was usable through 21
 2          CFR, we put together a sample and said, would you
 3          like to take a look at it and try it to see if it
 4          helps with your problem.
 5   Q      And you say, would you like to take a look.
 6   A      You, Mr. Kraft.
 7   Q      So you supplied them with a sample?
 8   A      Yes.
 9   Q      All right.  Ultimately, based on your knowledge
10          of the business and business records, did Kraft
11          purchase a product from you --
12   A      Ultimately they purchased, yes.
13   Q      -- that addressed this concern?
14   A      Yes.
15   Q      At that point in time -- well, let me back up.
16          We've talked about a number of your products, six
17          of them most specifically.  I take it those
18          aren't all interchangeable for different
19          applications?
20   A      I wish they were.  It would help with inventory.
21   Q      All right.  But they're not?
22   A      No.
23   Q      All right.  For the Kraft project, was there a
24          specific or particular lubricant application that
25          has a name that you can put to it?
0590
 1   A      The lubricant itself?
 2   Q      Yes.
 3   A      For the Kraft application that we use the
 4          POLY-Guard FG-2.
 5   Q      And POLY-Guard FG-2, for the record, that is a
 6          fluid or a grease?
 7   A      That's a grease.
 8   Q      All right.  I believe this is in the record, but
 9          there is some outsourcing of manufacturing.  Do
10          you manufacture the grease?
11   A      We do not manufacture grease, no.
12   Q      All right.  So you subcontract that to somebody
13          else who uses your formula to produce that
14          product?
15   A      Correct.
16   Q      All right.
17   A      But -- if I can throw a but in there.
18   Q      Go ahead.
19   A      We have in our laboratory grease equipment and
20          can do batch size -- you know, trial batch-size
21          formulation work there.
22   Q      Okay.
23   A      Because most of the formulas that we have
24          manufactured on the greases are -- virtually all
25          of them are our formulations.
0591
 1   Q      Okay.  And, excuse me, after that I forgot --
 2          it's the HALO-Guard?
 3   A      POLY-Guard.
 4   Q      POLY-Guard FG-2.
 5   A      Correct.
 6   Q      What does the FG stand for in the name.
 7   A      Food-grade.
 8   Q      What does the 2 stand for?
 9   A      2 refers to the NLGI grade, which stands for
10          National Lubricating Grease Institute, and has to
11          do with the penetration of the grease, basically
12          the hardness.
13   Q      All right.  And so Kraft started to purchase this
14          product with the new formulation?
15   A      Correct.
16   Q      Had you started calling it Micronox at that
17          point?
18   A      No.
19   Q      Did you have any other marketplace for it?  I
20          mean, at that particular time, any other
21          customers?
22   A      Well, POLY-Guard FG-2 had other marketplaces.
23   Q      Right.  Right.
24   A      And so we decided to incorporate that technology
25          into POLY-Guard FG-2.
0592
 1   Q      All right.
 2                      MR. MCILNAY:  Your Honor, I know
 3          we've gone a little bit later the last couple of
 4          days, but it is noon, and this would be a great
 5          point to break, if we would come back at one.
 6                      JUDGE GUNNING:  Okay.  How long do
 7          you anticipate with this witness overall?
 8                      MR. MCILNAY:  Overall, maybe another
 9          hour possibly.
10                      JUDGE GUNNING:  Okay.  EPA, any
11          objection to breaking now for lunch?
12                      MS. O'MEARA:  Absolutely not.
13                      JUDGE GUNNING:  Okay.  Very good.
14                      MR. MCILNAY:  Thank you.
15                      JUDGE GUNNING:  And we'll return here
16          at 1:00 o'clock.
17                      MR. MCILNAY:  That would be great.
18                      (A recess was taken.)
19                      JUDGE GUNNING:  I'll just remind the
20          witness that you're still under oath.
21                      THE WITNESS:  Yes.
22                      JUDGE GUNNING:  Okay.
23                      MR. MCILNAY:  And may I ask the court
24          reporter to read back the last question and
25          answer.
0593
 1                      (The question and answer were read.)
 2   BY MR. MCILNAY:
 3   Q      Mr. Peter, in the interest of keeping this
 4          moving, could you turn to Complainant's
 5          Exhibit 35?  It should be in one of the white
 6          binders.
 7                      MR. MCILNAY:  May I approach?
 8                      JUDGE GUNNING:  Yes.  It's in Volume
 9          2.
10                      MS. O'MEARA:  I'm sorry.  What
11          exhibit, Counsel?
12                      MR. MCILNAY:  Complainant's
13          Exhibit 35.
14                      MS. O'MEARA:  Thank you.
15                      MR. MCILNAY:  If I'm not mistaken --
16          I'm sorry.  I don't show that is offered and
17          received but I could have just been --
18                      MS. O'MEARA:  It was stipulated to.
19                      MR. CHA:  I believe that's correct.
20                      MR. MCILNAY:  That's probably why.
21          Okay.
22                      JUDGE GUNNING:  Okay.  Respondent's
23          Exhibit 32 or Complainant's?
24                      MR. MCILNAY:  Complainant's.
25                      JUDGE GUNNING:  32?
0594
 1                      MR. CHA:  35.
 2                      JUDGE GUNNING:  35.  Okay.
 3   BY MR. MCILNAY:
 4   Q      Mr. Peter, let me direct you specifically to EPA
 5          0730.  That's the little Bates stamp number at
 6          the bottom of the page.  Are you at that page?
 7   A      Yes, I am.
 8   Q      Okay.  You generally recognize this as a
 9          trademark application filed on behalf of Behnke
10          for the Micronox name?
11   A      Yes.
12   Q      Okay.  And on the page that I reference, 730,
13          there is an indication that the first use of the
14          mark in commerce was October 19, 2001.
15   A      Yes.
16   Q      Is that consistent with your recollection as to
17          the time frame in which Behnke began to use the
18          term Micronox?
19   A      Yes.
20   Q      All right.  Could you -- I know it's difficult,
21          but you're speaking very quietly -- if it's
22          possible to pull the mike closer to you.
23                      I want to focus on the October 19,
24          2001, time frame.  At that point in time, was
25          this technology incorporated in all of Behnke's
0595
 1          food-grade lubricants?
 2   A      I don't think so.  I don't remember.  I think it
 3          was somewhat later than that that we got it in
 4          all of them.
 5   Q      All right.  And just so the record is clear, when
 6          I use food-grade, I am referring to H1 designated
 7          lubricants?
 8   A      That's fine.
 9   Q      Okay.  At any time since October 19, 2001, or at
10          any time from the beginning of time, has Behnke
11          used the technology that's referred to as
12          Micronox in any non H1 lubricants?
13   A      No.
14   Q      Now, Complainant's Exhibit 35, just above the
15          date there is a subheading for Goods and
16          Services.  Do you see that?
17   A      Yes.
18   Q      And there's a statement that those Goods or
19          Services are antimicrobial additives for
20          industrial lubricants and greases.  Do you see
21          that?
22   A      Yes.
23   Q      Okay.  Is that your language, sir?
24   A      Yes.
25   Q      Okay.  Now, I'd like to direct your attention to
0596
 1          EPA 0734.  What is that document, sir?
 2   A      Appears to be a label for a 400-pound drum.
 3   Q      Of what?
 4   A      JAX Proofer Chain Oil.
 5   Q      And what is Proofer Chain Oil?
 6   A      It's an oil --
 7   Q      Let me ask you this.  Is it a food-grade
 8          lubricant?
 9   A      Yes.
10   Q      And it indicates that on the label; is that
11          correct?
12   A      Yes.
13   Q      What is the next page, for the record, EPA 0735?
14   A      It is a product data sheet for POLY-Guard
15          greases.
16   Q      And generically, generally, what is a product
17          data sheet?
18   A      It's a description of the product and its
19          inherent characteristics for sales purposes.
20   Q      And you anticipated my next question.  How is it
21          used?  I understand it's for sales purposes, but
22          how is it used in your business?
23   A      Basically to introduce the product to a potential
24          customer.
25   Q      And do you do mass mailings of these or --
0597
 1   A      No, I don't believe we've done mass mailings of
 2          these at any time.
 3   Q      Page 0736, can you identify what that document
 4          is?
 5   A      Again, it's a drum sticker for a 400-pound drum
 6          container.
 7   Q      Is this the same as the prior?
 8   A      Appears to be the same label.
 9   Q      Okay.  And 0737, what document is that?
10   A      Another product data sheet.
11   Q      I'm going to skip -- what product?
12   A      POLY-Guard Greases.
13   Q      Okay.  You've been in the courtroom this entire
14          hearing, and you've seen a number of the product
15          data sheets blown up, and various witnesses asked
16          questions about concerns they might have about
17          statements made in those product data sheets.
18   A      Yes.
19   Q      And let's turn to EPA 0739.
20   A      Okay.
21   Q      Are you there?  This is a POLY-Guard grease?
22   A      Yes.
23   Q      I want to direct your attention to the statement
24          in the upper left-hand corner above Benefits,
25          where it begins, Now, for the first time a
0598
 1          food-grade lubricant.  Do you see that?
 2   A      Yes.
 3   Q      All right.  This was submitted to the Patent and
 4          Trademark Office in 1991.  Subsequent to that,
 5          have your product data sheets changed?
 6   A      Yes.
 7   Q      Do your current product data sheets include that
 8          language?
 9   A      They would not include that language, to the best
10          of my knowledge.
11   Q      For any of the products at issue in this case?
12   A      To the best of my knowledge, no.
13   Q      And can you tell the Court why that is?
14   A      Why they don't include that language?
15   Q      Yes.
16   A      Well, they don't include that language because of
17          the threat of the EPA action.
18                      MS. O'MEARA:  Objection, Your Honor,
19          as to the characterization of, threat.
20                      MR. MCILNAY:  Let me back up and
21          let's take it a step at a time.  All right.
22   BY MR. MCILNAY:
23   Q      At some point in time, subsequent to October
24          of 2001, did anyone approach you about a concern
25          they had with this language?
0599
 1                      MS. O'MEARA:  Your Honor, I'm sorry.
 2          Could the court reporter repeat that question?  I
 3          apologize.
 4                      (The question was read.)
 5                      MS. O'MEARA:  Thank you.
 6                      THE WITNESS:  I was approached with a
 7          concern about the language on our labeling by
 8          NSF.
 9   BY MR. MCILNAY:
10   Q      All right.  And NSF is the nongovernmental
11          organization --
12   A      Correct.
13   Q      -- doing the H1 certifications?
14   A      Doing their H1 certification.
15   Q      And do you recall approximately when Behnke was
16          first approached with a concern about labeling
17          relative to the H1 products?
18   A      I would say it was probably sometime in 2003.
19   Q      All right.  And initially I want you to tell the
20          Court what the concern was that was conveyed to
21          you.
22   A      The concern was conveyed to me that they thought
23          that this would be -- possibly run amuck of some
24          EPA pesticide concerns.
25   Q      All right.  And what, if anything, did you do in
0600
 1          response to that contact?
 2   A      I asked them if we could meet and discuss that,
 3          because we did not feel it did, based on the type
 4          of product it was.
 5   Q      And before we get to the meeting, at that time,
 6          approximately 2003, it was your understanding or
 7          your belief that it didn't run amuck of --
 8   A      It wasn't my belief.  But we used FDA guidelines,
 9          so the crossover to EPA was very limited when we
10          did our study of what we could say and what we
11          couldn't say.
12   Q      What study are you referring to when you say,
13          what we could say and what we couldn't say?
14   A      Well, back up a little bit.  When we decided we
15          had what was a pretty neat technology here to
16          help food processors, we discussed it, and said,
17          is there a way to incorporate it in more
18          products, and is there a way to promote it as a
19          benefit to the processing plants?  So we did our
20          own efficacy studies, and continue to do some --
21          not in-house, but we sent those out -- and to
22          reconfirm that we had something that was actually
23          doing something.  And then we did studies of the
24          FDA documentation to see what we thought we could
25          and couldn't say.
0601
 1   Q      When you say we --
 2   A      Troy Paquette.  We as a company, Troy Paquette
 3          primarily, and I, doing some research on what we
 4          may or may not say in terms of the ability of the
 5          Micronox to help these plants control some
 6          bacteria.
 7   Q      And I want to make it clear.  You personally
 8          participated in the review of that information?
 9   A      Yes.
10   Q      All right.  And is it fair to assume that within
11          Behnke you were the ultimate decision maker as to
12          what you were going to say and not say?
13   A      Yes.
14   Q      None of this could have occurred without your
15          prior approval?
16   A      I would take responsibility for it, but things
17          happen that I'm not always aware of.  But in this
18          case, I was aware of the language.
19   Q      Okay.  So that was the mind-set with which you
20          left, or you requested the meeting with NSF in
21          approximately 2003?
22   A      No.  And 2003 may not be an accurate date.  It
23          may have been 2004, because the meeting we had
24          was in 2005.  So there might not have been red
25          flags sent up on any of this stuff until 2004,
0602
 1          because I don't think the lag time between when
 2          we started having issues on the labeling was that
 3          long before I requested a meeting with NSF.
 4   Q      Okay.  Now, I want you to put yourself back in
 5          2004.  You used the term labeling.  How did you
 6          understand that term then?
 7   A      Well, customarily in the trade and with any
 8          documentation that we sent in to USDA, FSIS for
 9          approvals, when we sent a label, we sent
10          something very similar to what you showed in EPA
11          0738.  It's what is applied to the container.
12   Q      All right.  Was it in your mind that it would
13          include the product data sheets?
14   A      No.
15   Q      So you requested a meeting with the NSF to better
16          understand what the concern was?
17   A      Yes, because they had started to raise issues
18          with what we were claiming on our labels.
19   Q      All right.  And did such a meeting take place?
20   A      Yes.
21   Q      Approximately when?
22   A      Approximately May 23, 2005.
23   Q      All right.  And where did the meeting take place?
24   A      I personally was in Ann Arbor, Michigan, and Troy
25          Paquette was on the speaker phone back at our
0603
 1          office.
 2   Q      All right.  And was there somebody from NSF in
 3          attendance?
 4   A      There were, I believe, four people in attendance.
 5   Q      All right.  And do you remember who from NSF was
 6          the person that was in authority, I guess?
 7   A      The person who was most concerned with this
 8          situation was a Dr. Kenji Yano.
 9   Q      All right.  And to avoid objections as to
10          hearsay, when you left the meeting, did you have
11          a better -- or did you have an understanding of
12          what NSF's concerns were at that point?
13   A      I had an understanding, but we basically left the
14          meeting agreeing to disagree.
15   Q      All right.  Did you have further communication
16          with NSF concerning what you understood to be
17          labeling concerns?
18   A      I don't remember.  There may have been some
19          further communication.  NSF had further
20          communication with us as a company.  Whether I
21          had much more direct further communication, there
22          was some, limited, but nothing that sticks in my
23          mind like that particular meeting.
24   Q      All right.  At some point after your meeting in
25          Ann Arbor, did Behnke take any action relative to
0604
 1          its labeling because of the NSF issue?
 2   A      Yes, and I think we had taken some action even
 3          before that because of some of the issues they
 4          had raised.  So we were starting to pare back the
 5          claims that we made in the labeling.
 6   Q      Okay.  And, again, at that point in time, when
 7          you refer to labeling, your understanding --
 8   A      It's on the package.
 9   Q      All right.  So that didn't necessarily mean
10          that's when you pared back on collateral
11          literature?
12   A      No, no.  Because -- well, in the submissions that
13          we would make for these products, they would ask
14          for a label, and that's what would be sent to
15          them.  So they wouldn't necessarily even have
16          seen collateral stuff either.  And that's -- the
17          label is the label.
18   Q      Okay.  You have to be careful.  I understand you
19          don't do this every day.  When we go back at the
20          record, it's -- you are referring to they, but
21          who are you referring to?
22   A      I'm sorry.  NSF.
23   Q      So as part of the standard H1 certification
24          process, you would submit labels to NSF?
25   A      Correct.
0605
 1   Q      And that, at that point in time, is the only
 2          documentation they had?
 3   A      Correct.
 4   Q      After you made the changes that you've
 5          described -- paring back I think was the language
 6          you used -- on the claims in the labels, were
 7          there any additional issues raised by NSF?
 8   A      Well, I believe there were two or three issues
 9          raised by NSF sequentially that caused us to
10          change the labeling and make changes.  One of
11          them was changing our claims about killing what
12          we believed were microorganisms on food or in the
13          food to saying -- telling our people that all we
14          could say was that we're protecting our product.
15          In hindsight, that was not the best advice to be
16          given to us or for us to heed.
17   Q      If you recall, at any point in time did NSF raise
18          a concern with collateral literature other than
19          the product label?
20   A      Not that I'm aware of.
21   Q      The Ann Arbor trip, was that your last meeting
22          with Dr. Kenji Yano?
23   A      No.
24   Q      Did you have a subsequent meeting with Dr. Yano?
25   A      I met with Dr. Yano in the fall, in October
0606
 1          of 2005.
 2   Q      And where did you meet?
 3   A      I met at a trade convention that I attended in
 4          Orlando, Florida.
 5   Q      All right.  Was the purpose of the trip to meet
 6          with Dr. Yano?
 7   A      The purpose of the trip was to attend a trade
 8          meeting, a portion of that trade meeting that was
 9          being given by Dr. Yano and also Mr. Edwards
10          regarding food-grade lubricants and, you know,
11          antimicrobials.
12   Q      So you chose to attend this without the specific
13          intent of meeting Dr. Yano?
14   A      Without the specific intent.  More the specific
15          intent of, to hear what they were going to say.
16   Q      All right.  And was this in the nature of a
17          conference then?
18   A      In the nature of a conference and a presentation
19          at that conference.
20   Q      And who was the sponsor of the conference?
21   A      The group is called ILMA, it's Independent
22          Lubricant Manufacturers Association.
23   Q      During that trip, did you have occasion to meet
24          individually with Dr. Yano?
25   A      I met individually with Dr. Yano and also with
0607
 1          Dr. Yano and Mr. Edwards.
 2   Q      At the same time?
 3   A      At the same time -- at one point at the same time
 4          they were together, yes.
 5   Q      All right.  And was that part of the conference,
 6          or was that something that you gentlemen arranged
 7          once you were down there?
 8   A      It was subsequent to the presentation.
 9   Q      All right.  Is this a meeting you requested?
10                      MS. O'MEARA:  Your Honor, I'm going
11          to object.  Just to make the record clear, this
12          certainly was not disclosed in any of Mr. Peter's
13          prehearing exchange summaries or the declaration
14          that was submitted.  So this is the first time we
15          are hearing this, and it was never discussed with
16          us.
17                      MR. MCILNAY:  Your Honor, I guess
18          I -- if my interpretation of the prehearing
19          exchange is not consistent with the practice, and
20          I have done Rule 26 exchanges in federal court.
21          I believe we provided a summary of what we
22          anticipated he would testify to, including the
23          history of NSF issues and its use -- the use of
24          this product, the evolution of the use of this
25          product in the industry generally.  My
0608
 1          understanding is there are opportunities for
 2          further discovery that weren't pursued.  We would
 3          submit that it's very relevant to especially the
 4          issue of gravity.
 5                      MS. O'MEARA:  Your Honor, if I may
 6          just respond?
 7                      JUDGE GUNNING:  Yes.
 8                      MS. O'MEARA:  Thank you.  I want to
 9          draw a distinction between Rule 26 and what the
10          administrative practice here is and the fact that
11          discovery and deposition rules are very different
12          between the two.  I'm looking at the summary
13          right now.  It consists of nine lines.  And I'm
14          looking at the declaration right now, and it does
15          not consist of this conversation.  And I just
16          want the record to be clear that this is the
17          first time we're hearing it.
18                      And I also take exception to the fact
19          that I was given an opportunity to get additional
20          discovery.  We asked for discovery through a
21          voluntary process.  We renewed it, and we renewed
22          it, and then we filed a motion to compel.  And we
23          asked for any documentation, any communication
24          with the EPA, USDA, FDA and NSF, and did not get
25          this information.
0609
 1                      JUDGE GUNNING:  Okay.  The objection
 2          is noted.
 3                      MS. O'MEARA:  Thank you.
 4                      JUDGE GUNNING:  But it is overruled.
 5                      MR. MCILNAY:  Would you read the
 6          question back?
 7                      (The question was read.)
 8                      THE WITNESS:  It was a meeting that
 9          resulted from me being present at the end of the
10          presentation and the fact that I knew Dr. Yano
11          from a previous meeting.
12                      MS. O'MEARA:  I'm sorry.  I couldn't
13          hear you, Mr. Peter.
14                      THE WITNESS:  It was a meeting that
15          resulted from my being present after the
16          presentation and from my previous knowledge
17          and -- of knowing Dr. Yano.
18   BY MR. MCILNAY:
19   Q      Approximately how long did the three of you meet?
20   A      Less than an hour.
21   Q      What was the topic of your conversation?
22   A      Well, the topic of my conversation was their
23          continuing opinion that the antimicrobial
24          properties that would be imparted into food-grade
25          lubricants would have to be FIFRA registered.
0610
 1   Q      All right.  And subsequent to that meeting, did
 2          you take any action to address further concerns
 3          regarding your labeling?
 4   A      Well, we had already gone through two or three
 5          generations of labeling changes at that point in
 6          time.  My further concerns revolved around the
 7          fact that we had EPA making decisions on
 8          FDA-regulated products in what I thought was a
 9          fairly arbitrary manner with no FDA involvement.
10   Q      Did you just ignore those concerns that were
11          raised by --
12   A      No.  We continued to research FDA and try and see
13          if there was a reason for us to continue to have
14          concern on this.
15   Q      All right.  Now, ultimately -- let me ask you to
16          turn to Complainant's Exhibit 37, I believe.  And
17          more specifically --
18                      MR. MCILNAY:  Am I wrong?  Is there
19          more than one copy of this in the record?  Is
20          there another --
21                      MS. O'MEARA:  Yes, because it -- if I
22          may, Your Honor?
23                      JUDGE GUNNING:  Yes.
24                      MS. O'MEARA:  Because it was moved
25          from state to federal court, so we obtained both
0611
 1          copies, not knowing what we were getting.
 2                      MR. MCILNAY:  Okay.  Actually if you
 3          can help me, which one have we -- 36.
 4                      MS. O'MEARA:  I have referred to the
 5          complaint as 36, but it's the identical
 6          complaint, I believe, that's in 37, just moved to
 7          federal court.
 8                      MR. MCILNAY:  I agree.
 9   BY MR. MCILNAY:
10   Q      For consistency purposes and because it's been
11          referred to in the record already, could you turn
12          to Exhibit 36 instead?
13                      MS. O'MEARA:  Mr. McIlnay, they both
14          have been stipulated to.
15                      MR. MCILNAY:  I understand.  But I'm
16          just thinking somebody reading the transcript
17          doesn't have to look back.
18                      MS. O'MEARA:  That's fine.
19   BY MR. MCILNAY:
20   Q      Mr. Peter, this is a copy of a court record in
21          the United States District Court for the Eastern
22          District of Wisconsin.  And I want to direct your
23          attention most directly to EPA 0750, and that
24          single document entitled a Complaint runs up
25          through EPA 0760.  Would you take a few moments
0612
 1          to review that document silently to yourself.
 2                      Have you had a chance to review that
 3          at least briefly?
 4   A      Briefly.
 5   Q      This is a lawsuit that was filed on behalf of
 6          Behnke Lubricants?
 7   A      Correct.
 8   Q      Is it fair to assume that within Behnke, you were
 9          the person who made the ultimate decision that
10          you were going to authorize your counsel to
11          proceed with this lawsuit?
12   A      Yes.
13   Q      And prior to the filing of the lawsuit, were you
14          given an opportunity to review this complaint?
15   A      Yes.
16   Q      Feel free to refer back to the allegations in the
17          complaint if you need to refresh your
18          recollection.  But can you tell the Court --
19          strike that.  Your decision to file this
20          litigation, was it a business decision?
21   A      Yes.
22   Q      What motivated you to make the decision you did
23          to file this action?
24   A      Well, during the time that NSF was requesting us
25          to make label changes, we complied early on
0613
 1          without much fuss.  As the label changes that
 2          they were requesting got more and more
 3          restrictive, we fussed a little bit.  But in the
 4          summer of 2005, they threatened to pull our
 5          approvals if we didn't make the label changes
 6          that they requested.
 7   Q      Was there a specific change that they requested
 8          that was the straw that broke the --
 9   A      Well, they had requested that we make the change
10          to more of the treated article language.  And
11          then subsequent to that, they had requested and
12          demanded that we remove that language.  And then
13          subsequent to that, they insisted we remove just
14          the word even Micronox.
15   Q      And in that regard, can you review Paragraph 19
16          on Page 0756, which alleges that in or about
17          June, 2005, NSF -- pardon the characterization --
18          pressed Behnke further and demanded that Behnke
19          remove all reference to Micronox in connection
20          with any products certified by NSF.  Does that
21          refresh your recollection as to when that --
22   A      Yes.
23   Q      -- occurred?
24   A      Yes.
25   Q      And --
0614
 1                      MS. O'MEARA:  I'm sorry.
 2          Mr. McIlnay, what paragraph is that?
 3                      MR. MCILNAY:  19.
 4                      MS. O'MEARA:  Thank you.
 5   BY MR. MCILNAY:
 6   Q      If I can use a colloquialism, is that the straw
 7          that broke the camel's back at that point?
 8   A      Yes, it was.
 9   Q      Up until that point in time -- well, let's go
10          back a moment, back to the EPA 0750.  On the
11          first page there is a stamp over the caption
12          of -- happens to be this circuit court of January
13          13, 2006.  Is that consistent with your
14          recollection as to when the suit was first filed?
15   A      Yes.
16   Q      Up until January 13, 2006, other than the meeting
17          that you previously described, discussed in
18          Florida where Mr. Edwards was present, had you
19          had any contact with anyone from EPA?
20   A      No.
21   Q      Let me ask you then to turn to Complainant's
22          Exhibit 2, which should be in Volume I.  Would
23          you take a moment to review that?
24   A      Okay.
25   Q      What is exhibit Complainant's Exhibit 62 -- or I
0615
 1          mean 2.
 2   A      Notice of Intent to File a Civil Administrative
 3          Complaint against Behnke Lubricants.
 4   Q      And to whom is it addressed?
 5   A      Addressed to me.
 6   Q      What is the date?
 7   A      December 22, 2006.
 8   Q      And did you, in fact, receive a copy of that
 9          document through the United States mail sometime
10          within the time period of December 22nd?
11   A      Yes.
12   Q      Let me ask you to turn one exhibit back to
13          exhibit, Complainant's CX 1.  And specifically
14          could you refer to EPA Page 4.  And, Mr. Peter, I
15          would like to direct your attention -- you can
16          read it silently to yourself -- the first
17          paragraph at the top of that page.  Have you had
18          a chance to review that?
19   A      Yes.
20   Q      Okay.  From the time of your brief meeting with
21          Mr. Edwards in Florida to October of 2006, had
22          you been contacted, or to your knowledge had
23          anyone at Behnke been contacted by the
24          Environmental Protection Agency relative to
25          Micronox?
0616
 1   A      No.
 2   Q      And what happened -- I understand you can read
 3          this -- but what happened to the best of your
 4          recollection at your meeting on August 11, 2006?
 5          Who was present?
 6   A      I thought he was a representative of the
 7          Wisconsin DNR.  Through his testimony, it's
 8          obvious he was with another agency, probably the
 9          agricultural agency in Wisconsin.  But we had a
10          meeting, and he just pretty much simply mentioned
11          that he had been requested to come in and collect
12          some information for EPA.
13   Q      Okay.  Did you have any particular conversation
14          as to --
15                      MS. O'MEARA:  Excuse me, Your Honor.
16          Someone just walked into the courtroom, and if
17          this person is a witness, that they are to be
18          sequestered.  So I just want to get some
19          clarification.
20                      MR. MCILNAY:  Sure.  Actually she is
21          a secretary, paralegal in my office here to
22          deliver some documents.
23                      MS. O'MEARA:  Thank you.  I just
24          wanted to make sure.  I didn't know who it was.
25                      MR. MCILNAY:  For the record, Debbie
0617
 1          Phfannerstill, P-H-F-A-N-N-E-R-S-T-I-L-L.
 2                      MS. O'MEARA:  Thank you.
 3                      MR. MCILNAY:  Was the question
 4          answered?
 5                      (The question was read.)
 6   BY MR. MCILNAY:
 7   Q      Let me withdraw that question.  Do you recall who
 8          you met with on August --
 9   A      Yes.  I don't recall his name at the moment.
10   Q      Was it the gentleman that testified as the first
11          witness in this matter?
12   A      Yes, it was.
13   Q      At that point in time, did he discuss with you
14          concerns about labeling?
15   A      I think at that point in time we had been
16          presented with this -- with his Wisconsin
17          Departmental Agricultural sheet that he had
18          provided us either on that visit or the previous
19          visit.
20   Q      All right.  I want to focus on your conversation
21          with him.  Do you recall having a conversation?
22   A      I recall having a brief conversation, but the
23          content of it --
24   Q      You don't recall the details?
25   A      I don't recall too much.
0618
 1   Q      From October 11 -- August 11, 2006, to the date
 2          of the correspondence identified as Complainant's
 3          Exhibit 2, had you been contacted by anybody from
 4          EPA?
 5   A      No.
 6   Q      All right.  When you received Complainant's
 7          Exhibit 2, what, if any, action did you take,
 8          other than call me?
 9   A      That's pretty much it, I think, when something
10          like that shows up.
11   Q      All right.  Let me ask you.  To direct your
12          attention to 0060, it's the second page of
13          Complainant's Exhibit 2.  And specifically you
14          see the name and address for Mr. Bonace there?
15   A      Yes.
16   Q      I want to direct your attention to the last
17          sentence of the previous paragraph where it says,
18          if you wish to have a conference with the EPA.
19          Do you see that?
20   A      Yes.
21   Q      Did you take advantage of that invitation to have
22          a conference with the EPA?
23   A      Yes, we did schedule a conference.
24   Q      And do you recall approximately how long after
25          you received this letter your conference with the
0619
 1          EPA took place?
 2   A      I believe it was in February.
 3   Q      Of --
 4   A      Of 2006 -- or 2007.
 5   Q      Thank you.
 6   A      Okay.
 7   Q      And the conference took place at the EPA's
 8          regional offices in Chicago?
 9   A      Correct.
10   Q      All right.  And in attendance were you, myself,
11          another attorney in my office, Mr. Paquette,
12          Attorney O'Meara and Mr. Bonace, correct?
13   A      To the best of my recollection.
14   Q      Walking into that meeting, did you have an
15          understanding as to what the terminology,
16          labeling, meant?
17   A      I had my understanding.
18   Q      What was your understanding prior to that
19          meeting?
20   A      It was the label applied to any of our packaging.
21   Q      All right.  Is it fair to say that you were made
22          aware at the meeting that the EPA considered
23          collateral documentation in addition to strictly
24          the paper put on your --
25   A      I was made aware that their lasso was a lot
0620
 1          bigger than what typical industry practices would
 2          be.
 3   Q      All right.  And after that meeting, did you take
 4          any steps to address concerns about language in
 5          collateral material?
 6   A      Yes, we did.
 7   Q      And I know that specific dates and so on may be
 8          difficult to recall, but generally what action
 9          did you take?
10   A      Well, we tried to bring the labeling more in line
11          with what NSF's original recommendations were, or
12          the -- let me correct that.  We tried to bring
13          the other documentation, product data sheets, so
14          forth, more in line with what NSF had requested
15          us to do in the early changes they had requested
16          on the labeling.
17   Q      All right.  Such as?
18   A      Such as removing references to specific
19          pathogens, such as acting more in terms of that
20          we were protecting the lubricant itself instead
21          of, you know, pathogens on food, processed food.
22          I felt that I needed a clarification, having FDA
23          involved in this clarification process, and
24          hadn't gotten that, so quite personally I
25          resisted making Draconian changes to our product
0621
 1          data sheets, but we did make changes.
 2   Q      What about the references to Listeria,
 3          Salmonella, E. coli in the -- that had been in
 4          the --
 5   A      I believe most of that was purged.
 6   Q      Okay.  Let me step back a moment because you kind
 7          of alluded to this before, but what was the
 8          rationale in your mind -- back up.  Let me go
 9          through the foundation.  With regard to those
10          product data sheets, did you have the last say as
11          to the language that was actually put in those?
12   A      For the most part they would cross my desk for
13          signoff.  Sometimes in -- for expediency cases,
14          I'm not always available, and they don't, but
15          usually they would.
16   Q      Let's be very specific with reference to E. coli,
17          Listeria and Salmonella.
18   A      Yes.
19   Q      You signed off on that language?
20   A      Yes.
21   Q      When you did that, what was your rationale for
22          referencing those particular organisms?
23   A      You're backing the calendar up a little bit to
24          the point where we wanted to -- when we
25          discovered that we had something that not only
0622
 1          meant FDA guidelines, but provided an additional
 2          benefit, much like increased rust protection or
 3          better anti-wear or something like that, that
 4          would be a benefit to our end customers, met the
 5          formulation guidelines, and we wanted to promote
 6          it and use it as a sales tool.  That's what we
 7          were in business for, is to sell product.  We --
 8          being Troy Paquette and I -- discussed the
 9          ramifications of the labeling.  Troy was somewhat
10          aware from his past employment of EPA and some of
11          the testing regarding -- I think at that point it
12          was chemical fertilizers or something like that,
13          and the extensive and extremely expensive
14          processes to go through to get those types of
15          approvals and the subsequent possible state
16          approvals, the different things that were needed.
17          So we took the tact that we would, at all costs,
18          do our best job to avoid language that would
19          implicate us in FIFRA labeling and try and stay
20          within the language that was given to us in the
21          FDA guidelines.
22   Q      All right.  Other than expense and time
23          consumption, and I think the other issue you
24          raised concerning Mr. Paquette was involving
25          individual states, did you have any other
0623
 1          concerns about pursuing EPA registration of
 2          either your lubricant products or any additives?
 3   A      We were very concerned that these being
 4          food-grade products would then have to carry some
 5          type of EPA registration number, insignia, logo
 6          or something indicating that these products
 7          contained an EPA pesticide.
 8   Q      I'm going to jump back to the meeting that we had
 9          in February of 2007 with the EPA.  Did you do
10          further investigation subsequent to that meeting
11          to consider registration under FIFRA of either
12          the additive or the lubricants themselves?
13   A      Yes, we did.
14                      MS. O'MEARA:  I'm sorry.  I need that
15          last part --
16                      JUDGE GUNNING:  Right.  And if you
17          could just not trail off at the end.
18                      MR. MCILNAY:  I'm sorry.
19                      (The question was read.)
20                      THE WITNESS:  Yes, we did.
21   BY MR. MCILNAY:
22   Q      Okay.  Did you choose to pursue registration of
23          Micronox, an additive or the lubricant?
24   A      No, we did not.
25   Q      Why not?
0624
 1   A      Well, we felt that based on the food-grade, food
 2          additive nature of the product that we were
 3          putting out, it still would fall under the
 4          auspices of FDA.  We felt that if we had a label
 5          on these products as would be required indicating
 6          a pesticide was incorporated into the
 7          formulation, it would be shooting ourselves in
 8          our foot regarding marketing these products.
 9   Q      Now, did you take any action to investigate
10          whether or not your concern about shooting
11          yourself in the foot had any validity?
12   A      Yes.  We did a market study with our salespeople
13          to talk to customers to see if that was going to
14          be a concern.  And it was a concern.
15   Q      And as you understood the concern, what was it?
16   A      Well, if I can use a hypothetical, we have a
17          contamination incident at a food processor, we
18          have litigation in process with the injured
19          parties, and the attorney notes that the
20          food-grade lubricants that they were using in the
21          processes were also containing an EPA-registered
22          pesticide, that's -- with the concerns of food
23          safety these days, it wasn't a risk they were
24          willing to take.
25   Q      Okay.  At the meeting in Chicago, were you made
0625
 1          aware that a competitor, if I will -- well,
 2          strike that.  Do you know who Petro Canada is?
 3   A      Yes.
 4   Q      Are they a competitor in food-grade lubricant
 5          market?
 6   A      Yes, they are.  A recent competitor.
 7   Q      What?
 8   A      A recent competitor.
 9   Q      And were you made aware that they had had, in
10          fact, pursued registration of an additive known
11          as benzoic acid?
12   A      I was made aware of that at the meeting in
13          Chicago.
14   Q      All right.  Even with that knowledge, you were
15          concerned about market acceptance of a product
16          containing EPA-registered pesticide?
17   A      Yes.
18   Q      Now, I know that you may not have all of the
19          details as to the timing, but as we sit here
20          today, to the best of your knowledge, does any of
21          Behnke's labeling as you understand it, product
22          labels that are currently being sold, newly
23          shipped, contain any claim to the antimicrobial
24          other than the name Micronox?
25   A      I can't be absolutely certain that none of the
0626
 1          labels as I understand them contain any reference
 2          to the word antimicrobial.  But beyond anything
 3          much like that, I would not think there would be
 4          much language beyond that, other than the word
 5          Micronox.
 6   Q      Was it at least your intent and attempt to make
 7          sure that was the only reference?
 8   A      Yes.
 9   Q      By the way, when the greases are manufactured by
10          another party, where does the labeling of the
11          greases take place?
12   A      Typically at our facility.
13   Q      All right.  To the best of your knowledge, as you
14          sit here today, do any of your material data
15          sheets make any references to antimicrobial
16          properties, other than the name Micronox?
17   A      To the best of my knowledge, no.  And most of
18          them probably would not even mention the name
19          Micronox.
20   Q      To the best of your knowledge, as you sit here
21          today, do any of your advertisements that are
22          paid advertising in media make reference to
23          antimicrobial properties in your food-grade
24          lubricants, other than maybe the name Micronox?
25   A      No.
0627
 1   Q      They do not?
 2   A      They do not.
 3   Q      Okay.  While we're on that subject, are you the
 4          person at Behnke that makes the decisions as to
 5          where print media advertising will be placed?
 6   A      Yes.
 7   Q      And other than print media advertising, does
 8          Behnke engage in any other form of advertising,
 9          television, radio, that sort of thing, regarding
10          its food-grade lubricants?
11   A      No.
12   Q      And let's take the period of time since you came
13          up with -- go ahead.
14   A      I might correct that.  We do attend trade shows,
15          so if that's considered advertising.
16   Q      Let's deal with those separately.  I'll come back
17          to those.  Okay.  The period of time, roughly
18          October of 2001, when you first used the term
19          Micronox in commerce according to the Patent and
20          Trademark application, to today's date, what
21          types of media have you placed ads in?
22   A      Trade publications and trade shows.
23   Q      Okay.  And in particular, is there a particular
24          type of trade publications that you choose?
25   A      Regarding food-grade products?
0628
 1   Q      Food-grade lubricants.
 2   A      Regarding food-grade lubricants, it would be food
 3          processing type of -- types of publications.
 4   Q      Can you give us some examples of those?
 5   A      Food Engineering, I believe there is one called
 6          Meat and Poultry.  There are only a handful of
 7          them that we utilize, but I don't know all their
 8          names right now.
 9   Q      Okay.  Now, are you also the person at Behnke
10          that's ultimately responsible for how your
11          advertising dollars, your advertising budget --
12   A      Yes.
13   Q      -- is going to be used?  Why do you choose those
14          particular publications?
15   A      Well, because they're in the vertical market that
16          we're trying to sell the products into.
17   Q      All right.  Let's go back then to the trade
18          shows.  And all of these questions deal with
19          food-grade lubricants.
20   A      Okay.
21   Q      Which as I stated earlier, means H1.
22   A      Okay.
23   Q      What -- from the period of roughly October, 2001
24          to today's date, what sorts of trade shows did
25          Behnke attend to promote those food-grade
0629
 1          lubricants?
 2   A      They would be regional and/or national food
 3          processing related trade shows, whether equipment
 4          related or regional shows for affiliated
 5          associations within those regions.
 6   Q      All right.  And is it common for your
 7          representatives to these trade shows to take
 8          literature about Behnke's food-grade lubricants?
 9   A      Yes.
10   Q      Since our meeting in Chicago in February of 2007
11          with the EPA, have you made any efforts to make
12          sure that that literature makes no references to
13          the antimicrobial properties, other than perhaps
14          the name Micronox?
15   A      Well, again, we've made efforts to purge as much
16          of the offensive, to EPA, language out of there,
17          but I believe that there is probably still some
18          reference to the word antimicrobial.
19   Q      All right.  Finally, we've heard testimony
20          earlier in the case about the EPA's investigation
21          of JAX's web site.
22   A      Uh-huh.
23   Q      Is that a yes?
24   A      Yes.  Sorry.
25   Q      Mr. Peter, who developed your web site?
0630
 1   A      I don't remember.
 2   Q      Okay.
 3   A      It's pretty old.  We have a meeting next week to
 4          update it.
 5   Q      All right.  Who within Behnke, if anyone, is
 6          responsible or has the ability to update the web
 7          site?
 8   A      In the past, I did.  I have another person in the
 9          office who can make changes to it now.
10   Q      Okay.  And at what point in time did the other
11          person come on board?
12   A      She's been able to make web page changes probably
13          for the last two to three years.
14   Q      All right.  Subsequent to the meeting with the
15          EPA in Chicago in February of 2007, did you
16          personally make any effort to make changes to
17          Behnke's web site?
18   A      I may have either personally made efforts to make
19          those changes or personally directed that those
20          changes be made.
21   Q      What was your intent in making those changes?
22   A      To remove language that the EPA considered
23          offensive.
24   Q      All right.  Now, we heard testimony from
25          Mr. Bonace that as early as Monday of this
0631
 1          week -- as late as Monday of this week, and he
 2          read them into the record, certain statements
 3          contained in portions of your web site.  Do you
 4          recall that?
 5   A      Yes, I recall.
 6   Q      And you don't disagree that those were there?
 7   A      No.
 8   Q      What did you do after you heard that on Monday?
 9   A      I left a voice mail Monday night, and went into
10          the office Tuesday morning and made sure they got
11          changed, because we missed them.
12   Q      Let me ask you, did you direct your web site
13          person to specifically leave those claims on your
14          web site?
15   A      No, I did not.
16   Q      Was it your intent that all of the claims be
17          removed?
18   A      Yes.
19   Q      Subsequent to the meeting in Chicago, did you
20          make any attempt to retrieve literature that had
21          previously been distributed to customers or
22          potential customers that made claims that have
23          been complained about at the hearing today?
24   A      No.
25   Q      Why is that?
0632
 1   A      Because I felt like the ball was still up in the
 2          air.  We hadn't reached a decision regarding
 3          where we stand on this.  We have no opinion from
 4          FDA.  We have no opinion from -- we have EPA's
 5          opinion, but we have no opinion from the agency
 6          that governs our products.  That's part of the
 7          frustrating part of this whole process.
 8   Q      All right.  You also market some products that
 9          are private -- I mean, you manufacture products
10          that are private labeled?
11   A      Yes.
12   Q      And one of those private labels is FMC.  Do I
13          have the name right?
14   A      Correct.
15   Q      And, for the record, can you describe what that
16          means when something is private labeled?
17   A      Companies will have us relabel our products under
18          their name and their brand name so they may sell
19          them through their parts distribution or use them
20          on their equipment as the OEM build it, and then
21          recommend that those products of theirs be used
22          subsequently on their equipment in the field.
23   Q      Okay.  You used the term OAM.
24   A      OEM.
25   Q      OEM, what does that mean?
0633
 1   A      That means original equipment manufacturer.
 2   Q      Okay.  So the concept is that to their consumers,
 3          this appears to be their product, they've put
 4          their label on it?
 5   A      Correct.
 6   Q      How much, if any, input does Behnke have into the
 7          content of its private label customers, what they
 8          put into their labels?
 9   A      We generally don't have any input, per se, but
10          we'll supply them with the labeling that we use.
11   Q      All right.  Do you actually put the labels on
12          their products in your plant?
13   A      Yes.  It goes out the door as their product.
14   Q      All right.  What steps, if any, did you take
15          subsequent to our meeting with EPA in February
16          of 2007, to address claims that might be made on
17          a private labeled product?
18   A      With FMC, I didn't take any steps with their
19          labels because I don't necessarily control their
20          labels, but I told them about the concerns that
21          EPA had raised regarding Micronox and that they
22          may want to make -- I didn't even ask them to
23          make it.  I said, be on call to hear if some
24          changes have to be made regarding those labels.
25   Q      Did you advise FMC that you had received an EPA
0634
 1          notice of intent to file an action?
 2   A      It has come up, and they are aware of it.
 3   Q      Do you have other private label customers besides
 4          FMC?
 5   A      Yes.
 6   Q      Are any of them private label customers for the
 7          H1 products?
 8   A      Some are.  I would say FMC is the largest.
 9   Q      Have you notified other private label customers
10          of the fact that you received a notice of intent
11          to file a complaint regarding labeling issues?
12   A      Likely not.
13   Q      Have you kept it a secret?
14   A      No.
15   Q      Have you made a conscious effort to contact any
16          of those people to discuss labeling?
17   A      No.
18   Q      You also have a distribution network of
19          distributors.  Are these parties employees of
20          JAX, employed by JAX?
21   A      No.  Our distributors are not employed by JAX,
22          no.
23   Q      All right.  Are they independent business people?
24   A      Yes.
25   Q      All right.  What communications have you had with
0635
 1          distributors concerning their continued use of
 2          any literature that might be out there that had
 3          claims that you were made aware of that --
 4   A      Communication would have been similar to what I
 5          may have told FMC, that there are some perceived
 6          problems with the labeling, and that they should
 7          stand by for a resolution.
 8   Q      All right.  A good part of the EPA's case was
 9          exhibits concerning visits that Mr. Bonace made
10          to your customers in March, generally, of 2007.
11          Do you recall that evidence and testimony?
12   A      Yes.
13   Q      All right.  Subsequent to March of 2007, have any
14          of those customers that were described in those
15          materials ceased using your products?
16                      MS. O'MEARA:  Objection, Your Honor.
17          It's immaterial, irrelevant.
18                      MR. MCILNAY:  Your Honor, I think it
19          goes to the gravity of his state of mind and this
20          market acceptance issue.
21                      JUDGE GUNNING:  I'll allow it.  The
22          probative value that it's accorded, of course, is
23          what is important, but I will allow the question.
24                      THE WITNESS:  Yes.
25   
0636
 1   BY MR. MCILNAY:
 2   Q      And in the interest of brevity, that was
 3          Jennie-O's Turkey Store?
 4   A      Yes.
 5   Q      That was actually the company visited by the
 6          Minnesota Department of Agriculture?
 7   A      Yes.
 8   Q      Have you had an opportunity since Monday evening
 9          to either confirm for yourself or talk to your
10          web -- whatever title she has -- to see if she's
11          made those changes?
12   A      No, I have not.
13   Q      All right.  In terms of the chemistry of your
14          products and the compliance of that chemistry mix
15          of specific food-grade H1 lubricants, is that
16          Mr. Paquette's responsibility?
17   A      Primarily Mr. Paquette's responsibility.
18   Q      Is it fair to say you rely on him to make the
19          determination that the product formula comply
20          with the FDA requirement for H1 certification?
21   A      Yes, I rely on him, and also our document
22          submission person does a double-check.
23   Q      All right.  Let's go back then very briefly.  You
24          discussed that after you had made the
25          determination to incorporate this technology in
0637
 1          other food-grade lubricants, that you had sent
 2          the products out for efficacy testing.
 3   A      Yes.
 4   Q      The labs that you used, have you used those labs
 5          in the past?
 6   A      Yes.
 7   Q      And the data that came from that testing, you
 8          maintained those data in-house?
 9   A      Yes.
10   Q      Had a customer ever requested to see the data, to
11          your knowledge?
12   A      Perhaps.
13   Q      Had a customer requested the name and a contact
14          with the lab that actually did the testing --
15                      MS. O'MEARA:  I'm going to object,
16          Your Honor.  This is hearsay.
17                      JUDGE GUNNING:  Overruled.
18   BY MR. MCILNAY:
19   Q      -- would you have provided it to them?
20   A      Yes.
21   Q      In fact, did any of your literature talk about
22          which labs had done the testing, if you recall?
23   A      No.  We had literature published at one point in
24          time that actually had the reports from the
25          laboratories photocopied on it, promotional
0638
 1          material.
 2   Q      With the lab's --
 3   A      With the lab's report incorporated into the
 4          material.
 5   Q      I was going to ask, it's letterhead?
 6   A      Letterhead was on it, yes.
 7   Q      And when was that?
 8   A      I don't recall.  But, of course, all this is
 9          between 2002 and now, but within the last three
10          years.
11   Q      Has there been one laboratory that was used or
12          more than one?
13   A      Probably a better question for Troy Paquette, but
14          I believe only one.
15   Q      That you engaged?
16   A      I believe only one.
17   Q      All right.  I believe your testimony was that
18          Kraft did independent testing.  That wasn't the
19          same testing that you referred to?
20   A      Correct.
21   Q      Are you aware of any other customers who have
22          done independent testing?
23   A      I think there are numerous customers that have
24          done independent testing.
25   Q      These are food processors?
0639
 1   A      Correct.
 2                      MR. MCILNAY:  Your Honor, that's all
 3          the questions I have for him on direct.
 4                      JUDGE GUNNING:  Okay.  How about we
 5          take a five, ten-minute break before commencing
 6          cross of this witness.
 7                      MS. O'MEARA:  Thank you.
 8                      JUDGE GUNNING:  Okay.
 9                      (A recess was taken.)
10                      MR. MCILNAY:  Your Honor, on my break
11          it occurred to me that I had overlooked one
12          document that I wanted to authenticate and offer
13          through this witness.  And I spoke briefly with
14          Attorney O'Meara.  I can do it from my seat here,
15          if I might.
16   BY MR. MCILNAY:
17   Q      Mr. Peter, would you turn to, I believe it's
18          Exhibit 69 in the black books.  Do you see that
19          exhibit?
20   A      Yes.
21   Q      Generally can you describe what is contained
22          within Respondent's Exhibit 69?
23   A      It appears to be a series of product data sheets,
24          material data sheets, some trade publication
25          information, NSF approval letters, USDA approval
0640
 1          letters, all relating to the products in
 2          question.
 3   Q      And --
 4                      MS. O'MEARA:  Your Honor, if I may
 5          interrupt for a second.  I don't have any
 6          objection if you want to get these into the
 7          record.
 8                      MR. MCILNAY:  Okay.  We're just going
 9          to offer them.
10                      JUDGE GUNNING:  Okay.  So we're
11          talking Exhibit 69 in its entirety.
12                      MR. MCILNAY:  RX.
13                      JUDGE GUNNING:  Yes.  Please mark as
14          received Respondent's Exhibit 69.
15                      MR. MCILNAY:  Thank you.
16                      JUDGE GUNNING:  Were there any other
17          exhibits?
18                      MR. MCILNAY:  Not with this witness,
19          Your Honor.
20                      JUDGE GUNNING:  Okay.
21                      MS. O'MEARA:  May I proceed?
22                      JUDGE GUNNING:  Yes.
23                      MS. O'MEARA:  Thank you.
24                         EXAMINATION
25   
0641
 1   BY MS. O'MEARA:
 2   Q      Good afternoon, Mr. Peter.
 3   A      Good afternoon.
 4   Q      You testified about the lubricant, and its main
 5          purpose was to lubricate equipment; isn't that
 6          correct?
 7   A      Correct.
 8   Q      And you said that these food-grade lubricants
 9          that we've been talking about actually cost
10          double the amount sometimes; is that correct?
11   A      It's a good rough number.
12   Q      Okay.  But you said they're not perceived to work
13          as well as --
14   A      History would dictate they're not perceived to
15          work as well because they don't have the full
16          formula regulatory products available to them.
17   Q      So they don't work as well as lubricants; is that
18          correct?
19   A      Correct.
20   Q      Okay.  You also said that there's really been an
21          evolution over these lubricants; isn't that
22          correct?
23   A      Correct.
24   Q      So it's come kind of a long way, correct?
25   A      Correct.
0642
 1   Q      And can you expect it to go even further in the
 2          future?
 3   A      I would hope so.
 4   Q      Okay.  It would certainly open up your market;
 5          wouldn't it?
 6   A      I --
 7   Q      You would hope so?
 8   A      If we're the ones that are the ones to push it
 9          further.
10   Q      Okay.  Now, you expect it to get better.  Could
11          you expect it to -- could you see -- you talked
12          about a hypothetical, I believe.  Let me see if I
13          can find it.  Well, I'll get to that in a second.
14          I suppose I'll find it.  But you said you want to
15          see the market open up for these lubricants,
16          right?
17   A      I'd like to see my market open up for these
18          lubricants.
19   Q      Okay.  And the lubricants that are food-grade; is
20          that correct?
21   A      Yes.  I'm not discriminatory, though.  I'll have
22          it open up for any of these lubricants.
23   Q      I can appreciate that, because you are a
24          business, and you're in the business of making
25          money, correct?
0643
 1   A      Right.
 2   Q      Okay.  And you also said that you couldn't see a
 3          use for these food-grade lubricants out of a food
 4          processing facility; is that correct?
 5   A      I can't perceive a use why anyone would be
 6          motivated to use them outside of a food
 7          processing facility.
 8   Q      Okay.  If someone was, though, would you sell it
 9          to them?
10   A      I have little or no control over where the end
11          user uses these products, so I would.
12   Q      You have little or no control where it's used.
13          So it could be used in a nonfood form, correct?
14   A      In theory.
15   Q      In theory.  Okay.  Let me give you a
16          hypothetical.  Let's say Hasbro Toy Company comes
17          to you and wants to have you enter into a $1
18          million contract for your lubricants, okay,
19          because they believe that this lubricant is
20          falling onto those toys, and those toys are being
21          chewed by children, and it will safeguard the
22          children.  Would you engage in that contract with
23          them?
24   A      It's a legitimate concern.
25   Q      Okay.  Would you engage in that contract with
0644
 1          them?  Would you then sell that lubricant, that
 2          food-grade lubricant?  They're willing to take
 3          that risk to safeguard children.  Would you sell
 4          that food-grade lubricant to Hasbro?
 5   A      Yes, I would, sure.
 6   Q      Okay.  And they would use it in a nonfood form,
 7          and you couldn't control that; isn't that
 8          correct?
 9   A      Correct.
10   Q      Okay.  And let me give you another example.  You
11          said that they don't get sold in the retail
12          market.  I bet you'd like to open up the retail
13          market; wouldn't you?
14   A      No.  I have no interest in retail.
15   Q      You have no interest in selling your product in
16          another market?
17   A      No.
18   Q      Okay.
19   A      Not retail.
20   Q      Let me give you a hypothetical.  Let's say pet
21          stores want to come to you and buy that product
22          because the wheels on their hamster wheels are
23          squeaking, and the hamsters are licking that
24          wheel.  And this lubricant is food-grade.  Would
25          you sell it to them?
0645
 1   A      I'll sell it to whoever wants to buy it.
 2   Q      Okay.  All right.
 3   A      If they pay their bill.
 4   Q      If they pay the bill.  Okay.  Would you consider
 5          a toy a food?
 6   A      Unless it's an edible toy, I wouldn't.
 7   Q      Okay.  Just a plastic toy, would you consider
 8          that food?
 9   A      I've never eaten one.
10   Q      Okay.  Good.  How about this pen, is this food?
11   A      I don't consider a pen food, no.
12   Q      Okay.  Let me give you another hypothetical.
13          This is a Skilcraft.  If they came to you and
14          said, we want to use these in our manufacturing
15          facilities because we think the lubricant is
16          falling onto the production line, and we'd rather
17          have a food-grade lubricant instead.  Because I
18          tend to chew my pens when I get nervous, so I
19          might consume it, and someone else might.  Would
20          you sell it to them?
21   A      Certainly.
22   Q      Okay.  You testified earlier about the fact that
23          you were developing a new lubricant to have these
24          antimicrobial properties, correct?
25   A      Yes.
0646
 1   Q      Okay.  And you said something about the fact that
 2          there is trial and error involved; is that
 3          correct?
 4   A      I don't know if I said that regarding the
 5          antimicrobial properties, but I said that in
 6          regard to developing products in general.
 7   Q      Okay.  Well, thank you for clarifying that,
 8          because that's what I'm trying to clarify.  Was
 9          there any trial and error involved in developing
10          the Micronox technology, which you said is
11          inherent in your lubricant?  You did some mixing,
12          and I think the proper word that was used was
13          concoction.
14   A      Well, there was an increased performance through
15          Micronox, but food-grade lubricants, not just JAX
16          food-grade lubricants, have for -- I know you're
17          new to this party -- have for 20 or 25 years been
18          mentioning that they have antimicrobial
19          properties.
20   Q      I want to focus on your five products and the
21          development of the Micronox technology that we're
22          talking about.  What I'm trying to find out is,
23          was there some trial and error that occurred?  Or
24          perhaps if you think it's a question better asked
25          to Mr. Paquette, I'll reserve it until then.  But
0647
 1          you called it a concoction, and I'm just trying
 2          to understand what that means.
 3   A      I don't think I referred to that particular thing
 4          as a concoction.  But in development of these
 5          products, there is some work in the laboratory
 6          before they go to the field.  If that's trial and
 7          error, yes, there are trial and error in terms of
 8          formulating the products even within our own
 9          facility.
10   Q      Okay.  Thank you.  Once the Micronox formula was
11          developed, could it then be reliably replicated,
12          or was there still trial and error going on?
13   A      It's reliably replicated.
14   Q      Okay.  And there's a specific formula for
15          Micronox technology that you can reliably
16          replicate to put into a lubricant?
17   A      No, there is not a specific formula for Micronox
18          technology.  The Micronox technology refers to
19          the enhanced antimicrobial characteristics of the
20          food-grade lubricants after we determine that
21          there was some FDA-approved ingredients that
22          would bump that performance up.
23   Q      So did you have to add things into the lubricant
24          to develop that enhanced property that you then
25          call Micronox?
0648
 1   A      Add and/or rearrange.
 2   Q      Add or rearrange.  But your company knew what you
 3          were adding or rearranging to create that
 4          additional property, correct, because you had a
 5          lubricant, and then you reformulated that
 6          lubricant, correct?
 7   A      Right.
 8   Q      Okay.  So you could probably pinpoint exactly
 9          what was put in there to make it enhanced as a
10          result of Micronox technology, correct?
11   A      I probably could.
12   Q      Okay.  You mentioned earlier when you were
13          talking about white oils and synthetic-based
14          oils, you said something about anti -- you said
15          something about performance additives.  Is the
16          antimicrobial property or the Micronox a
17          performance additive?
18   A      No.
19   Q      It is not.  Okay.  Or enhancer, rather,
20          performance enhancer?
21   A      It's more of a benefit than a -- when we talk
22          about performance lubricants, we would talk more
23          about lubricated-related performance enhancement,
24          such as better wear protection or better rust
25          protection.
0649
 1   Q      So this was a benefit, and the other things are
 2          enhancers?
 3   A      The other things are properties.  Additives are
 4          added to achieve better properties of the
 5          lubricant.
 6   Q      But you called Micronox an -- Micronox
 7          antimicrobial properties, right?  Just trying to
 8          understand the difference between --
 9   A      We call Micronox, Micronox antimicrobial
10          technology.
11   Q      Technology, okay.  You also talked about when the
12          certification, the USDA involvement stopped back
13          in, I think, 1999, correct?
14   A      Correct.
15   Q      And you talked about NSF?
16   A      Right.
17   Q      Correct.  And they began to charge a fee to do
18          what USDA used to do for free?
19   A      Correct.
20   Q      Okay.  And you could self-certify, though, right?
21   A      Correct.
22   Q      Yeah.  So -- and NSF is not a governmental
23          agency; is it?
24   A      Correct.
25   Q      So there's nobody overseeing NSF from the
0650
 1          government, correct?
 2   A      Correct.
 3   Q      Okay.
 4   A      No.  I'm making an assumption on that.  I
 5          don't know if there's --
 6   Q      It's your belief.
 7   A      It's my belief.  I know they have relationships
 8          with government branches, such as EPA.
 9   Q      Okay.
10   A      But whether they have government oversight, I --
11   Q      But it's your belief that --
12   A      It's my belief they would not.
13   Q      Okay.  Thank you.
14   A      Otherwise, I couldn't sue them.
15                      MS. O'MEARA:  Bear with me.  I have a
16          lot of notes to go through, Your Honor if that's
17          okay.
18   BY MS. O'MEARA:
19   Q      You said something about -- Mr. McIlnay asked you
20          about, you know, whether you control what's on
21          the labels and what's going on in your company,
22          correct?
23   A      Correct.
24   Q      And you said that you take responsibility for
25          what's going on in your company, correct?
0651
 1   A      Correct.
 2   Q      Okay.  I just want to clarify.  I know we're
 3          talking about five JAX lubricants, but you have a
 4          whole line of JAX lubricants, correct?
 5   A      Correct.
 6   Q      How many products would you say are in that line?
 7   A      Perhaps 300.
 8   Q      300.  And do they all contain Micronox?
 9   A      No.
10   Q      How many of them contain Micronox?
11   A      Micronox would be limited to the food-grade
12          products.
13   Q      Okay.  How many of your JAX -- okay.  I see what
14          you're saying.  How many of your food-grade
15          products -- how many food-grade products do you
16          have in your JAX line?
17   A      I believe one of our publications says we have
18          165 NSF-approved products.
19   Q      So you have 165 NSF H1 approved products?
20   A      No.  That would include HS products.  So -- well,
21          maybe that is H1 products.  It's well over 100.
22          It's under 200.
23   Q      How many do you have that aren't NSF approved but
24          still are H1?
25   A      There may be a handful.
0652
 1   Q      Okay.  So let's just call it over 165 products.
 2          And do they all contain Micronox technology?
 3   A      I would say virtually all.  Perhaps not every
 4          single one, but virtually all.
 5   Q      And do you market all of them in the same manner?
 6   A      No.  They're all marketed to different submarkets
 7          of the vertical food machinery market.
 8   Q      Do you make antimicrobial claims regarding all of
 9          these 165-plus products?
10   A      I don't believe we do with all of them, no.
11   Q      Okay.  How about -- I understand you didn't
12          understand what labeling meant, as EPA defines
13          it.  How about labeling claims, the actual label
14          that is affixed on the product, do you make the
15          claims on the labels of the product.
16   A      Well, I explained any labeling claims that we
17          have now would be limited to the word Micronox
18          and perhaps the word antimicrobial.
19   Q      So you still use the word antimicrobial and
20          perhaps the word Micronox on all 165 products?
21   A      I couldn't answer that.
22   Q      Would it be over 50?
23   A      It would be over 50 percent.
24   Q      Okay.  So that's over 82 and a half.  Would it be
25          over 100?
0653
 1   A      I don't know.
 2   Q      Would it be over 120?
 3   A      I don't know.
 4                      MR. MCILNAY:  I'm sorry.  I can't
 5          hear your answers.
 6                      Would you read back the last two
 7          answers?
 8                      (The questions and answers were
 9                       read.)
10                      MR. MCILNAY:  Thank you.
11   BY MS. O'MEARA:
12   Q      But you admit you're responsible for all of them,
13          right, because you just said you're responsible
14          for what's going on in your company, correct?
15   A      Yes.
16   Q      Well, let's talk about -- you testified earlier
17          about the fact that you researched some of the
18          EPA regulations and guidance and statutes, or you
19          researched to see if you were in compliance with
20          EPA?
21   A      We did not want to be listed under FIFRA.
22   Q      You did not want to be listed under FIFRA?
23   A      We did not want to be.
24   Q      Okay.  So did you keep that in mind when you did
25          research?
0654
 1   A      Yes, we did.
 2   Q      Okay.  And let's talk about labeling first.  Did
 3          you research our regulations and statute?
 4   A      I did limited research.  Mr. Paquette would have
 5          done more.
 6   Q      Okay.  But you said you did some research with
 7          him?
 8   A      Yes.
 9                      MS. O'MEARA:  May I approach the
10          witness?
11                      JUDGE GUNNING:  Yes.
12                      MS. O'MEARA:  Thank you.  I'm going
13          to hand him, Mr. Peter, the FIFRA statute, Your
14          Honor.  And I'm at -- bear with me because it's
15          going to be tricky sometimes -- under the
16          definition section, 136, subsection P, which is
17          entitled Label and Labeling.
18                      MR. MCILNAY:  When you say 136,
19          that's the USC citation?
20                      MS. O'MEARA:  Yes.
21   BY MS. O'MEARA:
22   Q      Right here, P.  Could you read out loud to the
23          Court what the definition of label and labeling
24          is, please?
25   A      Label and Labeling.  Label, the term label means
0655
 1          the written, printed or graphic matter on or
 2          attached to the pesticide or device or any of its
 3          containers or wrappers.  Labeling, the term
 4          labeling means all labels and other -- and all
 5          other written, printed or graphic matter --
 6   Q      Okay.
 7   A      -- accompanying the pesticide or device at any
 8          time.
 9   Q      Okay.  Thank you.  Now I'm going to show you our
10          FIFRA regulations.  Are you familiar with these?
11   A      Not that form, but we may have it.
12   Q      Okay.  I'm going to direct you to 40 CFR 152.15,
13          which is pesticide products required to be
14          registered under subsection A.  And could you
15          read that for the Court, please?
16   A      Could you point which section?
17   Q      I'm sorry.  Right here, subsection A, if you
18          would read that whole section, please?
19   A      A person who distributes or sells a substance
20          claims, states or implies by labeling or
21          otherwise.
22   Q      Okay.  Thank you.  And I'd ask anyone who is
23          turning to this -- I'll turn to it for
24          Mr. Peter -- 40 CFR 168.22 A.  And I'll turn to
25          that page for you.  First I'd ask you, if you
0656
 1          could please, just read the title of the section
 2          under 40 CFR 168.22?
 3   A      Advertising of unregistered pesticides,
 4          unregistered uses of registered pesticides and
 5          FIFRA Section 24 C registrations.
 6   Q      Okay.  Thank you.  And then if you could read to
 7          the Court the last sentence in this paragraph,
 8          starting with EPA?
 9   A      3, EPA interprets these provisions as extending
10          to advertisements in any advertising medium to
11          which pesticide users or the general public have
12          access.
13   Q      Okay.  Thank you.  Do you have a better
14          understanding now, Mr. Peter, of what labeling
15          means under FIFRA?
16   A      In regard to pesticides, I do.
17   Q      With regard to pesticides.  Do you understand
18          that that means the advertising material as well,
19          such as the written material you saw yesterday?
20   A      With regard to pesticides.
21   Q      Okay.  And do you understand that means marketing
22          materials as well?
23   A      With regard to pesticides.
24   Q      And do you understand it also means any internet
25          claims as well?
0657
 1   A      With regard to pesticides.
 2   Q      And any claims that might be made by your
 3          salespeople, do you understand that's what it
 4          means as well?
 5   A      I have been made to understand that through this
 6          hearing.
 7   Q      Now, you testified that you were contacted by NSF
 8          about the labeling on your products, correct?
 9   A      Correct.
10   Q      At that time, did you try to understand what
11          labeling meant in the context of U.S. EPA?
12   A      No.
13   Q      No.  Okay.  They approached you.  You weren't
14          sure.  So I'm going to ask you to turn to
15          Complainant's Exhibit 36, please.  Complainant's
16          Exhibit 36.  I'll direct you to EPA number 755,
17          Paragraph 18.
18   A      755?
19   Q      Yes.
20                      MS. O'MEARA:  May I approach the
21          witness, Your Honor?
22                      JUDGE GUNNING:  Yes.
23                      MS. O'MEARA:  Thank you.
24   BY MS. O'MEARA:
25   Q      Paragraph 18.  And if you -- would you just
0658
 1          review that first sentence, please?
 2   A      In 2003, NSF contacted Behnke and informed it
 3          that NSF considered that references to some
 4          antimicrobial properties of Micronox in
 5          association with products certified by NSF were
 6          improper.
 7   Q      Thank you.  That's good.  So now are you clear
 8          that it was 2003, not 2004 when NSF began to --
 9   A      Yes.
10   Q      -- throw up red flags for you?
11   A      Well, I was unclear whether it was 2003 or 2004.
12   Q      Okay.  I just want to make sure we're clear on
13          the date.
14   A      Right.
15   Q      And you said that you -- after they contacted you
16          in 2003 and told you that there was a concern,
17          they thought that your lubricants might be EPA --
18          need EPA registration, you said you met with
19          them, correct?
20   A      Correct.
21   Q      Or you discussed it with them.  Correct?
22   A      In 2003?
23   Q      Yes.
24   A      I don't recall having a discussion in 2003 with
25          them.
0659
 1   Q      Okay.  So after NSF asked -- told you, made you
 2          aware of the fact that you might be subject to
 3          FIFRA requirements under U.S. EPA in 2003, did
 4          you meet with them?
 5   A      I did not meet with them until 2005, and there
 6          was no mention of FIFRA from EPA at that point in
 7          time.
 8   Q      Okay.
 9   A      I mean, from NSF at that time.
10   Q      From NSF.
11   A      Correct.
12   Q      Okay.  But they told you they were concerned with
13          the labeling, right?
14   A      Correct.
15   Q      Okay.  And they said it was improper, the
16          labeling, that was their concern?
17   A      They had said it was improper on, it looks like,
18          several occasions before that, too.  So, yeah,
19          that was their concern.
20   Q      All right.  Did they tell you why they thought it
21          was improper?
22   A      They thought that the claims may --
23   Q      Well, without looking at that, Mr. Peter.  Or
24          maybe I can restate the question.  Did you ask
25          them why they thought it was improper?
0660
 1   A      I don't recall having that conversation.
 2   Q      Okay.  Thank you.  Did you ever at that time, in
 3          2003, try to talk to the EPA?
 4   A      No.
 5   Q      Okay.  I'm sorry.  I didn't hear you.
 6   A      No.
 7   Q      But your testimony was that was a red flag to
 8          you, and you said 2003 -- I mean, 2004, but we've
 9          clarified that it's 2003, that at this point this
10          was a red flag to you.  That was your testimony,
11          correct?
12   A      The word red flag?
13   Q      Yes.  You don't recall that?
14   A      No.
15   Q      You said at that time you began to do some
16          research, though, correct to determine what the
17          problem was?
18   A      We had done some research with the FDA guidelines
19          from the beginning.
20   Q      When did you start to do research with EPA
21          requirements?
22   A      We did not consider ourselves an EPA-regulated
23          product, so we did not do a lot of EPA research.
24   Q      You didn't do a lot of EPA --
25   A      We were governed by FDA, and continue to be
0661
 1          governed by FDA.
 2   Q      Okay.  The NSF program that certifies your
 3          lubricants, is it a nonfood -- is the program
 4          called Nonfood Compounds Registration Program?
 5   A      Perhaps that's what NSF called it, but that's a
 6          similar name to what USDA had for it, too.
 7   Q      And as part of that program, NSF refers to
 8          nonfood products, including lubricants that have
 9          incidental contact with food, correct?
10   A      That's how they've always been referred to.
11   Q      Okay.  I think it was in 2002 about when NSF
12          began to certify your lubricants under its
13          nonfood program, correct?
14   A      If not earlier.
15   Q      Okay.  Can you read Paragraph 17.  You have that
16          page open.  We're talking about labeling.  I want
17          to get some clarification.  So if you could read
18          Paragraph 17 into the record, please?
19   A      Subsequent to receiving the NSF certifications
20          and listing in the White Book, Behnke undertook
21          substantial advertising, both in print media and
22          on its web site, stating that the products were
23          NSF certified.  In addition, Behnke truthfully
24          stated in the media and on its web site that the
25          products contained the Micronox antimicrobial
0662
 1          additive.
 2   Q      Okay.  So you did start advertising back then,
 3          correct?
 4   A      Back then --
 5   Q      Back in, I think it said --
 6   A      There's no date reference in that paragraph.
 7   Q      Yes.  In Paragraph 16 it says, starting in 2002
 8          the label for the food-grade lubricants submitted
 9          to NSF for certification disclosed that the
10          lubricants contained the Micronox additive.  The
11          labels were submitted to NSF, and NSF knew from
12          2002 onward that Behnke Lubricants which -- that
13          the Behnke food-grade lubricants, which NSF
14          certified, contained the Micronox additive.
15                      Subsequent to receiving the NSF
16          certification, starting in 17, then you began the
17          advertising, correct?
18   A      Correct.
19   Q      Okay.  And at that time you advertised that they
20          controlled E. coli, Salmonella, and Listeria,
21          correct?
22   A      Correct.
23   Q      And in 2003 when NSF contacted you, did they ask
24          you to remove the references to Salmonella
25          Listeria and E. coli?
0663
 1   A      I believe so.  I don't know if I was the one they
 2          directly contacted or if it was Troy Paquette or
 3          Patty Riek.
 4   Q      Okay.
 5   A      But there were requests to remove references to
 6          those.
 7   Q      Okay.  But you're familiar with this lawsuit,
 8          right?  You probably reviewed it --
 9   A      Oh, sure.
10   Q      -- before it was filed?  Why don't you read
11          Paragraph 18, starting with the third sentence,
12          In 2002, for example.  Go ahead and read that
13          sentence.
14   A      In 2002, for example, it had approved the label
15          for a Behnke lubricant, BDF Gling-Lube, a product
16          NSF had certified which stated, enhanced with
17          Micronox for exceptional knockdown performance
18          against Salmonella, Listeria and E. coli, but in
19          2003 demanded that the label be changed to state
20          that the product contains Micronox to provide
21          antimicrobial protection for this product.
22          Behnke made the change demanded by NSF.
23   Q      Okay.  Thank you.  So they asked you to remove
24          the E. coli, Salmonella and Listeria at that
25          time?
0664
 1   A      Correct.
 2   Q      Okay.  And did you remove it from all your
 3          material?
 4   A      We removed it from the label that was submitted
 5          to NSF.
 6   Q      But not the advertising and the marketing?
 7   A      No.
 8   Q      Okay.  In early of 2005 is it correct that NSF
 9          asked you to remove from your web site and print
10          materials reference to Micronox having
11          antimicrobial properties in association with any
12          food-grade lubricants?
13   A      Yes.
14   Q      So they told you to take it out of your
15          advertising and your print materials, as well as
16          your labeling in 2005?
17   A      Yes.
18   Q      They did?  Okay.  At that time did you begin to
19          wonder why they did that?  Did you then look at
20          any EPA regulations to figure out if labeling
21          meant advertising and marketing?
22   A      We may have discussed it with Troy Paquette.  But
23          at that time, again, this is a nongovernment
24          organization ordering us around regarding their
25          registration process.
0665
 1   Q      Sure.  Oh, I totally understand.  Did you call
 2          the EPA?
 3   A      We did not feel our products were EPA products.
 4   Q      So you didn't call the EPA; is that correct?
 5   A      We did not call the EPA.
 6   Q      You did not seek any advice from them; is that
 7          correct?
 8   A      Nor did we receive a call from the EPA.
 9   Q      The question was, did you call the EPA?
10   A      I answered the question.  We did not call the
11          EPA.
12   Q      And I would appreciate if you would just answer
13          my questions.  Thank you.
14                      Could you please turn to EPA 756,
15          please, to Paragraph 21.  It's just another page
16          over.
17   A      Okay.
18   Q      Mr. Peter, could you read that paragraph out
19          loud?
20   A      NSF went further and demanded that Behnke seek
21          approval from the United States Environmental
22          Protection Agency to register the Micronox
23          product with the EPA as pesticide and to label
24          and identify the Micronox product as a pesticide.
25   Q      Did that prompt you to call the EPA and inquire?
0666
 1   A      No.  We still felt that we were an FDA product.
 2   Q      Did it prompt you to research the statute and
 3          regulations related to EPA just to make sure --
 4   A      Yes.
 5   Q      -- that you were just FDA?
 6   A      Yes.
 7   Q      You did?
 8   A      Yes.
 9   Q      Okay.  And did you do that personally?
10   A      Mr. Paquette did it.  I believe Mr. McIlnay
11          assisted us to a certain extent, and I did also.
12   Q      But ultimately you were responsible for whatever
13          the outcome was, correct?
14   A      Ultimately, I'm responsible.
15   Q      Okay.  Do you know if Mr. Paquette called the
16          EPA?
17   A      I do not know.
18   Q      Did you tell him to call the EPA?
19   A      I did not.
20   Q      Okay.  Now, you say that in response to NSF
21          requests you removed references to antimicrobial
22          properties that have Micronox from the web site
23          and the print materials; is that correct?  I'm
24          just asking.  I don't think the answer is in that
25          book.
0667
 1   A      No, we did not remove references to Micronox and
 2          antimicrobial from the print materials.  We
 3          removed them from the labels.
 4   Q      Okay.  I'm going to refer you to Paragraph 18,
 5          which is one page back.  Can you read -- I'll
 6          show you -- if I may approach the witness?
 7                      JUDGE GUNNING:  Yes.
 8   BY MS. O'MEARA:
 9   Q      -- the sentence.  Starting with, In early 2005,
10          would you please read that into the record?
11   A      In early 2005, NSF then demanded that Behnke
12          remove from its web site and print materials
13          certain references to Micronox having
14          antimicrobial properties, even though in 2003 it
15          had dictated to Behnke that that terminology be
16          used.  In response to this demand, Behnke removed
17          from its web site and print materials those
18          references to the antimicrobial properties of
19          Micronox in association with any food-grade
20          lubricant certified by NSF.  In NSF's --
21   Q      Thank you.  That's good.  So they asked you to
22          remove it from the advertising and the web site,
23          but you only removed it from the labeling; is
24          that correct?
25   A      Our document manager did some removing that I may
0668
 1          not have been aware of, but there was removing of
 2          certain levels.  You have to understand this went
 3          through a metamorphosis of what they were saying
 4          was allowed.  And so there were levels that were
 5          removed to satisfy the requests ongoing.
 6   Q      So, but I'm just trying to understand what this
 7          document says.  It says that you removed them
 8          because they requested it.  Did you remove it
 9          from advertising and the web site?
10   A      By 2005 I think most of it had been removed.
11   Q      And that's antimicrobial claims and E. Coli, and
12          Salmonella and Listeria?
13   A      Likely references to the pathogens.
14   Q      Okay.
15   A      Again, the fact that we said Micronox or
16          antimicrobial, we did not feel put us under FIFRA
17          because of our FDA --
18   Q      So you didn't remove references to antimicrobial
19          properties and the word Micronox, correct?
20   A      I don't believe we did across the board.
21   Q      But in this document that you reviewed and then
22          filed a lawsuit, it says, in response to this
23          demand, Behnke removed from its web site and
24          print materials those references to antimicrobial
25          properties of Micronox in association with any
0669
 1          food-grade lubricants.  Can you explain what that
 2          means then?  It says you removed it.  Is that
 3          incorrect, or are you stating something incorrect
 4          right now?
 5   A      No.  But properties, we may have interpreted
 6          properties to mean references to the pathogens
 7          that we were aimed at.
 8   Q      Okay.  You may have.  Okay.  You said Behnke just
 9          didn't want to register the product with EPA,
10          correct, the lubricants with EPA?
11   A      We wanted to stay out of that bailiwick.
12   Q      Okay.  And was this because EPA controls and
13          restricts the use of these registered products?
14          Is that why you didn't want EPA to have
15          jurisdiction over you?
16   A      We didn't want our products associated with EPA
17          pesticides, our food-grade products.
18   Q      If you could listen to my question and see if
19          maybe we can answer that one.  Did you not want
20          EPA to have jurisdiction over you because EPA
21          controls and restricts the use of your registered
22          product -- of any registered product?  Did you
23          not want EPA involvement because they control and
24          restrict -- would control and restrict your
25          lubricant?
0670
 1   A      Decisions were financial in nature because --
 2   Q      Could you try to answer the question?
 3   A      The question is rather obtuse.
 4   Q      Okay.  Well, why --
 5                      JUDGE GUNNING:  There's a double
 6          negative.  Perhaps if you could --
 7   BY MS. O'MEARA:
 8   Q      Why don't I just refer you to EPA 756,
 9          Paragraph 22.
10                      JUDGE GUNNING:  What was the number
11          again?
12                      MS. O'MEARA:  EPA 756, and
13          Paragraph 22.  Still in the same NSF document.
14                      JUDGE GUNNING:  Okay.
15   BY MS. O'MEARA:
16   Q      Actually, why don't you -- can you read
17          Paragraph 22, Mr. Peter?
18   A      Certainly.
19   Q      Thank you.
20   A      Were Behnke to identify the Micronox product as a
21          pesticide, the Micronox product would no longer
22          be accepted by producers and packager of food
23          products intended for human consumption.  This is
24          so because of EPA restrictions and controls on
25          the use of pesticides by such producers and
0671
 1          packagers.  If Behnke were to identify the
 2          Micronox product as a pesticide, as demanded by
 3          NSF, Behnke would lose its competitive advantage
 4          provided by the Micronox product.  Such a loss
 5          would be to the direct benefit of Behnke's
 6          competitors in the food-grade lubricant market.
 7   Q      Okay.  Thank you.  Now, does that help you answer
 8          the question that I asked you?  Is it that you
 9          did not want EPA involved because they restrict
10          how your lubricants are to be used?
11   A      No.
12   Q      Okay.  But that's what it states in that
13          paragraph, correct?
14                      MR. MCILNAY:  States in one sentence?
15   BY MS. O'MEARA:
16   Q      In one sentence.  You're right that it is in one
17          sentence in that paragraph.  Let me read it to
18          you.  I have to read the first sentence just to
19          give it context.  Were Behnke to identify the
20          Micronox product as a pesticide, the Micronox
21          product would no longer be accepted by producers
22          and packagers of food products intended for human
23          consumption.  This is so because of EPA
24          restrictions and controls on the use of
25          pesticides by such producers and packagers.
0672
 1                      Okay.  Why don't we move on.  So you
 2          didn't want to lose your competitive edge over
 3          your competitors, correct?
 4   A      Correct.
 5   Q      And you perceived the fact that EPA would be
 6          involved as a loss of your competitive edge?
 7   A      Correct.
 8   Q      Now, can your competitors -- are your competitors
 9          making any of these kind of claims?  Because you
10          said earlier that they also have antimicrobial
11          properties in their lubricants, right?
12   A      Correct.
13   Q      Are any of your competitors making these types of
14          claims, other than MICROL, that you know of?
15   A      They have in the past.
16   Q      Okay.  Are any of your competitors making these
17          types of claims right now?
18   A      I think some are.
19   Q      Some are.  Okay.  The ones that aren't, they're
20          following the rules, and they understand the EPA
21          rules; isn't that correct?
22                      MR. MCILNAY:  Objection, calls for
23          speculation.
24                      JUDGE GUNNING:  Sustained.
25                      MS. O'MEARA:  Okay.
0673
 1   BY MS. O'MEARA:
 2   Q      Isn't it true that even though NSF told you that
 3          you should seek registration with EPA, you still
 4          didn't contact EPA; is that correct?
 5   A      That's correct.
 6   Q      And, in fact, you waited until we contacted you
 7          in 2000 -- in December of 2006; isn't that
 8          correct?
 9   A      Correct.
10   Q      Was that a business decision?
11   A      Yes.
12   Q      Okay.  Were you just waiting for EPA to come
13          contact you?
14   A      I was hoping that eventuality would not take
15          place.
16   Q      But you were willing to take that risk, correct?
17   A      I was willing to take that risk.
18   Q      And that eventuality occurred on August 3, 2006,
19          when Mr. Saatkamp showed up at your facility; is
20          that correct?
21   A      No.
22   Q      It didn't.  It wasn't until December 22, 2006?
23   A      Correct.
24   Q      Okay.  So when Mr. Saatkamp came to your facility
25          and spoke with you, as well as Mr. Paquette and
0674
 1          Ms. Riek, I believe, and told you that they were
 2          looking at your lubricants to see if they were in
 3          compliance with EPA, did you call EPA at that
 4          time?
 5   A      No.
 6   Q      No.  So you were still making a business decision
 7          not to make that phone call; is that correct?
 8   A      Correct.
 9   Q      Okay.  Now, there was some reference to the fact
10          that you stopped using even the trade name
11          Micronox.  Have you stopped using the trade name
12          Micronox?
13   A      No, we have not.
14   Q      Okay.  But in the -- do you approve all the
15          documents that Mr. McIlnay filed with the Court
16          with respect to this lawsuit?
17   A      That's a pretty general statement.  I don't know
18          that I reviewed every document Mr. McIlnay
19          submitted.
20   Q      Okay.
21                      MR. MCILNAY:  It also assumes
22          Mr. McIlnay filed it.
23                      MS. O'MEARA:  I can show you that he
24          did.
25                      JUDGE GUNNING:  Okay.  How about we
0675
 1          stay with the cross.
 2                      MS. O'MEARA:  Okay.
 3   BY MS. O'MEARA:
 4   Q      Are you aware that Mr. McIlnay stated in one of
 5          the documents in this case that the words
 6          Micronox were removed entirely?
 7   A      In what context?
 8   Q      In the context of your labeling, advertising, and
 9          marketing?
10                      MR. MCILNAY:  I'm sorry.  Maybe I
11          misunderstood.  We're talking about the case
12          we're here on today?
13                      MS. O'MEARA:  Yes.
14   BY MS. O'MEARA:
15   Q      It's in Behnke's response to the motion for
16          accelerated decision.  Are you aware that Behnke
17          states in that response that you removed the word
18          Micronox from all of your labeling, advertising,
19          and marketing in 2007?
20   A      The word, Micronox, no, I'm not aware of that.
21   Q      Okay.  Are you aware that it also states that you
22          only used the word Micronox in one place in 2006.
23          And perhaps that means one advertising media.
24          I'm not sure.  Are you aware of that?
25   A      No.
0676
 1   Q      Now, you said that back in -- let's just get this
 2          clear.  When did you --
 3                      MR. MCILNAY:  Was there an answer to
 4          the last question?  I didn't hear it.
 5                      THE WITNESS:  I said, no.
 6                      MR. MCILNAY:  Okay.
 7   BY MS. O'MEARA:
 8   Q      When did you remove the words E. coli,
 9          Salmonella, and Listeria?  Was that back in 2003
10          when NSF asked you to?
11   A      I think so.
12   Q      You think so?
13   A      Again, I didn't do the direct removal of it,
14          so --
15   Q      But you were ultimately responsible for it, as
16          you previously stated, right?
17   A      Right.
18   Q      Okay.  And you saw our exhibits that we went
19          through in the last couple of days, and you saw
20          those words were in those exhibits as well,
21          E. coli, Salmonella, and Listeria?
22   A      Correct.
23   Q      And we found them at the facility in 2006, at
24          Menomonee Falls facility, Behnke facility in 2006
25          in the literature, E. coli, Salmonella and
0677
 1          Listeria, correct?
 2   A      In literature, you may have found it in
 3          literature.
 4   Q      In the advertising?
 5   A      In literature.
 6   Q      All right.  After EPA met with you and told you
 7          that the public health claims, the E. coli,
 8          Salmonella and Listeria were problematic, did you
 9          remove it?
10   A      We made an attempt to.
11   Q      But you're not sure if you removed all of it; is
12          that what you're saying?
13   A      I didn't review every document.
14   Q      Okay.  And you heard Mr. Bonace testify that he
15          found it as recent as this Monday, E. coli,
16          Listeria and Salmonella?
17   A      Right.
18   Q      So -- and ultimately, again, you're responsible
19          for Behnke, right?
20   A      Correct.
21   Q      And so it was still on web sites, correct?
22   A      He pointed it out.  Yes, it was.
23   Q      Can you turn to Respondent's Exhibit 54, please.
24          Mr. Peter, I was referring to Respondent's
25          Exhibit 54.
0678
 1   A      Oh Respondent's exhibit.  I'm sorry.
 2   Q      Let me get this out of your way a little bit.
 3   A      Thank you.
 4   Q      You're welcome.  And can you turn to Page 14 of
 5          that exhibit.  I don't have the Bates version
 6          with me right now.
 7                      MR. MCILNAY:  Which document?
 8                      MS. O'MEARA:  Respondent Exhibit 54,
 9          Page 14.
10   BY MS. O'MEARA:
11   Q      And this is one of the documents you submitted,
12          Behnke submitted for that lawsuit, correct?
13   A      Correct.
14   Q      Okay.  And is there still reference to E. coli
15          and Salmonella and Listeria in this document?
16   A      Yes, there is.
17   Q      Okay.  And can you turn to Respondent's Exhibit
18          65.  And can you tell the Court what that is,
19          please?
20   A      65?
21   Q      Yes.
22   A      It looks like a declaration of Tracey Huebner.
23   Q      Okay.  And attached to that there is some
24          literature, correct?
25   A      Correct.
0679
 1   Q      And let's just turn to the one that refers to the
 2          advertising that was being done in 2007.
 3   A      Uh-huh.
 4   Q      Is the word Micronox still being used in 2007
 5          there in some of the advertising?
 6   A      Yes.
 7                      MR. MCILNAY:  May I -- where it
 8          starts with the exhibit sticker C, is that the
 9          page you're on?
10                      MS. O'MEARA:  I'm on my own -- yes,
11          exhibit sticker C.
12                      MR. MCILNAY:  So that's Respondent
13          00172.
14                      MS. O'MEARA:  Thank you.  The version
15          that I have is -- I can't read it, but I have my
16          own photocopied version without the Bates numbers
17          on it.
18   BY MS. O'MEARA:
19   Q      So is there anywhere in there that it still
20          refers to the word Micronox?
21   A      Which document are we talking about?
22   Q      It starts with Exhibit C.
23   A      I don't see any reference to Micronox.
24   Q      Okay.  I'll show you a version that's readable.
25          I think a lot of them are blacked out, or
0680
 1          overphotocopied.
 2                      Now, just so I'm clear, this Exhibit
 3          C represents the advertising and labeling -- or
 4          actually just the advertising and marketing
 5          relating to 2007; is that correct?
 6   A      I don't know the extent of Exhibit C.
 7   Q      Okay.  I'm going to direct your attention to
 8          Paragraph 6 of the declaration, which states,
 9          Attached hereto as Exhibit C is schedule for all
10          media placements for Behnke advertising during
11          the calendar year 20007.  Okay?  And, Attached to
12          the schedule are copies of the advertisements
13          identified in the 2007 schedule.
14                      So, now turning you to Exhibit C,
15          I'll just show you the paper, since I don't know
16          if you can read yours there.  This one is marked
17          Xterminate bacteria.  Let me see if I can help
18          you find it, we can find what page number it is.
19          It's Respondent 00181.
20                      MS. O'MEARA:  Your Honor I have a
21          copy that is legible.  I think yours is probably
22          very dark.
23                      JUDGE GUNNING:  Right.
24                      MS. O'MEARA:  I had to pull it from
25          the actual filing that we received when the
0681
 1          response to the motion for accelerated decision
 2          was filed.
 3                      MR. MCILNAY:  We're looking for
 4          another copy now.
 5                      MS. O'MEARA:  Okay.
 6   BY MS. O'MEARA:
 7   Q      Mr. Peter, if you could just read all of the
 8          literature that's stated below Xterminate
 9          bacteria?
10   A      Was your question whether this ran in 2007?
11   Q      Yes.
12   A      Initially, it did not.
13   Q      It did not.  But in the declaration it states --
14   A      They may be misarranged, but this ad has not run
15          for years.
16   Q      Okay.  But that's what it says in the
17          declaration; is that correct?
18   A      It's in error.
19   Q      Okay.
20                      JUDGE GUNNING:  Now, for completeness
21          of the record, I would like to have that exhibit
22          attached to this exhibit, at least for the court
23          reporter.
24                      MS. O'MEARA:  Okay.
25                      MR. MCILNAY:  We could probably even
0682
 1          supply -- substitute the entire document.  The
 2          Huebner declaration that is being referred to was
 3          filed as well in -- as part of Respondent's
 4          response to the motion for an accelerated
 5          decision.  I'm looking at that document now.
 6          It's a much, much cleaner, better copy.  And if
 7          the Court would like, we could substitute that
 8          whole document.
 9                      JUDGE GUNNING:  Whatever -- EPA, what
10          is your preference?
11                      MS. O'MEARA:  That would be fine.
12                      JUDGE GUNNING:  Okay.
13                      MS. O'MEARA:  Happy to help do that,
14          make sure it's correct.
15                      MR. MCILNAY:  Okay.  We don't need to
16          do it now.
17                      MS. O'MEARA:  No, no, no.  I
18          understand that.
19                      JUDGE GUNNING:  Yes.
20                      MS. O'MEARA:  So we can make sure it
21          is in fact what it is.
22   BY MS. O'MEARA:
23   Q      But this does talk about Xterminate bacteria,
24          correct?
25   A      Yes.
0683
 1   Q      And it was represented that it was in the
 2          advertising in the year 2007, correct?
 3   A      It was represented as such, but that's incorrect.
 4   Q      And it talks about E. coli, Salmonella, and
 5          Listeria, correct?
 6   A      Yes.
 7   Q      And the next page -- two pages later -- probably
 8          you can't see it, so I'll show it to you --
 9          that's also a document that is in Complainant's
10          Exhibit C?
11   A      Yes.
12   Q      And it talk about E. Coli, Salmonella and
13          Listeria as well?
14   A      Yes.
15   Q      And Micronox?
16   A      Yes.
17   Q      Is this incorrectly placed in there as well?
18   A      Yes.
19                      JUDGE GUNNING:  Now, what document is
20          that?  What's it look like?
21                      MS. O'MEARA:  It's two pages later,
22          Your Honor.
23                      JUDGE GUNNING:  Does it say Page 40.
24                      MS. O'MEARA:  Yes.
25                      JUDGE GUNNING:  And it's dated
0684
 1          January, 2005.
 2                      MS. O'MEARA:  Yes.
 3                      JUDGE GUNNING:  Okay.  So it's my
 4          understanding that after Respondent gets a
 5          cleaner copy, we will substitute that for that
 6          currently in the record.  Okay.
 7   BY MS. O'MEARA:
 8   Q      Now, Exhibit B in that document, you probably
 9          can't read it as well.
10                      MS. O'MEARA:  Perhaps Counsel can
11          help me.
12                      MR. MCILNAY:  If it's helpful -- I
13          know you're not looking at the numbered ones --
14          if it's helpful --
15                      MS. O'MEARA:  It that one -- what is
16          that one right there?
17                      MR. MCILNAY:  That was the last one
18          before Exhibit B.
19                      JUDGE GUNNING:  Bates Stamp 166?
20                      MS. O'MEARA:  Your Honor, if I may
21          approach, I can show you what it looks like.
22                      MR. MCILNAY:  Yes.
23                      MS. O'MEARA:  Xperience counts.
24                      JUDGE GUNNING:  Okay.
25                      MR. MCILNAY:  It is Bates
0685
 1          stamped 166.
 2   BY MS. O'MEARA:
 3   Q      If you could go to Bates Stamp 166 then, and I'm
 4          going to show you a copy that is actually
 5          legible, but I'm going to read to you before I
 6          show it to you.  It says at the very bottom, JAX
 7          Micronox antimicrobial additive, the only one to
 8          provide significant microbial knockdown
 9          performance in food-grade lubricants.  Is that
10          something that ran in 2006?
11   A      I believe maybe 2005.  It's looks like there was
12          a similar one to that here that said in '06, took
13          off Micronox.
14   Q      Oh, I see.  So this is not representative of what
15          happened in 2006, even though it --
16   A      It's probably '05.
17   Q      -- even though it states it's in 2006.  Okay.
18                      MR. MCILNAY:  Well, I object, Your
19          Honor.  That wasn't his testimony.
20                      Could you read back what his answer
21          was?
22                      (The answer was read.)
23                      MR. MCILNAY:  Okay.  I'll pursue it
24          on redirect.
25   
0686
 1   BY MS. O'MEARA:
 2   Q      Now, let's talk about this meeting you went to in
 3          Florida.  Do you remember talking about that?
 4   A      Yes.
 5   Q      Okay.  What was the meeting for?
 6   A      It was a trade group, annual meeting.
 7   Q      What was your purpose of that meeting when you
 8          scheduled to go there?
 9   A      My purpose was, knowing that I had conflicting
10          opinions with NSF on registration, I wanted to
11          hear what they were going to say and present to
12          other members of our trade association.
13   Q      Who was presenting at that meeting?
14   A      Dr. Yano was presenting, Mr. Edwards was
15          presenting.
16   Q      Okay.  Did you set up a meeting with them ahead
17          of time?
18   A      No.
19   Q      How many people were at that meeting, do you
20          recall?
21   A      Attending that particular presentation?
22   Q      Yes.
23   A      It was not heavily attended.  There may have been
24          30 attendees.
25   Q      Okay.  Was it a full room?
0687
 1   A      No.
 2   Q      Okay.  And did you listen to Mr. Edwards'
 3          presentation?
 4   A      Yes.
 5   Q      Did he know you were in the audience?
 6   A      I had not met Mr. Edwards before that.
 7   Q      Okay.  And did you listen to Mr. Yano's
 8          presentation?
 9   A      Yes.
10   Q      Did he know you were in the audience?
11   A      Yes.
12   Q      Okay.  Had you met him before?
13   A      May of 2005 in Ann Arbor.
14   Q      Was that the only time you met him?
15   A      Mr. Yano?
16   Q      Yes.
17   A      To the best of my recollection.
18   Q      Okay.
19   A      Dr. Yano.
20   Q      Now, after the meeting -- by the way, what was
21          Mr. Edwards talking about?  Do you recall?
22   A      Well, I would equate it to a sales presentation
23          for -- trying to get registrations for treated
24          articles.
25   Q      Okay.  So he was talking about the treated
0688
 1          article exemption.  You're aware he doesn't work
 2          on any sort of a commission to get people to
 3          register?
 4   A      That's what was rather alarming.
 5                      MR. MCILNAY:  I'm sorry.  What?
 6                      THE WITNESS:  I said, that's what was
 7          alarming about it.
 8   BY MS. O'MEARA:
 9   Q      And he didn't require you to come to that
10          meeting; did he?
11   A      No, but of all --
12   Q      If you could try to answer --
13                      MS. O'MEARA:  Your Honor, if I could
14          ask --
15                      THE WITNESS:  Okay.  No, he did not.
16                      MS. O'MEARA:  If I could ask you to
17          direct the witness to please answer my questions,
18          that would be helpful.
19                      JUDGE GUNNING:  If you can just limit
20          your answer, and then anything else can be picked
21          up on redirect.
22   BY MS. O'MEARA:
23   Q      Okay.  So he didn't require you to come to that
24          meeting, did he?
25   A      No.
0689
 1   Q      And did you talk to any other people in the room?
 2   A      Maybe just a social greeting.
 3   Q      Okay.  But it's reasonable to expect that all
 4          those people were interested in the treated
 5          article exemption, correct?
 6   A      No, it's -- no.
 7   Q      Yes or no?
 8   A      No.
 9   Q      No.  Oh, okay.  Were you interested in the
10          treated article exemption that day?
11   A      I was interested in what Mr. Edwards and Dr. Yano
12          were going to have to say.
13   Q      Were you hoping to hear something so that you
14          wouldn't have to register your product?
15   A      No.
16   Q      So you spoke with Mr. Yano and Mr. Edwards
17          afterwards; is that correct?
18   A      I spoke with Dr. Yano and Mr. Edwards afterwards.
19   Q      I apologize, Dr. Yano.  Did a lot of people go up
20          and talk to him afterwards?  I would imagine they
21          did.
22   A      No.
23   Q      Were you the only one?
24   A      No.
25   Q      How many others, would you say?
0690
 1   A      A handful.
 2   Q      Okay.  So about 20 percent of the people, right,
 3          roughly?
 4   A      Roughly three or four.
 5   Q      I'm sorry.  I thought a handful was five.  Okay.
 6          Did you have to wait in line to talk to him?
 7   A      I don't recall.  There was a typical gathering
 8          after the presentation.
 9   Q      Okay.  Were people talking to Mr. Edwards in one
10          area and Dr. Yano in another?
11   A      I don't recall.
12   Q      What was Dr. Yano presenting about; do you recall
13          that?
14   A      Yes, they were trying to sell a program of
15          registration of antimicrobial products.
16   Q      Okay.  But you don't recall that when you spoke
17          with Dr. Yano and Mr. Edwards if they were in
18          different places -- how did you get them
19          together?  Do you remember that?
20   A      Outside the meeting room we gathered, and
21          Dr. Yano introduced me to Mr. Edwards and --
22   Q      Okay.  Was anybody else present?
23   A      I believe there was another person from NSF
24          present with Dr. Yano.
25   Q      Were any of the participants of the meeting
0691
 1          present at that time?
 2   A      No.
 3   Q      Okay.  Did you show Mr. Edwards at that time --
 4          did you introduce yourself?
 5   A      Yes.
 6   Q      There were a lot of people that day, correct?
 7   A      Correct.
 8   Q      Yeah.  Did you show Mr. Edwards any of your
 9          literature that day?
10   A      No.
11   Q      Any of your marketing claims?
12   A      No.
13   Q      Any of your internet web sites?
14   A      No.
15   Q      Any of your labeling?
16   A      No.
17   Q      Did you try to set up a meeting with him to do
18          that?
19   A      No.
20   Q      Because it was a business decision, correct?
21   A      Correct.  And because I had none of those
22          materials with me.
23   Q      Okay.  But you knew you were going there to talk
24          to Dr. Yano and Mr. Edwards to find out about the
25          treated article exemption, right?
0692
 1   A      I did not know I was going there to talk to them.
 2          I know I was going there to listen to what they
 3          had to say.
 4   Q      Did you go there to make sure you were in
 5          compliance with FIFRA or if you were subject to
 6          FIFRA?
 7   A      No.  I was going there to understand their
 8          interpretation of FIFRA and trying --
 9   Q      As it applies to you?
10   A      -- and trying to fold it into our understanding
11          of the FDA regulations.
12   Q      Okay.  But you didn't bring any of the material
13          to seek any advice from Mr. Edwards, correct?
14   A      No.
15   Q      Did you try to set up a meeting with him later
16          on, perhaps when he got back to the office so you
17          could provide him the materials?
18   A      No.
19   Q      Did you ask him specifically if you should
20          register your product?
21   A      I did not ask.  He offered his opinion.
22   Q      But you didn't give him all the information he
23          needed, correct?
24   A      I didn't give him information, no.
25                      MR. MCILNAY:  I didn't hear.  I'm
0693
 1          sorry.  Could you speak up?
 2                      JUDGE GUNNING:  Do you want that read
 3          back?
 4                      MR. MCILNAY:  Yes, please.
 5                      JUDGE GUNNING:  Just the answer?
 6                      MR. MCILNAY:  The answer is fine.
 7                      (The answer was read.)
 8                      MR. MCILNAY:  Thank you.
 9   BY MS. O'MEARA:
10   Q      And you didn't send him any information regarding
11          labeling, advertising or marketing, correct?
12   A      No.
13   Q      Another business decision, right?
14   A      Correct.
15   Q      Did you continue to do research after that when
16          you got back to the office with Mr. Paquette?
17   A      We were doing ongoing research.
18   Q      With respect to EPA?
19   A      With respect to our labeling.
20   Q      With respect to EPA?
21   A      EPA documents were in and among the FDA documents
22          that we had.
23   Q      Did you do any research to determine if you had
24          to register your products under FIFRA with EPA?
25   A      We had done extensive research to determine
0694
 1          whether we had to register our products under
 2          FIFRA with EPA.  It was ongoing.
 3   Q      Now, you said, when Mr. McIlnay asked you about
 4          what you did to address the labeling concerns,
 5          that had been red flagged for you by NSF after
 6          this meeting, you said you felt that EPA was
 7          making FDA -- I don't remember exactly -- but
 8          making decisions about FDA products that were
 9          arbitrary in manner, correct?
10   A      I may have.
11   Q      Okay.  Was that based on your conversation with
12          Mr. Edwards?  Because you were talking about it
13          right after you talked about the meeting, or
14          right when you were talking about the meeting.
15   A      I don't believe so.
16   Q      So what did you believe -- how did you believe
17          EPA was arbitrary?  Based on what conversation
18          did you determine that we were being arbitrary.
19          Was there a conversation with EPA that led you to
20          that conclusion that we were arbitrary?
21   A      It likely was the conversation that Dr.
22          Edwards -- I mean, that Mr. Edwards had with
23          Dr. Yano down there.
24   Q      So you didn't like what he had to say is what I
25          can glean from that, correct?
0695
 1   A      I disagreed with what he had to say.
 2   Q      I see.  And you said it was a business decision
 3          to file the litigation you did against NSF,
 4          correct?
 5   A      Correct.
 6   Q      And it was a business decision then to ignore
 7          EPA; is that correct?
 8   A      EPA had not contacted us yet.
 9   Q      But you hadn't contacted them, correct?
10   A      Correct.
11   Q      And you knew that there was some issue, correct?
12   A      Not from EPA, I did not.
13   Q      NSF -- didn't you just say that NSF told you that
14          you might have to register your EPA lubricants,
15          correct?
16   A      EPA may have had an issue with NSF, but to the
17          best of my knowledge, EPA at that point had no
18          issue with us.
19   Q      I understand that EPA didn't contact you.  What
20          I'm trying to find out is, did you have some
21          knowledge through NSF that perhaps EPA would have
22          jurisdiction over your lubricants?
23   A      We --
24   Q      Yes or no?
25   A      If you're leading me with that question, I can't
0696
 1          answer it the way you asked it.
 2   Q      It's a yes or no question.
 3   A      It's not a yes or no question.
 4                      JUDGE GUNNING:  Okay.  I think at
 5          this stage we have addressed the issue, and
 6          please move on.
 7                      MS. O'MEARA:  Okay.
 8   BY MS. O'MEARA:
 9   Q      Do you understand what the treated article
10          exemption is?
11   A      More or less.
12   Q      Do you understand if you comply with the treated
13          article exemption, you're not required to put a
14          logo or an insignia, as you state, on the product
15          that states the EPA establishment number or the
16          EPA registration number?
17   A      If that's the case, I'm now aware of it.
18   Q      You weren't aware of it before?
19   A      I may or may not have been.
20   Q      But you did some research relating to this issue,
21          correct?
22   A      Some.
23   Q      Now, on August 11, 2006, you met with
24          Mr. Saatkamp, correct, when he came to the
25          Menomonee Falls facility?
0697
 1   A      Correct.
 2   Q      And that was the Wisconsin Department of
 3          Agriculture inspector?
 4   A      Correct.
 5   Q      Did you understand that he was doing an
 6          inspection on behalf of EPA?
 7   A      I understand he was picking up some materials on
 8          behalf of EPA.
 9   Q      Did you ask him anything about your labeling,
10          advertising, and marketing?
11   A      No.
12   Q      Another business decision?
13   A      I didn't think he had anything to offer.  So,
14          yes.
15   Q      Yes.  Was that the answer, yes?
16   A      Yes.
17   Q      After Mr. Saatkamp came on August 11th, the
18          question that Mr. McIlnay asked you was, did
19          anyone contact you from the EPA after that
20          inspection.  Did anyone contact you from EPA?  I
21          think your answer was, no.  I'm just trying to
22          make sure I understood that.
23   A      No.  The first contact was the intent to file
24          a --
25   Q      Did you contact the EPA at that point?
0698
 1   A      Well, I contacted Mr. McIlnay, and we responded
 2          to the letter.
 3   Q      Okay.  So you waited for our letter to come,
 4          correct?
 5   A      I didn't anticipate a letter coming, but it
 6          arrived.
 7   Q      You were hoping it wouldn't come, correct?
 8   A      Nobody wants the EPA to come calling.
 9   Q      All right.  It was a daunting letter, I imagine,
10          yes, to get the EPA sending you a letter; is that
11          correct?
12   A      I'm not easily daunted.
13   Q      Okay.  But as you said, you don't want EPA coming
14          to call on you, correct?
15   A      Correct.
16   Q      And it was at that point then you contacted EPA,
17          correct?
18   A      Correct.
19   Q      And we made you aware at our meeting in February
20          of 2007 that labeling means more than just the
21          physical label on the container.  It means the
22          advertising and the marketing and the claims,
23          correct?
24   A      Correct.
25   Q      You mentioned earlier that NSF asked you to
0699
 1          change your labels, as you understood it, labels.
 2          And you said something about the fact that you
 3          changed your labels to protect the preservative
 4          at that time, as opposed to protect the food; is
 5          that correct?
 6                      MR. MCILNAY:  Protect the lubricant.
 7                      THE WITNESS:  Preserve the lubricant.
 8   BY MS. O'MEARA:
 9   Q      I'm sorry.  Preserve the lubricant, as opposed to
10          protect the food; is that correct?
11   A      Correct.
12   Q      Do you have any labels in the record that show
13          that there were, at any time, any advertising
14          that stated that the lubricant with the Micronox
15          antimicrobial technology was intended to protect
16          any food, any processed food?
17   A      I don't know.
18   Q      You don't know if there is any such label?
19   A      I don't know.
20   Q      Because you said something to the effect that you
21          took NSF's advice, and it seemed to imply that
22          you had labeling claims that were different
23          before.  Is that -- am I assuming an incorrect
24          assumption?  Did you have different labeling
25          claims?
0700
 1   A      We did change labels, under the threat of
 2          revocation of our letters.
 3   Q      Did you change them from claims that it was
 4          effective against E. coli, Salmonella, and
 5          Listeria?
 6   A      We tried to change them to comply with what they
 7          were requesting.
 8                      MR. MCILNAY:  Mr. Peter, answer her
 9          question, please.
10                      THE WITNESS:  The question again?
11   BY MS. O'MEARA:
12   Q      Did you change the labels to remove claims that
13          it was effective against E. coli, Salmonella, and
14          Listeria?
15   A      To the best of my knowledge, that was one of the
16          claims they wanted removed.
17   Q      Were there any claims, prior to changing them
18          because NSF asked you to, that said that the
19          lubricant's Micronox antimicrobial technology was
20          targeting food, processed food?
21   A      I don't know.  Possibly, but I do not know.
22   Q      But we don't have any of those today, correct?
23   A      No, but we don't target food.  We target food
24          pathogens.  You target food pathogens, not food.
25          Okay.
0701
 1   Q      And you're aware that the general public
 2          understands that E. coli, Salmonella, and
 3          Listeria are food pathogens, correct?
 4   A      There's been enough publicity.
 5   Q      Yeah.  And you put these types of claims in there
 6          to distinguish your lubricants from your
 7          competitor's, correct?
 8   A      Correct.
 9   Q      And you thought that that would actually help
10          with your sales, correct?
11   A      Correct.
12   Q      Buy yet you are concerned that if your lubricants
13          are called pesticides, that that will change your
14          sales, make them decrease; is that correct?
15   A      Correct.
16   Q      And wasn't the testimony that Jennie-O -- first
17          of all, let me just clarify one thing about
18          Jennie-O.  You testified that Jennie-O -- that
19          somebody came to Jennie-O, and Jennie-O then
20          switched their use of your lubricants to Petro
21          Canada's Microl lubricant, correct?
22   A      That's what I've been told, correct.
23   Q      That's what you've been told?
24   A      Correct.
25   Q      Okay.  And I think the question was when
0702
 1          Mr. Bonace did all the investigations, are you
 2          aware that Mr. Bonace did not come to Jennie-O
 3          Turkey Store?
 4   A      Yes.
 5   Q      It was a different inspector, in fact, not one
 6          from U.S. EPA.  Are you aware of that?
 7   A      Yes.
 8   Q      Okay.  Let's go back to Jennie-O then.  Your
 9          declaration states that Jennie-O switched from
10          your product from Micronox to MICROL.  Petro
11          Canada's product, correct?
12   A      Neither of those are products.
13   Q      I'm sorry.  To the lubricant, your lubricant
14          containing Micronox, and they switched to Petro
15          Canada's lubricant, which is also food-grade
16          lubricant, containing MICROL, correct?
17                      MR. MCILNAY:  I'm going to object.
18                      THE WITNESS:  Correct.
19                      MR. MCILNAY:  Well, you've answered.
20          The record will show what his direct testimony
21          was.  I don't believe there was any preference to
22          Petro Canada and MICROL on direct, but the record
23          will show.
24   BY MS. O'MEARA:
25   Q      I can help clarify the record.  Does your
0703
 1          declaration state that as result of EPA's
 2          investigation Jennie-O started to use -- switched
 3          over to Petro Canada's MICROL product instead of
 4          Behnke's lubricants with Micronox in it?
 5   A      I don't know if those are the exact words.
 6   Q      I imagine they're not.  But just generally
 7          speaking, is that what your declaration states.
 8   A      Generally speaking, yes.
 9   Q      Okay.  And you're aware that the MICROL product,
10          MICROL additive that's in Petro Canada's
11          lubricant, food-grade lubricant, is registered
12          with the EPA, correct?
13   A      Yes.
14   Q      Okay.  So their sales aren't suffering because
15          they registered their lubricant, correct?
16                      MR. MCILNAY:  Object, calls for him
17          to speculate as to their sales suffering.  We
18          know about --
19                      JUDGE GUNNING:  Sustained.
20                      MS. O'MEARA:  I'll withdraw the
21          question.
22   BY MS. O'MEARA:
23   Q      Your customers chose to go to somebody that had a
24          registered product, correct?
25                      MR. MCILNAY:  One customer.
0704
 1          Objection, Your Honor.
 2   BY MS. O'MEARA:
 3   Q      Your customer, Jennie-O, chose to go to a
 4          lubricant that had a registered additive in it,
 5          correct, with EPA?
 6   A      Correct.
 7   Q      I'm sorry.  Your answer?
 8   A      Correct.
 9   Q      Thank you.
10   A      I can't know their motivation, but that's
11          correct.
12                      MR. MCILNAY:  Your Honor, could --
13          you answered the question.
14   BY MS. O'MEARA:
15   Q      Now, you testified on direct examination that EPA
16          approvals were long and expensive.  Did you mean
17          the EPA registration process?
18   A      Correct.
19   Q      Is that why you won't register your product, your
20          lubricants?
21   A      No.
22   Q      Is it part of the reason why you won't register
23          your lubricants?
24   A      It may play a small part.
25   Q      So another business decision, correct?
0705
 1   A      Correct.
 2   Q      You said that you did a market study with respect
 3          to determining if your customers would buy your
 4          product if it was registered with EPA; is that
 5          correct?
 6   A      Correct.
 7   Q      Is that market study present in the record today?
 8   A      No.  It was -- no.
 9   Q      You also talked about your concern with
10          litigation that might occur if food-grade
11          lubricant had EPA pesticides in it, identified
12          EPA pesticides in it, correct?
13   A      Correct.
14   Q      Have you considered the ramifications of telling
15          your customers that your lubricant can substitute
16          sanitization processes?
17   A      Yes, we have considered that.
18   Q      Is that a bigger risk then?
19   A      We considered it and made a point to remove that
20          reference.
21   Q      Okay.  So you weighed your risks, and you decided
22          the risk of litigation that might occur if the
23          food-grade lubricant had a pesticide number on it
24          outweighed the risk of complying with EPA FIFRA
25          regulations; is that correct?
0706
 1   A      The risk of litigation I was referring to was not
 2          my risk of litigation.  It was my customers' risk
 3          of litigation.
 4   Q      Okay.  I just want to clarify this, because you
 5          testified that you tried to remove some of the
 6          claims.  Did you try to remove them off the
 7          internet as well, the antimicrobial claims?
 8   A      The entire internet?
 9   Q      No, your web site.
10   A      Our web site.  I tried to remove them off our web
11          site, yes.
12   Q      And you're aware now that you weren't successful
13          in that attempt?
14   A      I'm aware.  Hopefully, we are successful as of
15          today.
16                      JUDGE GUNNING:  At this stage my
17          suggestion is that he take a very short break,
18          and that would allow counsel to consolidate any
19          additional questions on cross, so that we can
20          bring this to a quick close.
21                      MS. O'MEARA:  Okay.
22                      (A recess was taken.)
23                      JUDGE GUNNING:  Hopefully we'll be
24          able to get this down a little bit on cross.
25                      MS. O'MEARA:  I will try, yes.
0707
 1                      JUDGE GUNNING:  Thank you.
 2                      MS. O'MEARA:  Thank you.
 3   BY MS. O'MEARA:
 4   Q      Mr. Peter, if we could talk about your
 5          distributors for a moment.  Is FMC one of your
 6          distributors -- or they're a private label.  I'm
 7          sorry.
 8   A      Private label customer.
 9   Q      Let's talk about private label for a second.
10          They're a private label customer.  Do you supply
11          them with advertising?
12   A      No.
13   Q      You don't supply them with your advertising
14          material?
15   A      We supply -- we supply them with our product data
16          sheets and other information, so if that's what
17          you meant by the question, yes, they would have
18          access to ours.
19   Q      Okay.  And are you aware --
20                      JUDGE GUNNING:  If everyone could
21          keep their voices up a little.
22   BY MS. O'MEARA:
23   Q      Are you aware that on the internet they, too, are
24          making the same sorts of claims as Behnke is?
25   A      Yes, I'm aware.
0708
 1   Q      And you said that they're on call, waiting to
 2          hear from you about what changes they may have to
 3          make, correct?
 4   A      Correct.
 5   Q      I'm just curious.  Are you waiting for this
 6          decision to -- what is the -- what event will
 7          occur before you tell them to make a change?
 8   A      A decision on whether the EPA has jurisdiction
 9          over our products.
10   Q      Are you waiting -- you said earlier that you're
11          waiting for a decision.  But you couldn't come to
12          EPA about it, correct?
13   A      We are an FDA-regulated item, have been for 47
14          years.
15   Q      Okay.  So you --
16   A      So the FDA is my controlling agency.  It's the
17          agency that I go to for information.
18   Q      I understand.  Are you waiting for FDA to tell
19          you when or if you have to register your products
20          with EPA?
21   A      I would love to hear something from FDA.
22   Q      And you realize, though, they don't have any
23          jurisdiction over understanding -- as we do, over
24          the EPA regulations and statute, correct?  And
25          they don't have the authority to make that
0709
 1          decision, correct?
 2   A      I disagree.  But --
 3   Q      You also said that you have a number of
 4          distributors, correct?
 5   A      Correct.
 6   Q      And they're also on call waiting to hear from
 7          you, correct?
 8   A      Our branded distributors that sell JAX brand?
 9          Those that know or know that we have this action
10          pending are on call, right.
11   Q      Have you told everybody, all your -- how many
12          distributors do you have, Mr. Peter?
13   A      I don't know the number.
14   Q      Over 10?
15   A      Yes.
16   Q      Over 20?
17   A      Over 50.
18   Q      Over 50.  And have you contacted all your
19          distributors about this?
20   A      No.
21   Q      Now, you said there were some laboratory tests
22          that were done, the underlying data of these
23          charts.  Are those in the record today?
24   A      I don't know.
25   Q      Were you asked to supply those for the purpose of
0710
 1          this?
 2   A      I don't know.
 3   Q      You don't know.  You said -- strike that.
 4                      MS. O'MEARA:  May I have a moment?
 5                      JUDGE GUNNING:  Yes.
 6                      MS. O'MEARA:  Thank you.
 7                      Thank you, Your Honor.
 8   BY MS. O'MEARA:
 9   Q      Now, you said earlier that your lubricants with
10          the Micronox technology were intended to target
11          food pathogens; is that correct?
12   A      Correct.
13   Q      Are you still stating today that they're intended
14          to target them on food?
15   A      Correct.
16   Q      Only on processed food?
17   A      Only on processed food?  That's correct.
18   Q      Could it be on raw food as well, raw agricultural
19          commodities as well?
20                      MR. MCILNAY:  Objection, Your Honor,
21          to the extent that that calls for a legal
22          conclusion.  As Your Honor and Counsel --
23                      MS. O'MEARA:  I'll restate it.
24                      MR. MCILNAY:  RAC's are a term of
25          art.
0711
 1   BY MS. O'MEARA:
 2   Q      Could it be targeting, let's just say, fruit that
 3          hasn't been washed, organisms on fruit that
 4          hasn't been washed?
 5   A      I don't know how it would get on fruit that
 6          hasn't been washed.
 7   Q      How about nuts, we talked about nuts.  Could it
 8          be targeting nuts that are still in their shell,
 9          going through a conveyor belt with a lubrication
10          above?
11   A      I don't know what the pathogens would be on the
12          nuts.
13   Q      But you would sell that lubricant to a facility
14          that perhaps would be handling that scenario that
15          I just described, correct?
16   A      Yes.
17   Q      Are you stating today -- I just want to clarify
18          because I can get rid of a bunch of questions if
19          I get the answer I'm looking for -- that the
20          lubricant is not a food, a processed food?
21   A      No.
22   Q      I'm sorry.  Let me clarify the question.  Is the
23          lubricant, are you claiming that the lubricant is
24          a processed food?
25   A      That lubricant itself is a processed food?
0712
 1   Q      Yes.
 2   A      No.
 3   Q      So you wouldn't eat the lubricant, correct?
 4   A      Not intentionally.
 5   Q      Not intentionally.  You wouldn't put it on a
 6          cracker and eat it, would you?
 7   A      Not intentionally.
 8   Q      In fact, what the target is about is killing the
 9          microorganism in the lubricant itself so it
10          doesn't cause cross-contamination, correct?
11   A      I don't think that's an accurate description.
12   Q      Would it be accurate to say that you call a
13          lubricant a hot spot?
14   A      A lubricant a hot spot?  I don't know if that's
15          an accurate description.
16   Q      Mr. Peter, did you write your declaration?
17   A      I wrote the first draft.
18   Q      Okay.  Can you turn to your declaration.  I'm
19          sorry, let's find out what exhibit that is,
20          Respondent's Exhibit.  I'm sorry, I have it here.
21          Respondent's Exhibit 61.  I'm sorry.  And if you
22          could turn to Paragraph 16, which is Page 5 of
23          your declaration, please.  Can you read the last
24          sentence in Paragraph 16, please?
25   A      Our customer asked whether Behnke could formulate
0713
 1          a food-grade H1 lubricant that could reduce the
 2          risks of such cross-contamination, thus
 3          eliminating the lubricant as a hot spot for
 4          microbial contamination under the processor's
 5          HACCP evaluation process.
 6   Q      Okay.  So let me ask you the question again.  Do
 7          you believe that the lubricant is a hot spot for
 8          organisms such as E. coli, Salmonella, and
 9          Listeria?
10   A      I believe that's poorly worded.  I don't believe
11          the lubricant can be a hot spot.
12                      JUDGE GUNNING:  Okay.  I'm having
13          a -- there is some noise in the background, so
14          it's a little hard to -- what paragraph are you
15          in?
16                      MS. O'MEARA:  Paragraph 16 on Page 5
17          of Complainant's Exhibit 61, Your Honor.
18                      JUDGE GUNNING:  And if we could have
19          the court reporter read back the question and
20          answer, please.
21                      (The question and answer were read.)
22                      JUDGE GUNNING:  Thank you.
23   BY MS. O'MEARA:
24   Q      Is the Micronox technology in the lubricant to
25          kill E. coli, Salmonella, and Listeria within the
0714
 1          lubricant itself?
 2   A      No.
 3   Q      Is the Micronox technology in the lubricant to
 4          minimize cross-contamination?
 5   A      Cross-contamination in terms of when the
 6          lubricant becomes deposited on the food product,
 7          yes.
 8   Q      So would the Micronox technology kill the
 9          E. coli, the Salmonella, or control it, the
10          E. Coli, Salmonella or Listeria, when the
11          bacteria gets into the lubricant, because that's
12          where the technology is?
13   A      Would it -- yes.
14   Q      So kill it on contact in the lubricant, correct?
15   A      I don't know the capabilities of, on contact,
16          but --
17   Q      It would kill it in the lubricant, correct?
18   A      Eventually it would not survive in the lubricant
19          either.
20   Q      Okay.  So that when the lubricant drips down onto
21          the food, for example, it doesn't have a colony
22          growth of these E. coli, Salmonella and Listeria
23          bacteria in it, correct?
24   A      Correct.
25   Q      You said that you -- that the Micronox technology
0715
 1          was not in the lubricant to preserve itself; is
 2          that correct?
 3   A      Correct.
 4   Q      But some of your advertising, you will admit,
 5          says that it is in there to preserve itself,
 6          correct?
 7   A      Correct.
 8   Q      Would you also admit that in the NSF lawsuit --
 9          well, let's turn to it.  It's again Complainant's
10          Exhibit 36.  I'd ask you to turn to Page 2 of
11          that which is EPA 751.  EPA 751.
12                      Could you read into the record,
13          please, starting, The Micronox product, which is
14          the third full sentence, please.
15                      MR. MCILNAY:  Of which paragraph?
16                      MS. O'MEARA:  Paragraph 5 on page EPA
17          0751.
18                      THE WITNESS:  The Micronox product
19          has antimicrobial properties which no competing
20          product contain.  These properties extend the
21          useful lives of the food-grade lubricants
22          containing Micronox.  It does this by retarding
23          bacterial growth in the lubricant, which
24          bacterial growth otherwise would degrade the
25          lubricants and make them potential harbors for
0716
 1          bacteria.
 2   BY MS. O'MEARA:
 3   Q      Thank you.  So is that not correct?
 4   A      That's not correct.
 5   Q      And your advertising isn't correct either,
 6          correct, that says that the lubricant is there to
 7          preserve itself -- I mean, sorry -- the Micronox
 8          in the lubricant is there to preserve the
 9          lubricant itself?
10   A      It's incorrect that the microbes will degrade the
11          lubricant.
12   Q      Okay.  I understand that.  Is it correct that the
13          Micronox technology was intended to kill the
14          E. coli and Salmonella and Listeria in the
15          lubricants?
16   A      It will do that, but that's not what it was
17          intended for.
18   Q      Is it correct that some of your advertising
19          literature says that it will do that?
20   A      Yes.
21   Q      Okay.  Have you submitted any efficacy testing to
22          EPA?
23   A      No.
24   Q      Have you submitted any efficacy testing to any
25          governmental agency?
0717
 1   A      No, not to the best of my knowledge.
 2   Q      Have you submitted any efficacy testing for the
 3          Micronox technology to FDA?
 4   A      No.
 5   Q      And these lubricants are actually intended to be
 6          on the equipment, correct, to help moving parts,
 7          correct?
 8   A      Intended to lubricate the equipment, correct.
 9   Q      Okay.  Do you tell any of your salespeople to
10          market your products by telling them that -- let
11          me restate that.  Do you train your salespeople
12          with respect to Micronox technology?
13   A      Not personally.
14   Q      But ultimately you're responsible for it,
15          correct?
16   A      Yes.
17   Q      Do you know if in the training they're told to
18          tell their customers that the lubricant should be
19          listed as an ingredient because it's going to be
20          in food?
21   A      No.
22   Q      You don't know or --
23   A      No.
24   Q      -- they don't?
25   A      No.
0718
 1   Q      Do they tell your customers to list the --
 2   A      That wasn't your question.
 3   Q      All right.  Well, I'll ask another one.  Do your
 4          salespeople tell your customers to list the
 5          lubricant as an ingredient in the processed food?
 6   A      I would think it would be likely they would not.
 7   Q      Okay.  But -- okay.  In fact, the FDA regulations
 8          don't allow Behnke to add the lubricants into the
 9          food directly; do they?
10   A      Correct.
11   Q      And the lubricants with Micronox technology are
12          not designed to be applied onto or added into the
13          food under FDA, correct?
14   A      Correct.
15   Q      Do you know if any of your customers actually
16          list them as ingredients in their food?
17   A      I sincerely doubt it.
18   Q      Okay.
19                      MR. MCILNAY:  Her question was, do
20          you know.
21                      THE WITNESS:  I do not know.
22   BY MS. O'MEARA:
23   Q      Do you know if anybody lists them on the
24          nutrition labels?
25   A      I do not know.
0719
 1   Q      Do you doubt it?
 2   A      I doubt it.
 3   Q      In fact, the lubricants are not actually intended
 4          to become a component of the food, correct?
 5   A      Not intended, but they do.
 6   Q      Trace amounts of it, correct?
 7   A      Sometimes not trace amounts.
 8   Q      Okay.  But that's not the intent, correct?
 9   A      That's not the intent.
10   Q      Thank you.  And the lubricants aren't intended to
11          have any sort of technical effect on food, are
12          they?
13   A      No.
14   Q      And they're not intended to actually get into the
15          food, correct?
16   A      Not intended to.
17   Q      Okay.  None of your advertising or marketing
18          literature advises your potential customers to
19          list the lubricants as food, as ingredients in
20          food, correct?
21   A      Correct.
22   Q      And none of your advertising or marketing or
23          labeling literature tells your potential
24          customers that deadly organisms like E. coli,
25          Salmonella and Listeria will be killed upon
0720
 1          contact on food, right, when the Micronox hits
 2          it?
 3   A      I do not believe currently it should say any of
 4          that.
 5                      MS. O'MEARA:  I'm trying to move
 6          through this, Your Honor.
 7   BY MS. O'MEARA:
 8   Q      Probably be a bad business decision to advertise
 9          the lubricants as a possible ingredient in
10          processed food, correct?
11   A      I'm not a food processor, so I can't answer that.
12   Q      Is the Micronox antimicrobial technology an
13          integral part of the lubricant?
14   A      Yes.
15                      MS. O'MEARA:  Can I have a moment,
16          please?
17                      JUDGE GUNNING:  Yes.
18                      MS. O'MEARA:  Thank you.
19   BY MS. O'MEARA:
20   Q      Mr. Peter, just going back to FMC for a second.
21          Are you aware that they still advertise their
22          products to have Micronox antimicrobial
23          properties that controls E. coli, Salmonella and
24          Listeria?
25   A      Yes.
0721
 1   Q      Okay.
 2                      MS. O'MEARA:  Your Honor, at this
 3          time I ask to move Complainant's Exhibit 71 into
 4          the record.  It is all the advertising relating
 5          to FMC.
 6                      MR. MCILNAY:  I'm sorry.  I
 7          haven't --
 8                      MS. O'MEARA:  Complainant's
 9          Exhibit 71.
10                      MR. MCILNAY:  I understand.
11                      Your Honor, I'm going to strenuously
12          object to the relevancy of these exhibits.  First
13          of all, the subject of this complaint are my
14          client's claims in its literature and in its own
15          documentation, number one.
16                      Number two, even if it were to go to
17          the issue of gravity, Your Honor, it's clearly
18          been testified to that this is advertising
19          submitted by someone who is not here to discuss
20          why and for what purpose they chose to put this
21          in their advertising; although, Mr. Peter did
22          testify that they're aware of this action.  I
23          just don't see any relevancy whatsoever to issues
24          in this matter that's before you today.
25                      MS. O'MEARA:  May I respond, Your
0722
 1          Honor?
 2                      JUDGE GUNNING:  Yes.
 3                      MS. O'MEARA:  Your Honor, I think
 4          they're relevant for a number of reasons.  One,
 5          is we've determined that Behnke private labeled
 6          for FMC.
 7                      Two, is that we've determined that in
 8          the advertising materials that I'm trying to move
 9          into evidence the word Micronox is used, which is
10          a proprietary trademark of Behnke, so there's a
11          clear connection.
12                      And, three, is that if you look at --
13          and in the interest of brevity I didn't go
14          through this, but if you compare the two claims,
15          they're identical.  And so I would submit that
16          this is just an extension of what we're talking
17          about here today, Behnke and the claims that are
18          being made.
19                      JUDGE GUNNING:  Okay.  What I'm going
20          to do is sustain the objection, but allow you to
21          ask additional questions concerning the exhibit.
22          And also if you would like to make a very brief
23          offer of proof.
24                      MS. O'MEARA:  Sure, I can do that.
25                      JUDGE GUNNING:  I think this was --
0723
 1          you just did that, but if you would like to enter
 2          that into the record.
 3                      MS. O'MEARA:  Yes, I will make an
 4          offer of proof for Complainant's Exhibit 71.
 5                      Your Honor, if Mr. Peter were to
 6          testify, I would ask him to look through this
 7          material and he would tell Your Honor that on EPA
 8          1541, which is for a product called Formula 410
 9          XLT, the language there states, incorporates new,
10          proprietary antimicrobial additive technology
11          Micronox for enhanced protection against a wide
12          variety of microbial agents, including yeasts,
13          molds, gram-positive and gram-negative bacteria.
14          A first in food-grade lubricant, Micronox
15          provides significant knockdown performance and
16          has proven especially effective against Listeria,
17          and then its correct scientific name -- I won't
18          attempt it -- E. coli, and its correct scientific
19          name, and Salmonella, and its correct scientific
20          name, on constant and over extended lubrication
21          intervals.
22                      I would then have him turn to page
23          EPA 1543 for a product called Formula 10 Aerosol,
24          and have him read the language, and it would be
25          essentially the same language.
0724
 1                      I would then direct him to EPA 1545
 2          for Formula 10 and have him read that language,
 3          and the language would be essentially the same.
 4                      And then 1547 for a product entitled
 5          Formula 322, and the language would be
 6          substantially the same.
 7                      I would then ask him -- I'm sorry --
 8          and I would direct him to EPA 1549 and have him
 9          read the second paragraph on, how does it work.
10          Actually, let me read this one.  Formula 410
11          Phylax -- which has a trademark on it --
12          incorporates new proprietary antimicrobial
13          additive technology for enhanced antimicrobial
14          protection against a wide variety of microbial
15          agents, including yeasts, molds, gram-positive
16          and gram-negative bacteria.  A first in
17          food-grade lubricant, the antimicrobial additive
18          provides significant knockdown and ongoing growth
19          retardant performance in the lubricant and has
20          proven especially effective against Listeria, and
21          then the scientific name, E. coli, and then the
22          scientific name, and Salmonella, and then the
23          scientific name, on contact and over extended
24          lubrication intervals.
25                      I would then ask him if that language
0725
 1          is similar to much of the language we've already
 2          discussed regarding the Behnke Lubricants, the
 3          five lubricants we've been talking about.  And
 4          although I can't answer for him, it is similar or
 5          identical at times.
 6                      JUDGE GUNNING:  Okay.  Thank you.
 7                      So Claimant's's Exhibit No. 71 is
 8          marked as rejected.  And that offer of proof has
 9          been offered by Counsel.
10                      MS. O'MEARA:  Thank you.
11                      JUDGE GUNNING:  Thank you.
12                      MS. O'MEARA:  May I have one minute
13          Your Honor, please?
14                      JUDGE GUNNING:  Yes.
15                      MS. O'MEARA:  I have no further
16          questions at this time.
17                      JUDGE GUNNING:  Thank you.
18                      I'd really like to conclude with this
19          witness this evening.  I'm sure you would
20          appreciate it also.
21                      THE WITNESS:  I would.
22                      MS. O'MEARA:  Thank you, Your Honor.
23                      JUDGE GUNNING:  You're welcome.
24                         EXAMINATION
25   BY MR. MCILNAY:
0726
 1   Q      Mr. Peter, you were asked a number of questions
 2          by Attorney O'Meara about whether or not you
 3          would sell your lubricants, for example, to a toy
 4          company that might be concerned that the
 5          lubricant dripping on the toy would have a human
 6          pathogen, and maybe a kid would put the toy in
 7          his mouth.  Are you willing to limit your label
 8          to say that the antimicrobials are good only for
 9          processed foods?
10   A      Yes.
11   Q      Now, in that regard Attorney O'Meara asked you if
12          there were any documents or labels in the record
13          that stated that the purpose of MICROL -- or
14          Micronox, my apologies; maybe we do have a
15          trademark infringement -- Micronox, was targeting
16          food.  Do you recall that question from Attorney
17          O'Meara?
18   A      Yes.
19   Q      All right.  Now, we spent hours in two days going
20          through all of the materials that made reference
21          to Listeria, Salmonella, and E. coli.  Do you
22          agree with Dr. Blackburn's testimony that those
23          are not deleterious to the lubricant itself?
24   A      Yes.
25   Q      And why did you choose those?
0727
 1   A      We chose those because those are the typical food
 2          pathogens that our customers are most concerned
 3          with, and those were the ones that we wanted to
 4          prove that we had some effectiveness against, and
 5          those were the ones that we felt, since they were
 6          on or in food, we would be in line with the FDA
 7          guidelines of protecting against pathogens in or
 8          on food.
 9   Q      This is your -- I'm holding up a copy of the code
10          of Federal Regulation 21, part 170.  Is this your
11          book?
12   A      Yes.
13   Q      Okay.  When I say yours, I mean it's owned by
14          Behnke, correct?
15   A      Yes.
16   Q      Okay.  I apologize, but I know on direct
17          examination you did not indicate that you'd
18          received a law degree; is that correct?
19   A      Correct.
20   Q      And did you -- I don't know if you can do this
21          anymore -- did you study in any state to pass the
22          bar without a law degree?
23   A      No.
24   Q      Have you specifically studied 21 CFR for its
25          definition of processed foods?
0728
 1   A      Not in -- no, not in any great detail.
 2   Q      So your opinion that the lubricant, even that
 3          lubricant that might become part of the food
 4          incidentally, that it's not processed food.  That
 5          testimony is your lay understanding; is that
 6          accurate?
 7   A      Correct.
 8   Q      Could you turn to Claimant's Exhibit 36.  That's
 9          the Complaint.  Attorney O'Meara asked you
10          something about Paragraph 22 of Exhibit 36.  I
11          did not write down -- it's Paragraph 22 of the
12          Complaint contained in that, and it will take me
13          just a moment to find the EPA number.
14                      MS. O'MEARA:  Are you looking for the
15          EPA number for Paragraph 22?
16                      MR. MCILNAY:  Yes, of the Complaint.
17                      MS. O'MEARA:  It EPA 0756.
18                      MR. MCILNAY:  Thank you.
19                      MS. O'MEARA:  You're welcome.
20   BY MR. MCILNAY:
21   Q      Have you found that page?
22   A      Yes.
23   Q      Okay.  Do you recall the question, you were asked
24          about that?
25   A      There have been a lot of questions.
0729
 1   Q      Okay.  Well, I want to focus your attention on
 2          the sentence that says, This is so because EPA
 3          restrictions and controls on the use of
 4          pesticides by such producers and packagers.  Do
 5          you see that sentence?
 6   A      Yes.
 7   Q      Did you draft that sentence or did the attorney
 8          that signed this pleading draft that sentence?
 9   A      The attorney did.
10   Q      Okay.  If I substituted the acronym FDA for EPA
11          in that sentence, in its context, were Behnke to
12          identify the Micronox product as a pesticide, the
13          Micronox product would no longer be accepted by
14          producers and packagers of food products intended
15          for human consumption.  This is so because FDA
16          restrictions and controls on the use of
17          pesticides by such producers and packagers.
18          Would you agree with that statement?
19                      MS. O'MEARA:  Your Honor, I'm going
20          to object.  I don't see the relevance.
21                      MR. MCILNAY:  Well, she was trying to
22          suggest that he didn't want to comply with the
23          EPA because they would have control at that point
24          in time.  I'm suggesting this is a typo.
25                      JUDGE GUNNING:  Okay.
0730
 1   BY MR. MCILNAY:
 2   Q      Would that make more sense to you, sir?
 3                      JUDGE GUNNING:  I'll allow the
 4          question.
 5                      MR. MCILNAY:  What?
 6                      JUDGE GUNNING:  There was an
 7          objection, so I'll allow the question.
 8                      MR. MCILNAY:  Do you need it read
 9          back?
10                      THE WITNESS:  I don't know if there
11          was a question.  Go ahead.
12                      (The question was read.)
13                      THE WITNESS:  I don't understand the
14          question, but the problem I have is with the word
15          pesticide.
16   BY MR. MCILNAY:
17   Q      Okay.  Let me rephrase the question.  If the
18          paragraph, those first two sentences were to
19          read, were Behnke to identify the Micronox
20          product as a pesticide, the Micronox product
21          would no longer be accepted by producers and
22          packagers of food products intended for human
23          consumption.  This is so because FDA restrictions
24          and controls on the use of pesticides by such
25          producers and packagers.  As I amended it,
0731
 1          substituting FDA for EPA, would that make more
 2          sense to you?  And if it doesn't, that's a fair
 3          answer.
 4   A      It doesn't make more sense but --
 5   Q      Okay.  Fair enough.  While you made that -- while
 6          you're there.  -- strike that.
 7                      Mr. Peter, you were asked by Attorney
 8          O'Meara whether your advertising indicating that
 9          Micronox was intended to serve as a preservative
10          or protect the product itself was not a true
11          statement.  And I think your answer was, yes.
12          Why did you include that statement in the
13          advertising?
14   A      That was the statement wording that came from
15          NSF, that they -- one of the stages that they
16          said that was their preferred wording.
17   Q      Was it your intent to deceive your customers?
18   A      No.
19   Q      In your dealings with NSF, are you aware of
20          communications occurring between EPA and NSF
21          personnel concerning specifically Micronox?
22   A      Yes.
23   Q      And how are --
24                      MS. O'MEARA:  Objection, Your Honor.
25          There is no foundation for that.
0732
 1   BY MR. MCILNAY:
 2   Q      Well, how are you aware of it?
 3                      JUDGE GUNNING:  Okay.
 4                      THE WITNESS:  I'm aware of it because
 5          of a series of communications with Dr. Yano about
 6          the word Micronox.
 7   BY MR. MCILNAY:
 8   Q      And specifically did Dr. Yano provide you with
 9          copies of communications he had with EPA?
10   A      Yes.
11                      MS. O'MEARA:  Objection, Your Honor.
12          There is no foundation for that.  It's not in the
13          record.
14                      MR. MCILNAY:  Well, it's not in the
15          record as an exhibit, but I think he can testify
16          to it.
17                      JUDGE GUNNING:  To his personal
18          knowledge, I'll allow the question.
19                      MR. MCILNAY:  Okay.
20   BY MR. MCILNAY:
21   Q      Just so the record is crystal clear.  I think the
22          question was, after you received the
23          December 2006 notice of intent to file, that's
24          when you contacted the EPA?
25   A      Yes.
0733
 1   Q      And my question is, did you, Eric Peter,
 2          individually contact the EPA at that point?
 3   A      I don't remember.  I think you probably did.
 4   Q      To your personal knowledge, to your personal
 5          knowledge, has any nonfood processor approached
 6          Behnke and requested to buy any of your
 7          food-grade lubricants?
 8                      JUDGE GUNNING:  I can't hear.
 9   BY MR. MCILNAY:
10   Q      And requested to purchase your nonfood-grade
11          lubricants?
12   A      A nonfood processor requested to purchase our
13          nonfood-grade lubricants?
14   Q      I'm sorry.  A nonfood processor requested to
15          purchase your food-grade lubricants, your H1
16          lubricants?
17   A      To my personal knowledge, I don't know.
18   Q      You don't know?
19   A      I don't know.
20                      MR. MCILNAY:  Thank you.
21                      MS. O'MEARA:  Just a couple of
22          redirect.  I promise.
23                         EXAMINATION
24   BY MS. O'MEARA:
25   Q      Mr. Peter, you were asked if you were willing to
0734
 1          limit your label to only food -- to only
 2          customers that are food processors.  Is there
 3          anything on your label currently or at the time
 4          that you sold the products previously that limit
 5          the label?
 6   A      Not in such language.
 7   Q      Do your labels in any way limit to just food
 8          processors?
 9   A      Well, our labels are directed at food processing
10          equipment completely.
11   Q      Now, Mr. McIlnay showed you the FDA regulations
12          that Behnke owns.  Does Behnke own a set of EPA
13          regulations like this one?
14   A      I am not aware that we do, but --
15   Q      40 CFR 150 through --
16   A      -- Mr. Paquette may know.
17   Q      Are you aware that the definition of on or in
18          processed food is not in the FDA regulations?
19   A      I'm aware it's in some federal document.
20   Q      Do you know if it's in the FDA regulations?
21   A      On or in processed food?
22   Q      Correct.
23   A      I don't know.
24   Q      And the letters between EPA and Dr. Yano, do you
25          have those today?
0735
 1   A      I have perhaps e-mail copies of correspondence
 2          between Dr. Yano and EPA, but I don't have them
 3          with me today.
 4   Q      Okay.  One last question.  I just want to clarify
 5          the confusion over Paragraph 22, whether it meant
 6          to say EPA or FDA.  If you could look at
 7          Paragraph 21.  It's Complainant's Exhibit 36, EPA
 8          756.  And just because I know everybody wants to
 9          get home, I will read it to you.  It says, NSF
10          went further and demanded that Behnke seek
11          approval from the United States Environmental
12          Protection Agency, and in parentheses, EPA, to
13          register the Micronox product with EPA as a
14          pesticide and to label and identify the Micronox
15          product as a pesticide.  Do you see that?
16   A      Yes.
17   Q      And then the next paragraph then carries on, on
18          that discussion and says, this is so because of
19          EPA restrictions.  Do you see that?
20   A      Yes.
21   Q      Okay.
22                      MS. O'MEARA:  No further questions.
23          Thank you.
24                      MR. MCILNAY:  Nothing further, Your
25          Honor.
0736
 1                      JUDGE GUNNING:  Okay.  Does Counsel
 2          wish to preserve this witness?
 3                      MR. MCILNAY:  Yes, Your Honor.
 4                      JUDGE GUNNING:  Okay.  Your testimony
 5          is taken today, but you are not excused.  Okay.
 6          Thank you very much.
 7                      Now, logistically, how many more
 8          witnesses?
 9                      MR. MCILNAY:  Your Honor, my next
10          witness would be Mr. Paquette.  We clearly will
11          not finish his direct, but I am quite willing to
12          get started, go until 6:00 o'clock.  I will want
13          to consult with my co-counsel and my client
14          tonight after the testimony.  At the close of
15          their case, I may even further whittle --
16                      MS. O'MEARA:  I'm sorry.  I can't
17          hear you.
18                      MR. MCILNAY:  I may even further
19          whittle down our witness list.
20                      JUDGE GUNNING:  Okay.  Because the
21          caveat is tomorrow and Friday, we must be out of
22          here by 5:00 o'clock, which means 4:30 probably.
23          We have to pack up.
24                      MR. MCILNAY:  Right.  For that
25          reason, I would suggest that perhaps we get
0737
 1          started with Mr. Paquette and go until six.
 2                      JUDGE GUNNING:  Okay.  That would be
 3          fine.
 4                      MS. O'MEARA:  I have no objection,
 5          Your Honor.
 6                      MR. MCILNAY:  I could use two or
 7          three minutes.
 8                      JUDGE GUNNING:  Okay.  Let's take
 9          five minutes.
10                      (A recess was taken.)
11                      MR. MCILNAY:  While I'm pulling up
12          documents, I would like to put a couple of offers
13          on the record.  One, being that should EPA desire
14          the production of the correspondence that's still
15          in Mr. Peter's possession between Dr. Yano and
16          the EPA, we'd be happy to produce it.  And I
17          would also offer to EPA that we would offer any
18          of the efficacy study data that they would desire
19          to have.  We would be willing to give that to our
20          customers, and we would be willing to give it to
21          the EPA.
22                      MR. CHA:  Your Honor, I appreciate
23          the offer, but with all due respect, it's a
24          little late.  I mean, unless we're going to keep
25          this hearing record open and retain the
0738
 1          possibility of reconvening for a day or day and a
 2          half, I don't see the value of that.
 3                      As far as the efficacy data goes,
 4          this -- with all due respect, this is the wrong
 5          forum.  This is not the time or the place for
 6          Behnke Lubricants to try to prove the efficacy.
 7          That should be done with the Antimicrobials
 8          Division in the Office of Pesticides Programs of
 9          the U.S. EPA.  That's the appropriate forum.  To
10          review efficacy you need scientists, you need
11          scientists in a lab under scientific conditions.
12          You can't reproduce that in a courtroom.
13                      JUDGE GUNNING:  Yeah, inasmuch as
14          they were not part of the prehearing exchange, I
15          think it would be inappropriate to admit them
16          into the record.
17                      MR. MCILNAY:  Well, I'm merely making
18          the offer to provide it to them.  They may do
19          with it what they wish.
20                      JUDGE GUNNING:  Okay.
21                      MS. O'MEARA:  Your Honor, if I could
22          just follow up on the efficacy issue.  I think
23          Mr. Edwards testified that the results of the
24          efficacy testing are not the crux of this case.
25          The crux of this case is -- are the advertising,
0739
 1          marketing, and labeling claims.  So I would like
 2          to remain focused on that.
 3                      MR. MCILNAY:  I would agree.
 4                      I would call Mr. Paquette.
 5                      TROY PAQUETTE, called as a witness
 6          herein, having been first duly sworn on oath, was
 7          examined and testified as follows:
 8                         EXAMINATION
 9   BY MR. MCILNAY:
10   Q      Could you state your full name for the record and
11          spell your last name, please.
12   A      Troy Francis Paquette, P-A-Q-U-E-T-T-E.
13   Q      And, Mr. Paquette, where do you currently reside?
14   A      Hartland, Wisconsin.
15   Q      And, Mr. Paquette, do you hold any post high
16          school degrees of higher education?
17   A      I have a bachelor of science from the University
18          of Wisconsin, Superior, with a double major in
19          chemistry and physics.
20   Q      And when did you graduate from -- when did you
21          receive your degree?
22   A      1989.
23   Q      And subsequent to 1989, did you take any further
24          courses of study, such as postgraduate work?
25   A      I don't have any postgraduate work.
0740
 1   Q      None at all?
 2   A      None.
 3   Q      Okay.  Vocationally, what did you do upon
 4          graduating from the University of Wisconsin,
 5          Superior?
 6   A      I spent four years teaching at a college
 7          preparatory school, and then went to work in the
 8          lubricant industry for a company named Amsoil for
 9          about six years and a bit, and then joined Behnke
10          Lubricants a little over nine years ago.
11   Q      Let's go back just a moment.  Do you recall
12          approximately what year you started in the first
13          lubricant position?
14   A      '93.
15   Q      And I think you said the company's name was
16          Amsoil?
17   A      Amsoil.
18   Q      All right.  What was your position at Amsoil?
19   A      I started out in the quality control program, and
20          then graduated to chief chemist, and then
21          technical director.
22   Q      And to speed things up a little bit, Amsoil is a
23          producer of synthetic lubricants?
24   A      Correct.
25   Q      So you started then with Behnke Lubricants in
0741
 1          approximately what year?
 2   A      January of '99.
 3   Q      And what was your title when you were hired?
 4   A      Technical director.
 5   Q      What is your title -- are you still employed at
 6          Behnke lubricants?
 7   A      I am still employed at Behnke Lubricants.
 8   Q      And what is your title now?
 9   A      I am the technical director.
10   Q      And as technical director, let's focus on 2001 to
11          present, what are your duties and
12          responsibilities?
13   A      Several.  I oversee our quality control for
14          product production, I am responsible for our
15          product development, I oversee our used oil
16          analysis laboratory, and I also conduct our
17          competitor analysis.
18                      MS. O'MEARA:  I'm sorry.  Can you
19          read back the last portion, just the last.
20                      (The answer was read.)
21   BY MR. MCILNAY:
22   Q      I'm sure that most of the focus will be on new
23          product development.  However, what is the used
24          oil --
25   A      Used oil analysis.
0742
 1   Q      -- analysis?
 2   A      It's testing of samples of soil provided by
 3          customers to determine whether or not the oil has
 4          reached its useful life or whether or not we have
 5          problems with the equipment.
 6   Q      And your competitor analysis, what does that
 7          involve?
 8   A      We test quite a few of our competitor products
 9          that we come up against out in the market, both
10          from a performance standpoint to ascertain where
11          we are as far as where we are in the industry for
12          performance.
13   Q      All right.  Both of the testing you do on used
14          oil and competitor analysis, where does that
15          testing take place?
16   A      That testing is conducted in our laboratory at
17          Behnke Lubricants.
18   Q      And that's located at --
19   A      In Menomonee Falls.
20   Q      -- Menomonee Falls.  Could you wait until I
21          finish my question?
22   A      I certainly can.
23   Q      I'm sure everybody is anxious to get out of here,
24          including you.
25                      Your responsibilities for new product
0743
 1          development, could you describe, at least at
 2          first generally, for the Court, what you do?
 3   A      When we're looking at doing product development
 4          work, a lot of it is dependent on what's the
 5          stimulus for looking at it.  Whether it's a new
 6          piece of equipment may have come to market, it
 7          may be a competitor's product all of a sudden got
 8          a lot better, it may be that we've had customers
 9          request either higher viscosity or lower
10          viscosity, essentially thicker or thinner oil,
11          ascertaining whether or not we've got good water
12          demulsibility.
13   Q      Okay.  And new product development brings to mind
14          that you come out with a brand new product, might
15          have a new product name, and so on.  I'm just
16          curious, does it also include improvements to
17          existing products?
18   A      That's part of the product development process.
19          Again, you know, whether it's a new product or a
20          reformulation, both are product development.
21   Q      All right.  And we heard some testimony from
22          Mr. Peter about compounding the lubricants.  Do
23          you recall that?
24   A      Yes.
25   Q      All right.  When a lubricant is compounded, at
0744
 1          least in Behnke's plant, are there formulas or
 2          something that the plant is given to know what
 3          ingredients go in what product?
 4   A      Yes, correct.
 5   Q      All right.  Does it fall under your auspices to
 6          come up with those formulas for your products?
 7   A      I do the development work, or laboratory staff
 8          may do the hands-on work, depending.  Typically
 9          we do, Mr. Peter and I do, review of the product
10          line annually --
11   Q      All right.
12   A      -- to review product.
13   Q      Okay.  I want to focus on the technical, how do
14          the people on the production floor know what to
15          put in a HALO-Guard?
16   A      The product formulations are controlled in a
17          database, of which our production personnel have
18          access to generate what we call a batch ticket.
19          And on the batch tickets, essentially it's a
20          recipe, for simplification, and it would list the
21          ingredients that would be going into that
22          particular product.  And with the database they
23          would essentially set the amount that they want
24          to produce.  Let's say it's 1,000 gallons or
25          5,000 gallons.  And when they enter that into the
0745
 1          database, it generates the quantities that need
 2          to be placed into the blend kettle or the
 3          reactor.
 4   Q      Okay.  So a very simple term, they don't need to
 5          calculate, if I want to make a double batch of
 6          pancakes, what is two cups compared to --
 7   A      We calculate that for you.
 8   Q      All right.  And within Behnke, this is what I'm
 9          trying to get at, is it your responsibility
10          ultimately to determine that those recipes are
11          what you want them to be?
12   A      Correct.
13   Q      Okay.  Other than postgraduate work or college,
14          or even in your undergraduate, have you had
15          occasion to get education through industry
16          groups, seminars, that sort of thing?
17   A      Yes.  I'm a member of the Society of Tribologists
18          and Lubrication Engineers.
19   Q      And a Tribologist would be somebody --
20   A      Tribology is the study --
21   Q      Please let me finish my question.  It will be
22          much easier for Phyllis and the record.
23   A      Okay.
24   Q      You anticipated my question.  A Tribologist is
25          somebody who deals in tribology.  Could you tell
0746
 1          the Court what tribology is?
 2   A      Simplest term, tribology is the study of friction
 3          or movement between bodies.
 4   Q      All right.  And as a member of that organization,
 5          you have opportunities for continuing education?
 6   A      Correct.
 7   Q      Mr. Paquette, I want to focus, quickly get down
 8          to the meat of this matter.  Are you familiar
 9          with 21 CFR 178.3570?
10   A      Yes.
11   Q      Is that a relevant code section to you?
12   A      I'm sorry.  Was that relevant or irrelevant?
13   Q      Is it relevant?
14   A      It's a relevant section, yes.
15   Q      Okay.  Why?
16   A      The 178.3570 under the 21 CFR is where the
17          materials that I'm allowed to use for the
18          development and for the manufacture of H1
19          lubricants are defined.
20   Q      And within Behnke, is it your responsibility to
21          confirm or make sure that your recipes for H1
22          lubricants fall within the confines of that
23          regulation?
24   A      Within 21 CFR, because there are other sections
25          that are utilized.
0747
 1   Q      I understand.  But --
 2   A      That is correct.
 3   Q      As to that section, what I'm really asking you
 4          is, at Behnke who, who is responsible for making
 5          sure that the recipes fit within the section?
 6   A      It's my responsibility, sir.
 7   Q      All right.  And from your testimony, I take it
 8          that that particular section, but perhaps others,
 9          they relate to the H1 lubricants?
10   A      Correct.
11   Q      Do they relate to any other lubricants?
12   A      They specifically are addressing the incidental
13          food contact lubricants.
14   Q      All right.  Quickly, because in the interest of
15          time, we've heard testimony H1 lubricants is a
16          designation for the incidental food contact
17          lubricants?
18   A      Correct.
19   Q      Are there other designations, for example, H2?
20   A      Yes.
21   Q      Is that an incidental food contact lubricant
22          designation?
23   A      No, it is not.
24   Q      All right.  So with regard to an H2 lubricant, do
25          you have to concern yourself with 21 CFR 178 --
0748
 1          you know the rest of it?
 2   A      No.
 3   Q      All right.  Now, we heard Mr. Peter talk about
 4          concocting new products and formulas.  Are you
 5          the person at Behnke that worked on the
 6          development of what is now referred to as
 7          Micronox technology?
 8   A      Yes, I am.
 9   Q      And you testified that with regard to your
10          product development, your new product
11          development, that there might be different
12          incentives for when you take on that task, for
13          example, a new piece of equipment, or a
14          competitor's product has improved.  What was the
15          impetus for your work on what ultimately became
16          known as Micronox?
17   A      A request was made of one of our salesmen from a
18          gentleman at Kraft with a question on whether or
19          not there was anything we could do to improve the
20          lubricant's ability to combat some pathogens.
21   Q      And were they specific with regard to the
22          pathogens?
23   A      Yes, they were.
24   Q      And do you recall what those pathogens were?
25   A      The pathogens of discussion were Listeria,
0749
 1          E. coli and Salmonella.
 2   Q      And do you recall who the customer was?
 3   A      Kraft Foods.
 4   Q      All right.  Did you, Mr. Paquette, set out to see
 5          if you could do that?
 6   A      Yes, I did.
 7   Q      And can you tell the Court what it is you did?
 8   A      There's been various food additives that are
 9          allowed under the 21 CFR that are GRAS, Generally
10          Recognized As Safe, that are food antimicrobials,
11          food additive antimicrobials.  And we worked with
12          several different components there to see if we
13          could come up with something that would give us a
14          win.
15   Q      All right.  And let me make sure that I
16          understand your testimony and that the record is
17          clear.  The initial go at this, you used
18          additives to the oil or to the lubricant that
19          were also GRAS?
20   A      Correct.
21   Q      And you referred to GRAS as food additives?
22   A      Correct.
23   Q      All right.  Let me ask kind of a general
24          question, and then I want to come back to Kraft
25          and be more precise.  We've heard testimony
0750
 1          throughout this hearing that Micronox technology
 2          is used in a broad range of H1 lubricants.  Is
 3          that consistent with your knowledge?
 4   A      That's correct.
 5   Q      Is the Micronox technology in all of those
 6          lubricants identical with regard to the GRAS
 7          additive that's used?
 8   A      No.  They can't be.
 9   Q      Okay.  They can't be, why?
10   A      We've got some issues with solubility in oil.
11          Some of them are -- some of the components are
12          solids, so we can use certain ones, for example,
13          in grease where we have a thickener system that
14          provides media to support it.  Some of them
15          aren't basically soluble in oil, so we can't
16          dissolve them down into a fluid component in the
17          lubricant.  So it's a balancing act, and it's
18          very product dependent.
19   Q      All right.  Are these GRAS additives ever used
20          for purposes other than antimicrobial properties
21          in any of your lubricants?
22                      MS. O'MEARA:  Your Honor, I'm sorry.
23          May I ask that the court reporter read that
24          question back.
25                      (The question was read.)
0751
 1                      THE WITNESS:  Not the GRAS
 2          components, no.
 3   BY MR. MCILNAY:
 4   Q      We heard testimony from Mr. Edwards about active
 5          ingredients and inert ingredients.  Did you hear
 6          that?
 7   A      Yes, I did.
 8   Q      And did you have an understanding of the
 9          difference between active and inert ingredients?
10   A      Yes, I do.
11   Q      All right.  Within the lubricants, without
12          identifying specific components, the active
13          ingredients that provide the antimicrobial
14          properties in the lubricants, are they the GRAS
15          additives?
16   A      The GRAS additives are components of the active
17          ingredients, yes.
18   Q      All right.  Just so I understand, so the GRAS
19          ingredients are combined with something else to
20          create the active ingredients?
21   A      The GRAS components are active ingredients in the
22          formulations.
23   Q      All right.  Are there other active ingredients in
24          the --
25   A      Yes, there is.
0752
 1   Q      Okay.  And I take it from your answer, they're
 2          not GRAS?
 3   A      They are approved under the 3570.
 4   Q      What is 3570?
 5   A      The 21 CFR 178.3570.
 6   Q      Okay.  And that section refers to food additives
 7          that are safe for human consumption, 7530?
 8   A      3570 are specific to additives allowed for
 9          incidental food contact lubricants.
10   Q      Thank you.  So in the Kraft case do you recall
11          which lubricant they were using?
12   A      The initial product we did work with was on the
13          POLY-Guard FG-2.
14   Q      And the POLY-Guard FG-2, is that a grease or a
15          fluid?
16   A      It's a grease.
17   Q      And you undertook to experiment with finding a
18          formula that you thought would be effective for
19          their express need, correct?
20   A      Correct.
21   Q      Did you, Troy Paquette, do any of your own
22          testing on the finished product to determine
23          whether or not it was effective in addressing
24          Kraft's concerns?
25   A      We did not do any testing in-house.  We did our
0753
 1          testing with an independent laboratory.
 2   Q      Okay.  And the independent laboratory that you
 3          used, who is that?
 4   A      Sommer, S-O-M-M-E-R, Frey, F-R-E-Y.
 5   Q      And where is Sommer Frey located?
 6   A      In Milwaukee.
 7   Q      Have you used that laboratory in the past?
 8   A      Yes, we have.
 9   Q      All right.  Is that the only testing that was
10          done on the initial product that had the
11          technology which is now referred to as Micronox?
12   A      That was our initial work prior to providing
13          samples to Kraft for their own testing.
14   Q      All right.  And just so we get the time frame
15          down, do you remember approximately when this
16          work took place?
17   A      It's either late '99 or early 2000.
18   Q      And Behnke, as I understand it, you had the
19          Sommer Frey test done.  Did you retain the data
20          from those tests?
21                      MS. O'MEARA:  Your Honor, I'm going
22          to object at this point.  We don't have this
23          Sommer Frey data in the record, so I'm not sure
24          if there is an appropriate foundation or what the
25          relevance at this point is.
0754
 1                      MR. MCILNAY:  I'm simply asking
 2          whether or not --
 3                      MS. O'MEARA:  Your Honor, just to
 4          add, I also feel it's prejudicial because we
 5          don't have an opportunity to review it, and that
 6          was the whole purpose of the prehearing exchange.
 7                      MR. MCILNAY:  Well, Your Honor, until
 8          Mr. Edwards testified as to the requirements for
 9          retaining data with nonhuman pathogen claims, but
10          still a requirement that they retain the data, I
11          didn't know data retention was going to be a
12          matter of issue in this case.  It's a simple
13          question, yes or no.  Did they retain --
14                      JUDGE GUNNING:  Was this information
15          requested?
16                      MS. O'MEARA:  Yes.
17                      JUDGE GUNNING:  And do you have
18          anything that reflects that?
19                      MS. O'MEARA:  Yes.  Yes.
20                      MR. CHA:  It will take a minute to
21          find the file, Your Honor.
22                      MR. MCILNAY:  For the record, I'm
23          accepting their representation.
24                      JUDGE GUNNING:  Okay.
25                      MR. MCILNAY:  It's not necessary.
0755
 1                      MR. CHA:  I'm sorry, Your Honor.
 2          What?
 3                      JUDGE GUNNING:  There is a
 4          stipulation that that was requested.  And that
 5          was part of the voluntary disclosure?
 6                      MS. O'MEARA:  And the motion to
 7          compel, I believe.  Right?
 8                      MR. CHA:  I believe so, Your Honor.
 9                      JUDGE GUNNING:  Okay.  Under those
10          conditions, I will have to strike references to
11          that.
12                      MR. MCILNAY:  All right.
13   BY MR. MCILNAY:
14   Q      Mr. Paquette, you did supply a sample of what you
15          came up with to Kraft?
16   A      Correct.
17   Q      And ultimately did Kraft begin to purchase the
18          product with the technology that you had
19          developed?
20   A      Yes, they did.
21   Q      If you recall, between the time you gave them the
22          sample and the time they started to place orders
23          for actual use in their plant, how much time
24          expired?
25   A      I don't know that information.  I do know that we
0756
 1          sent them several different sets of samples so
 2          they could prolong their testing, but I don't
 3          know when the first date of their purchase would
 4          be.
 5   Q      Okay.  Roughly do you know over what kind of time
 6          period they were given additional samples for
 7          further testing?
 8   A      Roughly a six-month time frame.
 9   Q      All right.  And you simply don't know then when
10          they placed their first commercial order for
11          purposes other than testing?
12   A      Correct.
13   Q      Once the -- I'm sorry.  It was POLY-Guard FG?
14   A      FG-2, correct.
15   Q      FG-2.  Once Kraft finished its testing with that,
16          was the technology used for Kraft added to
17          POLY-Guard FG-2 on a regular basis?
18   A      Yes.
19   Q      All right.  So the formula in the database was
20          changed to make that -- those changes to the
21          POLY-Guard FG-2 consistent from there on out?
22   A      Correct.
23   Q      From that time to today, has the formula for the
24          POLY-Guard FG-2 changed at all?
25                      MS. O'MEARA:  Objection, Your Honor.
0757
 1          I don't see the relevance of that at all.
 2                      MR. MCILNAY:  If I could finish my
 3          question -- with regard to Micronox technology?
 4                      JUDGE GUNNING:  I'll allow the
 5          question.
 6                      Do you want it reread?
 7                      THE WITNESS:  I think I know.  No, it
 8          has not.
 9   BY MR. MCILNAY:
10   Q      All right.  Was the technology referred to as
11          Micronox then?
12   A      No, it was not.
13   Q      All right.  Obviously, further work was done on
14          what's now known as the Micronox technology
15          because we've had days of hearing about all the
16          different products in which that technology now
17          resides.  We have six products at issue in this
18          case.  The first one happens to be the JAX
19          POLY-Guard FG-2.  We've covered that.  POLY-Guard
20          FG-LT, that would be a fluid lubricant?
21   A      That is also a grease.
22   Q      Oh, I'm sorry.  POLY-Guard FG-2 is a grease?  Is
23          that a yes?
24   A      Correct.
25   Q      You need to verbalize your answers.  POLY-Guard
0758
 1          FG-LT is a grease as well?
 2   A      Correct.
 3   Q      JAX HALO-Guard FG-2, that is a grease?
 4   A      Correct.
 5   Q      And JAX HALO-Guard FG-LT is a grease; is that
 6          correct?
 7   A      Correct.
 8   Q      JAX Magna-Plate 74, what kind of product is that?
 9   A      It's an oil.
10   Q      And JAX Magna-Plate 78, what kind of product is
11          that?
12   A      Also an oil.
13   Q      Okay.  Are the -- just quickly, the JAX
14          Magna-Plate 74 versus the 78, what is the
15          significance of the numeric designations
16          following the name?
17   A      They're product designations, but they are
18          different product applications.
19   Q      All right.  The Micronox technology has since
20          2001, since the Kraft project, been extended to
21          the JAX Magna-Plate 74 and the JAX Magna-Plate
22          78?
23   A      Correct.
24   Q      Do you use the same GRAS ingredients in those
25          products as you did in the POLY-Guard?
0759
 1   A      No, we do not.
 2   Q      And the reason for that is what you testified to
 3          earlier, that you have issues with solubility,
 4          etc.?
 5   A      That's correct.
 6   Q      Approximately when, approximately -- I understand
 7          you may not know exactly when.  Let me back up.
 8          Let me go through this chronology.  JAX
 9          POLY-Guard FG-LT, that now contains a version of
10          the Micronox technology?
11   A      Correct.
12   Q      Is it identical to the original technology in the
13          JAX POLY-Guard FG-2?
14   A      Yes, it is.
15   Q      JAX HALO-Guard FG-2, does that now contain the
16          Micronox technology?
17   A      Yes, it does.
18   Q      And is it identical to the JAX POLY-Guard FG-2
19          technology?
20   A      The Micronox components are identical.
21   Q      Okay.  And that's what I meant by my question.
22          And if I forget to ask that, that's -- for the
23          rest of these questions about the products,
24          that's what I'm referring to.  And the JAX
25          HALO-Guard FG-LT, the Micronox technology has
0760
 1          been incorporated into that product?
 2   A      Correct.
 3   Q      And that Micronox technology, is it identical to
 4          the original Micronox technology incorporated in
 5          the JAX POLY-Guard FG-2?
 6   A      Yes.
 7   Q      Okay.  Do you have a recollection of
 8          approximately when the Micronox technology was
 9          added to the JAX POLY-Guard FG-LT, JAX HALO-Guard
10          FG-2, and JAX HALO-Guard FG-LT?
11   A      I can't remember when it was added to the
12          POLY-Guard FG-LT, but it would have been added
13          shortly after when the HALO-Guard LT and FG-2
14          were coming to market.
15   Q      Were those new products then, beyond the addition
16          of Micronox?
17   A      The HALO-Guard products were developed after,
18          subsequent to Micronox.
19   Q      All right.  So the HALO-Guard products came to
20          market, and then the JAX POLY-Guard FG-LT, to
21          your recollection, that came -- the addition of
22          Micronox to it came later?
23   A      The addition to the POLY-Guard was prior to the
24          HALO-Guard.
25   Q      Okay.  Now, you testified that JAX Magna-Plate,
0761
 1          because that's an oil versus a grease, has a
 2          different technology to achieve what is
 3          generically referred to as the Micronox
 4          technology.  Do you recall approximately when
 5          that new formulation for oils was put together?
 6   A      My best recollection is the process occurred
 7          probably six to nine months after the grease work
 8          was developed.
 9   Q      All right.  As far as the categories of
10          lubricants that are H1 that are manufactured
11          and/or sold by JAX, can they all be divided into
12          either a grease or an oil, or is there some third
13          category of H1 lubricants?
14   A      There could be a third category, but it's not
15          pertinent to the Micronox discussion.  So whether
16          you want me to go there or not, I don't know.
17   Q      Well, so that -- I don't need to know it, but let
18          me ask you.  It doesn't use the Micronox
19          technology --
20   A      Correct.
21   Q      -- this third category.  So the H1 lubricants
22          that utilize the Micronox technology as you've
23          defined it, are either oils or they're greases?
24   A      Correct.
25   Q      Okay.  Are all of the greases identical as far as
0762
 1          the Micronox technology is concerned?
 2   A      All of the greases utilize the same Micronox
 3          technology.
 4   Q      Same question with regard to the oils.  Do all of
 5          the oils utilize the same Micronox technology?
 6   A      No.
 7   Q      All right.
 8                      MR. MCILNAY:  I don't know that we
 9          need to get into it.  It is six, Your Honor.
10          This would be a good time.
11                      JUDGE GUNNING:  Well, this would be,
12          exactly.
13                      Now, there was a request for tomorrow
14          morning.  Is that off the table, on the table,
15          8:00?
16                      MR. MCILNAY:  My thought was this,
17          that I'll -- because I'm staying closer, I'll be
18          here when the building opens at 7:30.  And I'm
19          happy to meet with you when you get here.
20                      MS. O'MEARA:  At what time?
21                      MR. MCILNAY:  8:00.
22                      MS. O'MEARA:  That would be fine.
23                      JUDGE GUNNING:  And we wouldn't start
24          before 8:30.
25                      MS. O'MEARA:  Okay.  I mean, I want
0763
 1          to keep everybody on schedule.
 2                      MR. MCILNAY:  Absolutely.
 3                      JUDGE GUNNING:  Right.  Tomorrow
 4          we'll get started at 8:30.
 5                      MR. MCILNAY:  And if this isn't open,
 6          I'll wait outside.  Very good.
 7                      Thank you, Your Honor.
 8                      JUDGE GUNNING:  And don't forget the
 9          CBI, make sure that's taken care of.
10                      MR. MCILNAY:  Yes.  The CBI, that's
11          the manila folder, manila envelope.
12                      (The proceeding was adjourned at 6:00
13                       p.m.)
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0764
 1   STATE OF WISCONSIN     )
 2                           )  SS
 3   COUNTY OF MILWAUKEE    )
 4   
 5           I, PHYLLIS M. KAPARIS, do hereby certify that I
 6   reported the foregoing proceedings at the time and place
 7   specified in the title page of said transcript and that
 8   the foregoing is a full, true and correct transcription
 9   of my stenographic notes thereof.
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12                     ___________________________
13                          PHYLLIS M. KAPARIS
14                            Court Reporter
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