Monsanto files 'emergency' motion for details on UAlbany professor

Dr. David O. Carpenter, head of the Institute for Health and Environment at the University at Albany, has been on "alternative assignment" since May pending a disciplinary investigation. Carpenter is a key witness in a case in which the Saint Regis Mohawk Tribe is suing Monsanto alleging an increased risk of cancer and other diseases due to PCB exposure.

ALBANY — Attorneys for Monsanto Company filed an emergency motion late last week asking a Missouri judge to let them reopen discovery in a massive pollution contamination case so they can learn more about an ongoing disciplinary investigation into noted PCB research David O. Carpenter, the longtime director of the Institute for Health and the Environment at the state University at Albany.

Carpenter, who is serving as an expert witness in numerous toxic tort cases against Monsanto and other companies, is a key witness in the case in which the Saint Regis Mohawk Tribe is suing the company and its corporate successors. The tribe alleges its members have an increased risk of cancer and other diseases due to PCB exposure from eating fish taken from contaminated waters. The pollution is alleged to have come from Superfund sites adjacent to the sprawling Akwesasne tribal lands that straddle the U.S.-Canadian border in northern New York.

The motion was filed by an attorney with Shook Hardy & Bacon, a law firm that represents Monsanto in toxic pollution cases it has faced across the nation. The law firm and Monsanto, now owned by Bayer, are both headquartered in Missouri, where the lawsuit is pending in the Circuit Court of St. Louis County.

The law firm said it learned about the university's investigation of Carpenter from a Feb. 5 story published in the Times Union that reported the renowned PCB researcher had been quietly placed on "alternate assignment" nine months ago. The researcher was instructed to not visit any campuses and to perform his duties from home as the school investigated his extensive work as an expert witness.

The investigation of Carpenter's compensation for that work was prompted by a Freedom of Information Law request filed a year ago by an attorney with Shook Hardy & Bacon.

"The particulars of the university's disciplinary investigation of Dr. Carpenter, that defendants have just been made aware of through the Albany Times Union article, is critically material to the jury's determination of Dr. Carpenter's credibility and bias," the motion states. "In several cases against Old Monsanto, Carpenter has routinely testified that he does not take money for his PCB-related expert witness work; rather, the money goes to various aspects of SUNY Albany or gets paid directly to his students. ... Despite the funding Carpenter has received for expert litigation work, that he has directly applied to his research endeavors, he has failed to disclose this to the scientific journals in which his research is published."

A day after the Times Union's story was published, Carpenter and his attorney met with UAlbany officials who they said told them that he could resume his full duties as a faculty member — but that the university wanted him agree to restrictions that they said would effectively require him to discontinue work as an expert witness in order to remain a member of the faculty. Carpenter and his attorney, Robert T. Schofield of Albany, said they did not agree to that request, and the matter remains in limbo.

"They have not told me that I can resume my duties, but have given me until March 1 to agree to a list of restrictions, some of which are unacceptable," Carpenter said. "One is that I'm not to be allowed to pay my students with funds obtained from expert witness work. I'm not to use any university facilities or state time for expert witness-related activities even if I'm not accepting any funds personally."

He added the second demand is "not a great problem" and that about 90 percent of his work is devoted to teaching, research and other university programs.

Monsanto's attorney said that when they deposed Carpenter in April, a month before he was placed on "alternative assignment" by UAlbany, they were unaware of the pending disciplinary investigation and "did not have the opportunity to inquire about the investigation at that time."

"Since his deposition in this case, Dr. Carpenter has provided sworn trial testimony in two cases against Monsanto and sworn deposition testimony in two cases against Monsanto — never once mentioning the disciplinary investigation the university was conducting into his research and/or funding that lead to him to be placed on restricted duties and instructed not to visit any campuses," the motion continued.

Bayer, which acquired Monsanto in 2018 for $66 billion, issued a statement to the Times Union last week alleging the revelations about the disciplinary investigation of Carpenter raise questions because they contend he was using money from his testimony as an expert witness to support research programs at UAlbany — something the university has been aware of for years and that Carpenter has disclosed in prior testimony.

"The ongoing investigation and disciplinary action taken by SUNY Albany, exposed in a recent story published by the Albany Times Union, raise significant questions about the independence of Dr. Carpenter's university-based PCB research, his forthrightness in recent sworn testimony regarding his expert fees and his use of this money, and whether his published PCB research violates the policies of scientific journals given his potentially undisclosed conflicts," the attorneys for Monsanto wrote in the motion.

Jordan Carleo-Evangelist, a spokesman for UAlbany, said "faculty are permitted to testify as expert witnesses consistent with applicable laws, regulations and policies."

"The university has an obligation, however, to ensure that all research centers and other entities affiliated with it are operating consistent with state and federal laws and regulations, as well as SUNY and Research Foundation policies and procedures," he added. "This is a matter of compliance and is wholly independent of the content of the testimony, the parties to the litigation or the work being performed."

Carpenter has for decades conducted extensive research on PCB contamination from a General Motors Foundry Site in Massena, St. Lawrence County, that closed in 2009. The plant was directly adjacent to the Mohawk Nation of Akwesasne, and Carpenter's research included health studies of the Mohawks and animal toxicology studies examining the effects of PCBs on the nervous, immune and endocrine systems. Two other aluminum foundries in that area also were blamed for leaking PCBs into the St. Lawrence River from hydraulic fluids they used.

The chemical company has frequently faced off against Carpenter when he has testified as an expert in civil actions in which the plaintiffs are usually alleging they have suffered serious health consequences due to exposure to toxic substances. Monsanto has paid billions of dollars through court verdicts and settlements related to its manufacturing of PCBs — or polychlorinated biphenyls — and other biochemical products. Nearly all PCBs in the U.S. were produced by Monsanto before the chemicals were banned by the U.S. Environmental Protection Agency in 1977.

Carpenter's research on PCBs began nearly 40 years ago. He was the former director of the state Health Department's Wadsworth Laboratory in Albany, a position he left in 1986 to become the founding dean of UAlbany's School of Public Health. In that role, he directed a multi-year study on the health effects of exposure to PCBs that was funded by the National Institute of Environmental Health Sciences. Court records indicate he has over 400 peer-reviewed publications in the fields of neuroscience and environmental health and has been active in training and research.

Carpenter has for two decades arranged for the money he has received for testifying as an expert witness — minus travel expenses— to be funneled back to the university to assist his graduate students, staff and research programs.

For most of that time, the money was diverted into a special account at the SUNY Research Foundation, a nonprofit educational corporation that administers grants and other programming for the state university system. But a few years ago, Carpenter said, they discovered Internal Revenue Service regulations prohibited the disbursement of what was considered his personal funds into a research account.

Carpenter, who said he received about $200,000 in compensation last year for his expert testimony, said that he consulted with the university's vice president for research to find other options for directing the payments into the health and environmental sciences program. They explored diverting the money through the UAlbany Foundation, but it wasn't an option, and learned that both the university and Carpenter faced potential tax consequences if the payments were made directly to him and then provided to students and research staff.

Carpenter said they settled on a plan to have the law firms pay the students and staff directly.

After he was placed on restricted duties last year, Carpenter said university officials came to his office and removed files that included his expert reports, depositions, invoices and other financial records. He charges $400 an hour for his private consulting work and said the money has been used to help his master's and Ph.D. students with tuition and living expenses, as well as to support staff and research studies.

"It's grown over time," he said of his consulting work. "I provided all the invoices. They came to my office and emptied the three file cabinets for legal activity and carted it away. From my perspective, it should have taken them an afternoon to go through my invoices and see that I wasn't lining my pockets."

Carpenter and his attorney, Schofield, previously said they suspect the company's attorneys were either seeking to silence the Harvard-educated public health physician or to undermine future testimony when they filed the formal request a year ago for records related to his funding, payments, grants, scholarships, research accounts, staff and students. The request sought records specifically in connection with any consulting services or expert testimony he has provided related to PCBs.

Schofield said the 86-year-old professor's expert testimony "has caused Monsanto to pay out many millions of dollars in damages due to PCB contamination."

"We have no doubt that Monsanto and its allies have sought, and will continue to seek, ways to discredit Dr. Carpenter's testimony in future cases," he added.