UM Grace Case

  When court resumes Wednesday morning in the W.R. Grace trial, Judge Donald Molloy will have made a final decision on whether to allow Robert Locke’s testimony regarding two Grace executive meetings in 1986. Testimony about the meetings, which were about a proposed new regulatory standard, raised vigorous objections from defense lawyers after the jury left the room Tuesday.

The judge said he will examine the arguments and documents submitted by both the defense and prosecution tonight and draw  his conclusion.  For planning purposes, Molloy instructed both parties to prepare for court Wednesday as if none of Locke’s contested testimony will be allowed.

The meetings in question took place on July 1 and July 2, 1986.  As director of marketing for building products, Locke was present at these meetings and his take on what transpired appears to be considered a crucial part of his testimony by the prosecution.

New standards from the Occupational Safety and Health Administration were the basis of the meetings. According to U.S. attorney Kris McLean, Grace executives attempted to conceal all evidence of the meetings.  McLean has a 1985 document that appears to show defendant Robert Walsh calculating the cost of expected and excess death tolls as a result of Grace product use.

The prosecution expects Locke to testify that the main priority of the meetings was first to preserve profits, then to comply with the new OSHA guidelines. The new rules  limited the permissible fiber concentration to a 0.2 limit.  He would also speak on the exit strategies discussed for getting out of Libby, Mont., such as selling land and halting vermiculite production.

The government is trying to use these meetings as proof of Count I of the indictment, showing the defendants were part of a conspiracy to keep secret the health risks posed by asbestos-tainted products and production.

Perhaps of greater importance, the prosecution indicated the meeting memos would “demonstrate Grace was withholding information about asbestos in its vermiculite from customers” and the government, and the memos suggest a motive to keep it a secret.

The defense forcefully struck back, bringing out three consecutive defense attorneys to hammer their point home: not only did the government know about the asbestos in the vermiculite, but it encouraged Grace to petition OSHA for an exemption to the new standards, which it received.

David Bernick, lead defense attorney for Grace, felt the testimony would just be rehashing the same information from the “hundred documents” the government has given the jury and that no inference of conduct to defraud the government is proven.

“There is no underlying nexus established between the concern of MK5 and MK6 and an intent to defraud the United States government and Grace’s consumers,” Bernick said, referring to Monokote 5 and Monokote 6, a succession of products that represent a shift from asbesotos-tainted to asbestos-free manufacturing. “The real problem is it’s extremely difficult to figure out their conspiracy case and how it connects to this document (meeting notes taken by Locke) dangling out here.”

Bernick also said that Locke has suspicious motives for testifying, as he is currently embroiled in a lawsuit with Grace.

“You can’t get away from the fact that this guy has got an enormous, enormous, profound axe to grind,” Bernick said.

Thomas Frongillo, the attorney for defendant Robert Bettacchi, opened his statement with an ominous warning: “I will show how the witness will commit perjury on the stand,” Frongillo said.

He would commit perjury, Frongillo explained, because Locke alleges that these meetings were secret.  Frongillo said the government knew about the switch from MK5 to MK6 in its Monokote products.

Initially, the product would not have had to come off the market, because it met standards.  But OSHA lowered standards further than Grace thought they would, so OSHA urged Grace to request an exemption to the new law, an exemption they got.

“Our leading product will be taken off the market, and this is being ordered by the government,” Frongillo said.  “OSHA encouraged this exemption, so they (government) knew there was asbestos in the product.”

“Are we going to let Locke take the stand and lie to these people?” Frongillo asked, referring to the jury.

Defense attorney Stephen Spivack called pushing for the testimony an “act of desperation” by the prosecution.

“What they are trying to do is, at the eleventh hour, take a business meeting that every business in the U.S. would have had occur the exact way this had,” Spivack said.  “The prosecution is trying to draw an inference from a conspiracy they have yet to prove.”

McLean was given a chance to answer back and could not see the imminent perjury Locke would be guilty of.  He said the meeting notes were probative — meaning they tend to or actually do prove something.

“Probative of what?” Judge Molloy asked.  “I’m not trying to be facetious or truculent, but probative of what?”

After more discussion on the relevance of the documents to the case, and to the conspiracy charge itself, Molloy announced he had heard enough.  He excused the court and thanked everyone for sticking it out almost an extra hour.  Court will resume at 8:30 Wednesday morning. 

–Josh Benham (7:30 p.m.)