March 16, 2009
All posts for March 16, 2009, in reverse chronological order. Read from the bottom up.
Asbestos problem was a threat to Grace’s profit, former financial analyst says
Top employees at W.R. Grace knew about asbestos contamination in the Libby, Mont., mine since the late 1970s, James Richard Becker, Jr., said in court Monday morning. Becker, a former financial analyst for W.R. Grace, said the company worried it would have to change the way ore from Libby, Mont., was processed – an ordeal that would have made the business unprofitable, he said.
“W.R. Grace is a very financially run company,” Becker said. “Everything is done by the numbers. Every purchase must be justified, and it must show how it could help make money.”
A W.R. Grace employee from 1976 to 1980, Becker was a member of the Zonolite Strategic Taskforce, a group that dealt with various problems the company was facing. At each meeting, Becker took notes on what was discussed.
Looking at a copy of his meeting notes, government attorney Kris A. McLean asked Becker to read the names of people it had been sent to. One name was Jack W. Wolter, a defendant in the case.
Becker also read through his notes, which detailed what the task force had identified as W.R. Grace’s strengths and problems.
“Tremolite in vermiculite was an issue,” Becker said, adding that the group was looking into the health effects of asbestos exposure. The group also anticipated increased governmental regulations on the amount of asbestos a person could legally be exposed to.
“If the regulations increased, (W.R. Grace) would have to change the process of how vermiculite was processed, which would make the business unprofitable,” Becker said.
McLean will continue examining Becker this afternoon.
– Carly Flandro, posted 3:04 p.m.
Posted: March 16th, 2009 under News.
Tags: Becker, Flandro, Wolter
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Expert witness misled jury, distorted evidence, defense argues
Dr. Aubrey Miller, a toxicologist with the federal government, misled jurors and distorted evidence when he excluded certain information from Libby asbestos-contamination studies and documents, W.R. Grace attorneys argued in court Monday morning.
W.R. Grace lead attorney David M. Bernick and Thomas Frongillo, a defense attorney for Robert Bettacchi, attempted to demonstrate to the jury that Miller had misconstrued reality by showing the jury only the most contaminated air samples and excluding information based on his definition of asbestos.
In his re-cross examination of Miller, Bernick referred to a chart that showed the results of air tests done in Libby, Mont. The tests showed likely asbestos exposure risk of doing different activities, such as mowing the lawn or raking leaves. More than 90 percent of the samples had very low concentrations of asbestos, Bernick said.
But these were not the samples Miller had presented to the jury, Bernick said. In fact, Bernick said, Miller’s testimony focused on just one of nearly 100 samples, choosing one that showed high concentration levels.
“Did you say this was a representative sample (to the jury)?” Bernick asked.
Miller said all the samples, no matter the level of concentration, are representative of different tasks.
“The samples of someone on their knees in the dirt will be higher than someone in a bulldozer,” Miller said.
Bernick also asked Miller about a lawn-mowing air sample taken at Mel and Lerah Parker’s property. The Parkers are Libby residents who purchased W.R. Grace land and operated their business, Raintree Nursery, on it for six years. They eventually moved off their land while the Environmental Protection Agency removed lingering asbestos. The Parkers now have asbestos-related diseases.
Miller had explained to the jury that the highest amount of asbestos that was found in the air was found during a lawn-mowing test. The test indicated the exposure could be classified as a health danger.
But, Bernick said, the test done on the Parkers’ property was actually 16 times lower than the amount Miller discussed.
“You didn’t show this result to the jury at all, did you?” Bernick asked.
Miller said no, and didn’t seem to be familiar with the particular study.
Bernick then calculated that, if the Parkers mowed their lawn five times a year, the effect on their health would not be significant.
“And this (test) was no fancy setup. It was people ordinarily going out, like the Parkers would go out, to mow the lawn,” Bernick said, adding that the testing was done with the Parker’s own lawn mower.
The Parkers have been watching the trial in Missoula and Lerah Parker later said they mowed the lawn more than five times each year.
“We mowed at least once a week, same as everybody else,” she said.
Frongillo finished Miller’s re-cross examination, pointing out that the toxicologist had excluded “important footnotes” from certain documents.
The footnotes described what minerals were in the fibers that were detected in the Libby air, including two that are not officially recognized as asbestos. In fact, Frongillo said, 95 percent of Libby fibers were made up of these two minerals, winchite and richterite. Only five percent of these fibers were made up of tremolite and actinolite, which are recognized as asbestos.
“You didn’t provide that information, did you?” Frongillo asked Miller. “Wouldn’t it have been important to know?”
Miller said he hadn’t provided the information, but it didn’t matter because all the minerals were asbestos.
“You’re a doctor. You’re not a geologist, are you?” Frongillo said, undercutting Miller’s position to speak to the point.
The defense concluded its re-cross examination, and Miller stepped down from the witness stand for the last time. He had been the focus of the trial since he took the witness stand on March 10.
– Carly Flandro, posted 2:30 p.m.
Posted: March 16th, 2009 under News.
Tags: Flandro, Miller
Comments: 2 | [edit]
Monday Morning, March 16, 2009, Continuation of Dr. Miller’s Testimony
Judge Donald Molloy has not yet ruled on motions filed over the weekend but did instruct counsel with regards to Fed. R. Evid. 611. There would be two areas of limitation: (1) bias, and (2) methodology. No leading questions would be permitted in redirect (as is the case with direct) and recross would have to be narrow (limited to issues already raised by the government or impeachment).
Rule 611 controls the mode and order of witness examinations and is meant to promote an effective use of the adversary system. Fed. R. Evid. 611(A) (2008) (Advisory Committee Notes). Under 611(c), a party cannot ask his own witness leading questions. This is a problem properly solved in terms of what is necessary for a proper development of the testimony rather than by a mechanistic formula. Id. A party vouches for his own witness, but only to the extent of matters elicited on direct. Resurrection Gold Mining Co. v. Fortune Gold Mining Co., 129 F. 668, 675 (8th Cir. 1904), quoted in Maguire, Weinstein, et al., Cases on Evidence 277, n. 38 (5th ed. 1965). Under 611(b) cross-examination is limited to topics already addressed in direct, or impeachment of that witness. Practice of limited cross-examination promotes orderly presentation of the case. Finch v. Weiner, 109 Conn. 616, 145 A. 31 (1929).
U.S. Attorney Kris McLean began this morning with redirect of Dr. Aubrey Miller. He was asked to read highlighted portions from exhibits 441(A), 15002, 153, 16023, 632(A), and 5523. (Exhibits will be linked soon.) Several objections were made and sustained during the government’s re-direct. Defense objections sustained included: Speculation, Leading, Asked and Answered, Hearsay, and Not in Evidence. At the close of re-direct, Dr. Miller reiterated that the vermiculite industry had reported health concerns in 1978.
On recross examination, Mr. Bernick questioned the science behind Dr. Miller’s testimony. Mr. Bernick elicited from Dr. Miller that he knew of only one non-worker that had died from an asbestos-related disease, and that she had also smoked for thirty years.
A photograph of the demolition and excavation of the screening plant was offered into evidence as exhibit 18022 with no objection. Exhibit 10107, screening plant cleanup samples, was offered for demonstrative purposes only, and subject to Fed. R. Evid. 104(B). (“When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.”) Here, Mr. Bernick was showing the different level of asbestos that the workers were exposed to, as opposed to non-workers.
In sum, Mr. Bernick accused Dr. Miller of providing misleading information. Several questions were asked with regards to Dr. Miller’s notes, and the scientific data presented at the Daubert hearing.
Mr. Frongillo will be asking further re-cross examination questions subject to Judge Molloy’s limiting instructions.
-Noelle Harrison
Posted: March 16th, 2009 under Law.
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Defense discredits number of cancer cases
The defense stressed that much of the asbestos exposure in Libby lead to “nonmalignant respiratory disease,” not cancer, citing Dr. Aubrey Miller’s previous internal notes to make this point.
Court resumed at 9 a.m. with the prosecution’s re-direct examination of Dr. Aubrey Miller, followed by a limited cross-examination by the defense.
The defense called Miller’s credibility into question a few times throughout the morning, pointing out that he hadn’t read the entire report from Dr. Richard Lemen, a principal epidemiologist for the government, before making previous statements for the case. Miller’s information regarding the Libby asbestos exposure was criticized by the defense as being an “extrapolated modeling number; it’s not actually observed in scientific studies.”
Miller countered by stating that these numbers came from scientific studies. The defense also stressed that a woman who was said to have died from asbestos related disease from Libby’s mine products had been a smoker for “30 to 40 years.”
The morning began with the prosecution presenting document’s on the screen and having Miller read from them. These documents included some from experts advising of the health risks of asbestos and others from Grace indicating some of their Libby employees having tremolite exposure issues.
– Carmen George
Posted: March 16th, 2009 under News.
Tags: , Miller
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“The Logic Tree” – the Cross Examination of James Becker Begins
On cross examination, using mostly non-leading questions, David Bernick attempted to undermine James Becker’s direct testimony by focusing on: (1) what Becker did not know, (2) that Becker was an overly “coached” witness, and (3) that the “logic tree” [government exhibit 57(b)—created by Becker in 1976 and listing the possible legal and financial consequences Grace could face from absestos] was not some secret document constructed by Grace to begin taking steps to eschew liability.
1. What Becker didn’t know (or actually knew)
The most effective defense cross about Becker’s memory occurred when Becker, in referencing his “logic tree” and the asbestos studies he cited there, could not provide the name of whom he spoke to about the studies. “I spoke to someone, someone with knowledge,” Becker stated. However, he could not say whether it was a scientist or simply an executive within the company.
Furthermore, Becker could not remember who received his memos. For example, written in the top right corner of the “logic tree” was a list of names that included Eschenbach and Wolter. However, the writing was not on the original document [defense exhibit 18910] which Becker had created. When discussing the “tree” during direct, Becker had testified the names listed were those who received the “tree.” However when presented with his original, Becker claimed he wasn’t sure if the “tree” was distributed to those listed. Bernick appeared to imply that Robert Locke (executive of Grace Construction Products Division) had scribbled the names in the top right corner of the “tree” to list those who attended a meeting on January 21st, 1977.
2. Becker was a “coached” witness.
The original “logic tree” exhibit was part of a barrage of at least 15 exhibits shown by Bernick to establish that Becker’s company knowledge was limited to only those documents that the government had shown him. The implication was that in meetings with the EPA from 2005 to January of 2009 (most of which Becker could not remember) the government told Becker to say what it wanted to hear.
For example, Bernick showed government exhibit 117 [manual which referenced material safety data sheets] and defense exhibit 6678 [the material data sheets referenced in 117]. The government had shown Becker exhibit 117, but had not shown him exhibit 6678. The implication was that the government did not want Becker to remember that under the material data sheets, Grace had elected to implement an even more stringent standard of asbestos levels then OSHA had proposed (1.0 fiber/ML to OSHA’s 2.0 fiber/ML).
3. The nature of the “logic tree”
In product liability trials, a company may be found liable if it analyzed the costs of improving the product versus the potential injuries and chose to save money despite the potential harm to people. The Ford Pinto is a classic example — Ford executives weighed the number of potential deaths versus the expensive of moving the car gas tank, and elected to accept the potential deaths. Arguably, the government tried to cast Becker’s “logic tree” in a similar light.
During Bernick’s cross, four categories on the tree were specifically addressed: lawsuits, studies, bad publicity, and actions affecting Zonolite business. Under each category, Bernick established that nothing was secret knowledge. For example, under bad publicity Becker had listed the following: NBC and nightly news coverage, and Cafco D criticisms [a fireproofing agent, which used asbestos and was widely criticized by the public]. However, when questioned by Bernick, Becker admitted that most of these issues were widely known. For each category, Bernick attacked the supposedly secret nature of the information, implying the company was not weighing liabilities, but rather tabulating possible concerns.
As Bernick stated, “The tree was for considering the possible degree to which all of these could change, but not a weighing. It was speculation on your part.” To which Becker replied, “I guess so.”
Conclusion
It appears prosecutor Kris McLean was using Becker to establish conspiracy [agreement—based on the names on the “logic tree”] and knowing endangerment under the Clean Air Act. To counter, Bernick continued with the defense’s standard themes: (1) this is a company that did everything it could to comply with and exceed the regulations established by the government, and (2) there were no secrets.
Defense Exhibit 18910
Government Exhibit 57A
–Christopher Orman
Posted: March 16th, 2009 under Law.
Tags: Becker
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Efforts to make Grace vermiculite products safer scrutinized
Government witness and former Grace financial analyst James Becker testified Monday about Grace’s efforts to reduce the company’s vulnerability to potential lawsuits, new government regulation, and bad publicity due to the presence of tremolite asbestos in its products.
Becker was part of an internal Grace committee charged with developing company policy to deal with tremolite-related liabilities in 1977. Later, he was business manager of Grace’s Agricultural/Horticultural Product Division, where he had responsibility for implementing the policies adopted by the tremolite committee.
Under intense cross-examination by defense attorney David Bernick, Becker said he never knew for sure whether efforts to ameliorate the health risks inherent in mining, milling, and expanding vermiculite from Libby, Mont., were working.
“I never knew whether I did a good job or not,” Becker said. “There were always a lot of questions about whether what we were doing was effective.”
At times, Bernick’s rapid-fire questioning led Becker to interrupt him in order to finish his answers. Bernick continued a strategy of questioning whether the prosecution was selectively citing documents that support their case while keeping others from their witnesses and the jury.
Bernick consistently described Grace executives as concerned, conscientious, and action-oriented when it came to lowering risk. Despite his efforts, the internal Grace internal documents in question seemed to confirm their struggle to increase the safety of their products. One document displayed to the jury discussed the results of a Grace study of asbestos exposure at a Grace customer’s manufacturing facility. “There’s no question results are highly disappointing, and bring out short comings in our efforts,” the report read.
Becker, manager of a division that sold vermiculite to several other companies for use in consumer products, testified that nothing the company tried was effective at preventing the release of airborne asbestos from their products, and that Grace’s corporate customers were not amenable to change.
“It was very hard to get the customers to change their products to meet regulations,” Becker said, adding that the products Grace was selling to these customers were not compliant themselves.
As Bernick asked his next question, Becker interrupted again, saying, “Grace worked on it, yes, but the question is, ‘was it effective?’… The data we had at the time indicated there were still a lot of fibers being released.”
Shortly thereafter, and with only a few minutes until the scheduled evening recess, Bernick ceded the floor, telling Judge Donald Molloy he had more questions, but not enough time to ask them.
“How much longer?” Molloy asked.
“I don’t want to test the accuracy of my prediction or the patience of the jury or the court,” Bernick replied.
With that, Molloy added a new item to his list of standard admonitions to the jury, “Don’t forget tomorrow is Saint Patrick’s Day,” and dismissed them for the night. Court will resume Tuesday at 8:30 a.m., when Bernick will again take up his questioning of James Becker.
– Daniel Doherty (posted 6:38)
Posted: March 16th, 2009 under News.
Tags: Becker, Doherty
Comments: 1 | [edit]
Mr. Frongillo’s recross and the Government calls James Becker
Mr. Frongillo’s recross examination focused mostly on attacking the credibility of Dr. Miller’s testimony and the credibility of the documents he had helped prepare for the Government. Mr. Frongillo attempted to persuade the jury that the EPA’s decision to not show the jury all of its original documents was misleading. Mr. Frongillo pointed out all of the differences between the EPA’s draft documents and the final documents that had been presented to the jury. Mr. Frongillo asserted that by not producing this information the Government and Dr. Miller were compromising the Defendants’ right to a fair trial.
As soon as Mr. Frongillo finished his recross examination of Dr. Miller, the Government called its next witness, James Becker. Although Mr. Becker no longer works for W.R. Grace, he was privy to Grace’s financial affairs and worked as a Senior Financial Analyst for Grace from 1976- 1979. Mr. Becker explained in detail how careful Grace was with its accounting. He explained how “every purchase had to be justified.”
As part of the Zonolite Strategic Planning Task Force Mr. Becker and Defendant Jack Wolter were part of a team that analyzed all of Grace’s financial strengths and weaknesses. Among the weaknesses was the fact that the committee recognized tremolite might become a problem. Mr. Becker confessed “everyone knew tremolite was asbestos”, with the hope that it was benign. Mr. Becker explained how Grace could not afford further expansion because it had just spent 6 million dollars at the mill in Libby.
The Government did not have an opportunity to establish a link between Mr. Becker’s testimony and any of the counts in the indictments before the court recessed for lunch.
Paul Nicol 4:48pm
Posted: March 16th, 2009 under Law.
Tags: Becker, Miller
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Decision Tree Forecasts “Unfortunate Outside Events”
After lunch, Assistant U.S. Attorney Kris McLean continued with his direct examination of former W.R. Grace financial analyst, James Richard Becker, Jr. Although many exhibits were discussed and introduced during the direct examination of Becker, a substantial portion of time was dedicated to the government’s exhibits 57A, 57B, and 57C. Becker confirmed he created the documents in all three exhibits while acting as financial analyst for W.R. Grace.
Exhibit 57A is titled “Asbestos Is a Health Hazard: Libby Concentrate Contains Asbestos in the Form of Tremolite,” and was categorized by Becker as a “decision tree” or “fault tree.” Becker explained that this decision tree, which he created on January 20, 1977, was designed to determine the potential outcomes of various decisions that could affect Zonolite business. Based on this brief description McLean moved for admission and did not receive any objection from the defense.
After admission of Exhibit 57A, Becker described the decision tree as having the function of a negative diagram. The first column accounts for “unfortunate outside events,” events that do not per se force Zonolite to change what it is doing, but may cause other events or consequences. The unfortunate outside events listed by Becker primarily dealt with increased knowledge of the hazardous nature of tremolite. The second column focused on bad publicity regarding the dangers of tremolite and asbestos. Becker noted that this column highlighted the possibility that bad publicity could reduce sales of Zonolite products or trigger regulation of Zonolite products. The third column of the decision tree discusses possible lawsuits that could arise as a result of increased knowledge of the hazards of tremolite.
Becker proceeded to discuss the purpose of the trigger line, which branched out from the series of columns listed above. This trigger line led to possible ramifications Zonolite would experience as a result of the unfortunate outside events. W.R. Grace defense attorney David Bernick objected to this line of questioning, citing lack of foundation. Judge Molloy allowed McLean’s questions but instructed the jury that this diagram is merely a hypothetical fault tree and Becker’s testimony should not be interpreted as an admission that any of the hypothetical events actually occurred.
McLean moved on to Exhibit 57 B. Much like Exhibit 57A, Exhibit 57 B is also a “decision tree.” Becker indicated that this decision tree examined what actions would be required if Libby concentrate could not be used for traditional Zonolite products. Repeatedly McLean attempted to question Becker about the use of this decision tree at various task force meetings. However, Bernick prevailed in his foundation objections because McLean was unable to pin down a specific meeting where this decision tree may have been presented to the task force.
The follow up to Exhibit 57 B was Exhibit 57 C. Becker explained this exhibit was an attempt to take the decision trees from exhibits 57 A and 57 B and organize them in a more formal and tabular presentation. McLean moved to admit Exhibit 57 C and received another objection from Bernick as to lack of foundation. Bernick emphasized that McLean had failed to show foundation as to what the document actually stood for. Judge Molloy informed McLean that he needed to lay more foundation. McLean then proceeded to walk through the exhibit column-by-column, asking Becker the who, what and why of every piece of information recorded. McLean once again moved for admission of Exhibit 57 C and Bernick once again objected as to foundation. Judge Molloy admitted the exhibit over Bernick’s objection, but once again instructed the jury that the exhibit is being received for limited purposes, it is a hypothetical document for business objectives and is not evidence of a release of any kind. After admission of Exhibit 57 C, McLean continued to discuss the document in detail, row-by-row, eliciting from Becker the details of this hypothetical chain reaction envisioned by Grace’s task force in 1977.
-Shannon Foley (6:45 p.m.)
Posted: March 16th, 2009 under Law.
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Becker testifies about Grace’s concerns over Zonolite
During his time as a senior financial analyst for W.R. Grace, James Becker was charged with looking into the viability of the Zonolite Company, a division of W.R. Grace, given a variety of hypothetical situations. According to Becker, one of the biggest problems facing the company was tighter asbestos regulations that would force the company to label their products as hazardous.
“This was one of the major problems facing Zonolite,” he said. “If the products were labeled as containing asbestos they were worried that nobody would buy them.”
Government attorney Kris McLean offered several hand-drawn documents as exhibits. Becker had created the planning tools as a member of the Zonolite Strategic Task force in the late 1970s. These exhibits, called “decision trees” by Becker, mapped out a variety of situations and how to best handle possible repercussions. Becker compiled these different hypothetical situations into a report, admitted as government exhibit 57c, which he said was to serve as a basis for making decisions regarding Zonolite’s future.
“I created it so that it could be presented to the task force and used as the basis for possible options,” he said.
Becker said that many of the scenarios pointed to decreasing business for Zonolite. Under the heading of “unfortunate outside events,” Becker’s report cites bad publicity, increased regulation and possible worker lawsuits all leading to a decline in sales and possible criminal actions against W.R. Grace. Such reports inspired testing conducted by Grace at the site of various large consumers of its vermiculite.
Defense attorney David Bernick objected several times during Becker’s testimony, making it clear that he wanted the jury to consider the exhibits strictly as business documents considering theoretical outcomes, not evidence of any asbestos releases. The defense began to cross-examine after McLean wrapped up his direct examination shortly after the court’s afternoon recess.
-Kyle Lehman (Posted 3:55)
Posted: March 16th, 2009 under News.
Tags: Becker
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