March 17, 2009
Posts for March 17, 2009, in reverse chronological order. Read from the bottom up.
Mr. Becker Continues on the Offense
Tuesday morning started with the defense continuing cross examination of Mr. Becker. There was a concerted effort in the courtroom to wear green, with Judge Molloy opening the day with a comment that he was wearing a green tie, which was slightly visible above his court robe. But things were quickly brought back to business as Mr. Bernick, counsel for defendant W.R. Grace, continued his examination.
Mr. Bernick fired through letters and memoranda at a breakneck pace, though he would occasionally display Defense Exhibit 10068.2 for reference, which was admitted for demonstrative purposes only. There were a few responses volleyed back by Mr. Becker, but the vast majority were phrased in a way for Mr. Bernick to obtain the response of “yes” or “no” he was seeking. Mr. Bernick attempted to imply that the government had not shared all the exhibits with Mr. Becker, but was generally refuted as Mr. Becker had trouble recalling which documents had and had not been reviewed with him prior to trial. Other memos appeared to compare levels with other plants, but were sped through too quickly to catch exactly what Mr. Bernick meant to establish.
Ms. Kubota, attorney for Defendant Jack Wolter, spent her time with Mr. Becker by carefully demonstrating through Grace letters and memoranda that her client was “moving forward aggressively for dust reduction measures” in 1976-77. Ms. Kubota’s strategy was succinct and clear: she would display an exhibit, highlight and read what she needed to demonstrate her point, then finally offer a concise explanation in plain English. The letters were generally from various people and departments within Grace. They created a trail of steps taken and money allocated from 1976-77 to be used for dust control, and to find ways to bring down exposure levels using OSHA guidelines, with a goal of .2%, or 1/10th of the PEL (Permissible Exposure Limit). Many letters were from Mr. Wolter, with requests and compliance dates through 1976-78. One letter from Wolter requested proposed research objectives, manpower, and dates for engineers to bring fiber levels into compliance. Ms. Kubota successfully used Mr. Becker to tell her client’s version of the facts by solid cross examination techniques, which allow the attorney to lead the witness and tell the story.
Finally Mr. Krakoff, attorney for defendant Eschenbach, used a white board to (presumably) recap the disparity between the corporate reporting chart created by Mr. Becker and a corporate structure chart dated 1976. Mr. Krakoff sympathized with Mr. Becker’s recollection of a company he left “20-25 years ago,” but hounded on areas which were inconsistent.
Mr. Krakoff also attempted to refresh Mr. Becker’s recollection with unadmitted Defense Exhibit 8931, but was rebuked by the prosecution when he read aloud from the document. A document used to refresh the memory of the person testifying is not given to the jury unless it is admitted independently. F.R.Evid. 612.
–Hannah Stone (posted 10:18 pm)
Posted: March 17th, 2009 under Law.
Tags: Becker
Comments: 2 | [edit]
Defense Fights Admission of Documents
The main action in an otherwise mundane afternoon in court revolved around government exhibit 180. Exhibit 180 is a Grace memo from a Dr. Borgstedt to Dr. Yang regarding a draft report of the final results of the Grace hamster study. Borgstedt was reviewing the draft along with a Dr. Smith, and in the memo Borgstedt mentioned to Yang that Smith was substantially revising the draft report.
The government attempted to introduce exhibit 180 during its direct examination of Duecker, who was copied on the memo but did not remember receiving it, and reading it did not refresh his memory. Because Duecker could not remember the document or its contents, defense attorney Krakoff objected to the admission of the memo, and Judge Molloy did not allow the document into evidence.
After the jury left the courtroom, government prosecutor Cassidy again requested that 180 be admitted into evidence. Cassidy recognized that Duecker could not testify about the content of the document, but because the defense stipulated to the authenticity of the memo in a pretrial stipulation hearing before Judge Ostby, he believed it should be admitted into evidence. Stipulation is a time-saving procedure wherein one party admits to the admissibility of evidence prior to trial.
Krakoff responded that the only reason the government wanted to admit 180 was because it highlighted the substantial changes made from the draft report to the final report of the hamster study results. Apparently these changes are damaging to Grace’s case, and Krakoff pointed out that both the draft and the final reports were admitted into evidence; thus, the jury can determine the differences between the reports for themselves. Krakoff argued that the memo was inadmissible for the following reasons: it is highly prejudicial to Grace because Borgstedt is deceased and cannot be cross-examined regarding the memo, it is irrelevant, cummulative, and is inadmissible hearsay. He also argued that just because the defense stipulated to the authenticity of the memo does not mean it is admissible as to its testimony. Mrs. Kubota, representing defendant Jack Wolter, also objected to the memo because Borgstedt is not an alleged co-conspirator, but was only a consultant to Dr. Yang, and thus is not a representative of Grace and his testimony should not be admitted.
Cassidy responded that Federal Rule of Evidence 801(d)(2) allows admissions by party opponents, including agents of a corporation such as consultants. He also argued that the memo was written on Grace letterhead and Duecker testified that Borgstedt was an employee of Grace when he wrote the memo, so it was admissible. Finally, he believed that all of these issues should have been raised at the stipulation hearing, and the defense waived their opportunity to object by not raising their objections at the hearing.
Judge Molloy agreed that the stipulation hearing only covered the source and authenticity of the documents, and the testimonial issue was separate and not included in the defense attorneys’ stipulations. He did not allow admission of 180, but said it would be admitted if the government had an expert witness explain it to the jury.
Molloy also addressed Cassidy’s rather slow method of admitting documents through Duecker, who did not remember any of the documents and could not explain any of the documents to the jury. For over an hour, Cassidy attempted to admit several Grace memos regarding the hamster studies, studies performed by the McDonalds about health problems of workers at O.M. Scott, and attic simulation tests performed by Grace to determine the similarities of tremolite and chrysotile asbestos. The defense objected to these documents on foundation and relevance grounds, and all but one of their objections were sustained. The result of this unorthodox direct examination and the continued defense objections was confusion and frustration among those of us watching the trial (and probably the jury), as well as long pauses between questions while Cassidy was trying to locate documents and phrase his questions to get documents admitted.
Molloy addressed this inefficiency after he dismissed the jury, and said he hoped the government would not go over all of these same documents with Dr. Yang. He suggested that the parties disclose to each other what exhibits they will attempt to admit with each witness before calling that witness. Then the parties could determine if there were any objections prior to calling the witness, and foundation would not have to be laid for each document. Duecker’s direct examination continues tomorrow morning at 8:30.
Katy Furlong (posted at 7:40 p.m.)
Posted: March 17th, 2009 under Law.
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Introduction to Grace’s “Hamster Study”
Assistant U.S. Attorney Kevin Cassidy continued his direct examination of Dr. H.C. Duecker this afternoon. Cassidy led Duecker through several memos and letters from the late 1970’s concerning the “Hamster Study,” a prolonged experiment measuring the health effects of tremolite asbestos on hamsters. Dr. Julie Yang and Duecker, Grace employees during that time frame, provided tremolite and tremolite/vermiculite samples to Farleigh Dickinson University (FDU) in 1976. Researchers at FDU studied of the effects of these samples, providing Grace administrators (who supervised Duecker and Yang) with periodic results. Cassidy used memoranda and letters between Duecker, Yang, their supervisors at Grace, and FDU to frame his questions.
Duecker proved a less than ideal witness for the government’s case. Despite the fact that many of the prosecution’s exhibits were admitted without objection, Cassidy could make little headway with Duecker, as he repeatedly stated that, after “years and years,” he could not remember many details of the correspondence detailed in the exhibits. Cassidy eventually found himself asking Duecker to confirm the contents of each exhibit, earning a rebuke from Judge Molloy. Molloy pointed out that direct examination should consist of questions and answers, not of an attorney reading written exhibits to a witness.
Due to Duecker’s inability to make substantial contribution to the record, questioning proceeded slowly. Cassidy did add several exhibits to the record, which showed that various individual defendants, as well as other non-indicted Grace employees, were periodically informed as more and more hamsters contracted mesothelioma, but he accomplished little else. After Judge Molloy reiterated to the jury that Duecker could only testify about his personal knowledge, and not as an expert, Duecker pointed out that the hamsters in the study had been given the asbestos in a different manner than humans (such as the workers at the mine or the processing facilities) would have ingested it. Thus, there existed significant doubt as to the usefulness of the hamster studies’ prediction of the effects of tremolite in humans, a doubt Duecker had recognized “from the outset.”
Mark Lancaster -posted 6:15 pm
Posted: March 17th, 2009 under Law.
Tags: , Duecker, hamster
Comments: 1 | [edit]
Hamster study showed similarities in asbestos
Under direct examination by prosecutor Kevin Cassidy, chemist and former W.R. Grace employee Heyman Duecker came to a conclusion on the W.R. Grace hamster study as court wound down Tuesday afternoon.
“This study showed me that chrysotile asbestos and tremolite asbestos were very similar,” Duecker said after reviewing a 1978 final report on the hamster study. The witness was involved in a Grace-sponsored study of the effects of tremolite and tremolite-vermiculite on hamsters during the 1970s.
Cassidy spent the rest of the afternoon attempting to stir up Duecker’s memories of various Grace meetings he attended and memos he had either written or received during his tenure as an employee at the company.
Duecker could not remember reading or writing most of the memos the government presented, all of which were dated between 1977 and 1985. In addition, he did not remember conversing with Dr. J.C. McDonald and his wife about health problems pertaining to asbestosis in a meeting with the couple in Montreal in the 1980s.
Duecker’s continual lapse in memory pertaining to government exhibits appeared to wear down courthouse attendees. Most of the jurors appeared either tired or fidgety and one member of the well stretched out and closed her eyes.
Judge Donald Molloy, wearing a green collared shirt underneath his robes, adjourned court at 4:30 p.m. and wished the jurors a happy St. Patrick’s Day. Court is set to resume at 8:30 Wednesday morning with Cassidy finishing his direct examination.
-Nate Hegyi (posted 6:07 p.m.)
Posted: March 17th, 2009 under News.
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They weren’t pets: Chemist talks about Grace’s hamsters
The prosecution spent the early afternoon trying to figure out how many hamsters died in the lab when W.R. Grace and Co. tested the Libby tremolite.
Prosecuting attorney Kevin Cassidy continued direct examination of Grace research chemist Dr. Heyman Duecker Tuesday afternoon, reviewing internal company memos and asking questions about Grace’s preparation of test samples, its testing procedures and communication of the results.
The company conducted the tests because it wanted to know how “the carcinogenicity of the Libby tremolite compared with commercial forms of asbestos,” Duecker said.
Cassidy presented several company memos dating from May 1973 to November 1977 that documented the inception and early progress of the company’s animal testing. Grace wanted to know how lethal the material they were processing was. The company supplied two samples from Libby for the tests; one was 100 percent tremolite and the other was 50 percent tremolite, 50 percent vermiculite.
Tremolite is one of six minerals classified as asbestos by the Environmental Protection Agency and is identified as a hazardous air pollutant under the Clean Air Act.
Duecker, working with scientists William Smith and Julie Yang, used testing procedures similar to those used by other companies that handled comparable material, such as Johns Manville Co., R.T. Vanderbilt and Co. and Johnson and Johnson Co. These companies were also interested in testing for carcinogenicity, and one memo showed that Vanderbilt shared the cost of some testing.
The companies were testing mostly tremolitic talc, which was commercially more common than what was found in Libby. Tremolitic talc is “generally thought of as a platy (non-fibrous) tremolite,” Duecker said.
Release of these test results was controlled by both the company that hired the scientists and the company that did the testing. This was standard procedure, Duecker said.
Scientists injected hamsters with one of three solutions. They injected a control group of hamsters with a saline solution, another group with pure tremolite and a third with the tremolite-vermiculite mixture.
The memos Cassidy showed the jury were between the scientists and Grace executives and covered everything from initial funding to test results. Cassidy asked Duecker what Grace sought to learn from the tests.
“Many people had an interest in learning how tremolite asbestos compared to chrysotile asbestos… with regard to carcinogenic characteristics,” Dueker responded. “Reports such as this… [were] keeping us up to date on the scientific news.”
In one memo from Grace executive Henry Eschenbach, Cassidy alleged that Grace was trying to hand pick a doctor to do their testing. Eschenbach wrote that he wanted a scientist “sympathetic to our position.” Cassidy asked Duecker what this phrase meant.
“I don’t know,” Duecker said.
Cassidy eventually got around to questioning Duecker about the results of the tests. The first progress report from the testing was dated September 7, 1976, and included results that showed no reaction in the hamsters to Grace’s samples.
Three months later, another report showed one hamster in a group of 62 developed mesothelioma. A report six months later in June 1977 showed five cases, and a third report in the fall of that year showed ten cases of mesothelioma in hamsters injected with material from Libby.
As Cassidy rolled through the series of memos, the defense objected several times. The defense often argued that Cassidy’s questions begged answers that were beyond Duecker’s role as a factual witness.
“He’s a factual witness, people, not an expert witness,” Molloy told the court. “He just testifies to things that may have happened on his watch.”
– Will Grant (Posted 6:00 p.m.)
Posted: March 17th, 2009 under News.
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Task Force memos mischaracterized, information protected not hidden, defense says
After a rapid-fire morning, the cross-exam of James Becker continued after the morning break, ending just before lunch. Stephen Spivack, attorney for Robert Walsh made quick work of his point: Becker did not know Walsh, the two never worked together; furthermore, Becker knew nothing about the Consumer Products Division (CPD) during the 1980s when Walsh led the division. Becker also was not familiar with regulatory issues during that time, or Grace’s attempts at developing binding agents.
Mr. Frongillo, representing Robert Bettacchi, started his cross-examination by establishing common ground—both Frongillo and Becker are Bostonians—and then turned his focus to what “secret” the Zonolite Strategic Planning Task Force was actually protecting: finding a suitable substitute for tremolite, discussing the potential closure of the Libby mine, and possibly losing an entire division of CPD.
When Becker started at CPD in 1978 the regulatory environment was changing and more potential changes were in the pipeline. The Court took judicial notice of two documents: (1) the Federal Register noting OSHA lowered the workplace PEL in July 1978 from 5 fibers/cc to 2 fibers/cc, and an Advanced Notice of Rule Making dated October 9, 1975 where OSHA proposed lowering the PEL again to a minuscule .5 fibers/cc.
Frongillo asked Becker about his role as a financial analyst on the task force; Becker explained that with the new lower PELs it was essential to CPD’s operations that vermiculite expanding plants throughout the country come into compliance. If the expanding plants were shut down for OSHA PEL violations this would dramatically affect business. Grace took “compliance seriously and dedicated resources” to the issue, according to Becker. The shifts in the Zonolite business following the new OSHA regulations increased costs and Grace undertook a long-range business strategy study (government exhibit 40A).
Some five weeks after the first meeting of the task force, and with the proposed lower PEL in mind, another task force memo Becker prepared addressed the problems this new .5 fibers/cc PEL could pose—“cost of meeting the fiber counts would be prohibitive,” he wrote. The “fiber counts” referred to in the memo were not, contrary to the government’s characterization, the new 2 fibers/cc PEL, according to Becker.
Posted: March 17th, 2009 under Law.
Tags: Becker
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Chemist Duecker replaces financial analyst Becker on stand
The last two defense attorneys finished their cross-examination of former Grace financial analyst James Becker on Tuesday, Assistant U.S. Attorney Kris McLean made his redirect, and the government called another witness to the stand to wrap up the morning.
Defense attorneys Stephen Spivack and Thomas Frongillo quickly established that Becker had nothing to say about their clients, Robert Walsh and Robert Bettacchi, as he left the company before getting to know either of them.
Frongillo then worked to cast doubt on two particularly damaging statements Becker was shown to have made during the government’s inquiry.
In one memo, Becker wrote that the costs of conforming to a proposed change in OSHA asbestos regulations would be “prohibitive.” At the time, existing OSHA regulations limited asbestos exposure level to five fibers/cc in the work place. Frongillo said that in 1975, a few months before Becker was hired, OSHA proposed a limit of 0.5 fibers/cc. But when the new regulations went into effect in 1976, the acceptable limit was placed at two fibers/cc. Frongillo asked whether Becker’s statement might have been referring to the stiffer proposed limit, and Becker agreed that it may have been the case.
In another memo, Becker discussed possible solutions to the health problems in Libby, including closing the mine and finding other minerals as alternatives to vermiculite. He was very clear to state that the memo reach only as many people as necessary, which the government tried to show as a piece of the Grace cover-up. With Frongillo’s questioning, Becker admitted that these details were kept quiet partly so as not to worry Libby miners about the far-off possibility of losing their jobs.
In redirect, McLean had difficulty shoring up his witness after undermining done by the cross-examination by parade of defense attorneys. With almost every question, the defense objected that McLean was merely re-stating his direct examination. Molloy sustained each of these objections, and at one point said, “remember, this is the redirect.”
After each sustained objection, the courtroom sat in silence as McLean pondered how to proceed. McLean was, however, able to score one hit against the defense in his redirect. In looking at a tally of Grace’s budget to decrease dust at the mine and in expansion plants around the country, evidence brought during cross-examination, McLean asked, “Do you see any mention of asbestos at all here?”
Molloy overruled a slew of objections, saying the document speaks for itself. A simple, “No,” ended Becker’s testimony.
Minutes before breaking for lunch, the government introduced former Grace research chemist Heyman Duecker to the stand. Hired in 1966, Duecker moved into the Construction Products Division in 1971, where he worked to develop vermiculite products until 1986. He remained with the company until his retirement in 1992.
– Alex Tenenbaum, posted 1:25 p.m.
Posted: March 17th, 2009 under News.
Tags: Becker, Duecker, Tenenbaum
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Rapid cross examination of James Becker
Court began this morning with the continued cross-examination of government witness and former Grace financial analyst James Becker. Several defense attorneys questioned Becker throughout the morning, quickly reviewing several documents and memos.
David Bernick, defense attorney for W.R. Grace, completed the cross-examination he suspended Monday evening, asking Becker about several memos outlining test results from Agway. Bernick asked Becker if he had seen several of the documents referred to in his direct examination. Bernick said that the government did not show Becker certain documents. Becker said, “We looked at a lot of documents. I honestly don’t know if they showed this to me or not.”
Carolyn Kubota, attorney for defendant Jack Wolter, began her cross examination working through several memos, establishing a chain of command. “Jack Wolter was moving forward aggressively on dust measure regulations,” Kubota said.
Kubota also showed four categories of dust control measures she said Wolter had implemented in Grace’s Libby operations. She mentioned that the Early Bird Farm is located in her hometown of Ithaca, N.Y., before wrapping up her cross-examination.David S. Krakoff, who represents defendant Henry Eschenbach, began his cross-examination, mentioning that he attended the same college as Becker and graduated a few years after him in 1971.
During his questioning, Krakoff used a whiteboard angled so that courtroom spectators were unable to see, though Becker and the jury had a clear view.Krakoff spoke about exhibit 57a, the first page of Becker’s decision tree. Krakoff asked Becker if the government had discussed with him that other agencies already knew about the effects of tremolite, before ending his cross-examination.Court recessed for the mid-morning break at 9:57.
–Kalie Tenenbaum (posted 10:15 a.m.)
Posted: March 17th, 2009 under News.
Tags: Eschenbach, Wolter
Comments: 1 | [edit]