March 25, 2009
Below are the posts for March 25, 2009, in reverse chronological order. Please read from the bottom up.
Bad for Business
Defense Attorney David M. Bernick concluded his cross-examination of former Grace employee Robert Locke this morning.
Through a series of statements to which Locke replied, “yes,” Bernick constructed an alternative explanation for Grace’s purposeful delay of the NIOSH study. Bernick stated that Grace executive vice president Elwood “Chip” Wood and W.R. Grace had opposed the study because NIOSH wanted to study vermiculite (instead of tremolite). See Defense Exhibit 230, the NIOSH proposal.
Grace opposed the study because of a “justifiable concern” that a NIOSH study of vermiculite would only stigmatize the product and the vermiculite business. Bernick stated that W.R. Grace would have been more than happy to participate in a study focused on tremolite; and in fact, when NIOSH changed its proposal to study tremolite, the executives at Grace immediately encouraged the study.
Bernick concluded with a string of examples indicating that the Government has known about the hazards of the Libby tremolite since the 1950s, but has failed to take any action for the last 60 years.
– Audrey Schultz (posted 1:20 pm)
Posted: March 26th, 2009 under Law.
Tags: Locke, NIOSH
Comments: 3 | [edit]
Bernick argues Grace’s hamsters irrelevant
Defense attorney David Bernick spent the morning using his cross-examination of Robert Locke to argue that publication of W.R. Grace’s hamster study was unnecessary. It merely corroborated existing studies that showed tremolite to cause cancer in laboratory animals, he said.
Similar studies, such as the Johns-Manville study, which Locke said he knew about, had been published, as had another done by Johnson & Johnson. Since Grace’s study simply stated the already-known fact that tremolite was carcinogenic to hamsters, there was no need to parrot others’ results, Bernick said.
Besides, Bernick argued, classified studies were the norm at large chemical corporations. In one memo brought into evidence, Locke expressed surprise at Johns-Mansville scientists being allowed to publish their findings, saying,”I wonder what their contracts stipulate …”
Bringing new evidence for his cross-examination, Bernick said that the company had changed its attitude toward proposed stiffer regulations. As late as October, 1976, Grace officials had been openly pushing agencies like Mine Safety and Health Administration and Occupational Safety and Health Administration for leniency in tremolite regulation, arguing that since it wasn’t intended for commercial use, but was merely a contaminant, it shouldn’t be regulated like commercial asbestos.
Then in May, 1977, Locke revised a letter that would be sent to the Mine Enforcement and Safety Administration (later MSHA), in which the company rescinded its claim to lenient regulation. Bernick noted that the letter did not mention the hamster study, but rather cited human deaths in Libby and a “changing regulatory climate” as the reason they did not intend to argue against tighter regulation. Locke, begrudgingly admitted this change, but Bernick talked over him as he tried to comment further. Locke was effectively silenced, and Bernick said that the heightened sentiment of cooperation did not hinge on lab tests, but on concrete, experiential realities. Therefore, he argued, the hamster test was irrelevant in directing health and safety regulations.
The final interchange served as an exclamation point to the line of questioning Bernick had been pursuing all morning. While he was able to make some inroads on the government’s direct examination, Bernick also asked minor questions in an edgy tone. Looking at one tremolite study that had been published in a small medical journal, Bernick pressed Locke, saying, “Was this published or not?” Locke, never having read the article and seemingly frustrated by Bernick’s tone, said, “You’re showing me words on a screen. I don’t know about publication.”
The jury did not seem to respond in any negative way to Bernick’s questioning, though when Locke would snap back, a few would grin. Molloy, still suffering from a hoarse throat, called for a recess just before 10 a.m
-Alex Tenenbaum (posted at 12:10)
Posted: March 26th, 2009 under News.
Tags: hamster, Locke, Tenenbaum
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Bernick Continues Cross of Locke
After a brief recess, Grace continued its cross-examination of Locke. The questioning began with a bang. After Bernick assured Locke that the questioning for the rest of the day would be brief, Locke responded that “Lawyers’ kids gotta eat too.”
Bernick responded with a sharp criticism of Locke, in which he attempted to portray him as a man who often flies off the handle, using three specific tactics: (1) painting him as a racist (at least to a certain degree) through evidence that he criticized Borgstead, a consultant of Grace, because he was a German; (2) evidence that he called a NIOSH researcher a “miserable little guy”; and (3) evidence that Locke was an elitist who attended Harvard and often made light of medical schools that weren’t in the top tier of medical schools.
Grace attempted to bring out Locke’s personality as a loose cannon to convince the jury that his free volunteering of information to the government was an unnecessary exaggeration. Throughout the cross, Locke was very calm and collected (unlike his alleged reputation) and unlike the sparks that flew in other cross-examinations in this trial, the most evasive answer Locke gave was “I don’t remember,” or “I don’t recall,” although at one point in the cross-examination, he expanded on an “I don’t know” answer to show that he couldn’t possibly know anything that the tremolite division of Grace was doing in the 1980s, since he had been transferred to a different department.
In his attempt to show that Grace acted reasonably, Bernick carefully phrased his questions to Locke, eventually getting him to admit that Grace reduced the level of tremolite in its expanding plants across the country to conform with government standards by 1978.Bernick presented further evidence, through the admissions of Locke, that Mr. Wood (known affectionately as “the chipper” or “Chip” to Locke) instituted a tremolite policy at Grace consisting of three parts: (1) a commitment to not expose consumers to hazards without precautions by minimizing unreasonable risks with use of products, (2) a company policy that asbestos count limits promulgated by government agencies would be the guide to whether a health risk existed, and (3) a policy to provide all government agency inquiries with straightforward, candid responses.Bernick also strongly criticized the drop test through Locke.
This test was used extensively by Grace to find the concentrations of tremolite asbestos.In an otherwise dry cross examination, Locke replied to a question from Bernick by saying, “Well, I guess they dropped the drop test,” to which Bernick laughed, “I thought that was going to be my line, Doctor!”
– Michael Doggett, 11:06 p.m. (Edited 12:36 p.m.)
Posted: March 25th, 2009 under Law.
Comments: 3 | [edit]
The hamster test did not matter to Locke, Bernick asserts during cross-examination
Robert Locke thought that W.R. Grace’s tests on hamsters exposed to asbestos were “a snore,” defense attorney David Bernick said during his continued cross-examination of Locke. Bernick referred to a Society of Occupational Health Conference which focused on asbestos’ dangers to humans, “people news” which was much more captivating than Grace’s presentation on the hamster test during the conference, Bernick said.
“The hamster study was a little lab study that you didn’t care about, frankly, no one cared about,” Bernick said.
Bernick also continued to question the scientific validity of “drop test” studies that Grace used to measure airborne concentrations of asbestos, studies which the prosecution explained to the jury earlier on. Bernick pointed to past witness and chemist Julie Yang’s criticism of the drop test.
“It was a test of the real world. It was never intended to be the real world,” Locke replied.
As Bernick continued to hammer away at the test, Locke later added, “I believe they dropped the drop test.”
“I think that was going to be my line,” Bernick replied, laughing loudly.
Bernick also described Grace’s decision to end its opposition of OSHA regulations in 1977, a decision that Locke didn’t recall knowing about. Bernick argued that Grace was going to accept its tremolite being treated “exactly the same way” as other material categorized as asbestos, and the defense attorney aggressively asked whether Locke knew the new “company policy.”
Appearing agitated, Locke reminded Bernick that he had moved to a different position in the company and was less involved in “the tremolite business” by the late 1970s.
“I understand that…I guess my question was a very modest one,” Bernick said in a sarcastic tone.
Bernick also displayed a chart to show what he described as a drop in asbestos fiber concentration in Libby ore over time. According to Bernick, the Mine Bureau once sent a letter to defendant Jack Wolter commending Grace for operating the “cleanest” mine they had ever seen in Libby.
As Bernick continued questioning, Locke sometimes replied that he could not comment on “the time in question” or did not remember certain events.
Court was adjourned at 5:00 p.m., and Judge Molloy again reminded jurors to avoid talking about the case with friends, family or the media. Locke’s cross-examination will continue tomorrow at 8:30 a.m.
–Ryan Thompson (posted at 7:20 p.m.)
Posted: March 25th, 2009 under News.
Tags: Locke, Thompson
Comments: 2 | [edit]
Bernick and Locke spar over test data, testimony
Continuing his cross-examination of Robert Locke, defense attorney David Bernick attempted to cast doubt on the completeness of Locke’s previous testimony, his general recollection of his own words and writings, and the relevance of various studies reviewed by Locke and prosecutor Kris McLean under direct examination.
Some of the most antagonistic exchanges seen so far in this trial began as Bernick and Locke discussed the changing state of government asbestos regulations in the 1970s. Bernick showed the court a chart that depicted the tightening asbestos exposure standards of various government agencies at the time, and reviewed the information year-by-year. He characterized the regulations as “something of a moving target,” an assertion that Locke agreed with.
That was one of the few issues on which the two agreed.
Displaying a government exhibit used in Locke’s earlier testimony, a memo from Locke saying the company had “wrongfully assumed that the new Libby mill … would solve the fiber problem,” Bernick asked Locke if he knew that the Libby operation was in compliance with OSHA standards in 1976.
“No,” Locke replied. He then went on to say that the document in question was referring to a fiber problem in expanding plants that used Libby vermiculite. The expanding plants were an area of direct responsibility for Locke at the time, while the Libby operation was not.
Bernick asked Locke if he had meant to suggest to the jury that the Libby operation had a compliance problem at that time. Then he asked if Locke knew whether or not Libby had a compliance problem at all.
“You’re talking about …,” Locke began, but Bernick, searching for a yes-or-no answer, interrupted him.
“The Libby Mine and Mill,” Bernick said, “Was it out of compliance in 1976 – did you know?”
“I guess I can’t answer that question,” Locke said. Read more »
Posted: March 25th, 2009 under News.
Tags: Doherty, hamster, Locke, Yang
Comments: 2 | [edit]
Locke continues sparring with Bernick
After lunch, Robert Locke continued to spar with defense counsel David Bernick during cross-examination. While the questioning was punctuated by a few testy exchanges, the cross-examination was largely plodding in pace and specifics.
Bernick continued to emphasis a theme that he has been developing with other government witnesses, namely that the witness—in conjunction with the government—has not presented the complete picture to the jury. Several times, Bernick challenged data that Locke testified to on direct examination as being misleading. For instance, as to the “drop test,” Bernick challenged Locke’s testimony presenting exposure data that was not “time weighted,” and therefore not consistent with OSHA standards. Locke refused to be boxed in by Bernick, explaining that he told the jury that the data was from momentary sampling and never suggested otherwise.
At another point, Bernick attemped to refute Locke’s direct examination testimony that he did not believe that the wet mill would bring Libby into compliance with regulations. Bernick asked Locke whether he was aware that the new wet mill brought Libby into compliance. Locke stated that he did not agree with that position. In an attempt to spring his trap, Bernick presented a memo from Mr. Wright, a WR Grace employee, stating that the “new mill” had brought Libby into compliance. Locke refused to let Bernick mix apples and oranges; he pointed out that the Wright memo was not talking about mills, but with expansion plants. Bernick quickly moved on to another topic.
These skirmishes were not, however, Bernick’s main thrust during cross-examination; Bernick spent considerable time questioning Locke about the hamster study. Bernick repeatedly asked Locke what the purpose of the study was. Locke repeatedly stated that the study was designed to explore how cancerous tremolite asbestos was compared to chrysotile asbestos. Bernick stated that the purpose was not to show that tremolite was safe for humans, because everyone already knew that tremolite was dangerous to the Libby workers. Locke disagreed, stating that it “might have been an outcome of the study, but it was not an outcome.” Bernick continued, asking Locke whether he was aware that OSHA—in 1977—considered all asbestos dangerous to human life and that OSHA was not going to differentiate between types of asbestos. Locke agreed to this. Bernick then closed this line of argument with asking Locke whether the true purpose of the hamster study was to provide support for WR Grace’s efforts to persuade OSHA to treat tremolite asbestos differently than chrysotile asbestos. Locke ultimately agreed that this was a purpose for the hamster study.
With this line of questioning, Bernick seemed to be setting up an argument that WR Grace did not obstruct the government when it did not provide the hamster study to the government. Bernick continued to characterize the hamster study as ammunition to influence the regulatory environment as opposed to a safety study.
–Andrew King-Ries (posted 3:45 p.m.)
Posted: March 25th, 2009 under Law.
Comments: 1 | [edit]
Direct Examination Concludes, Cross-Examination Begins of Former Grace Exec
U.S. Attorney McLean continued direct examination of former Grace executive, Locke, and submitted Exhibit 581 into evidence. Although Mr. Locke’s explanation regarding it was limited by evidentiary objections, the letter was fairly short and easy to understand. It was a letter from 3M about the offer. Money was not the issue regarding its reservations, it was the liabilities. 3M did not want to acquire any liabilities associated with Grace. Exhibit 586 was the last to be admitted during Locke’s direct. It showed that there was no counter-proposal, and that 3M did not go through with the acquisition.
Mr. Locke also testified as to a conversation he had with Mr. Bettacchi regarding the sale of the screening plant to the Parkers. In response to Locke’s concern with the property, Mr. Bettacchi allegedly responded “caveat emptor” (a commonly known term in Latin meaning “buyer beware” – that buyer has the responsibility to research the property).
Direct testimony concluded with discussion of Mr. Locke’s leave from Grace. Mr. Locke stated he left for different reasons, including Grace’s reorganization, increased pressure, and new area of work. A ‘Separation and Release Agreement’ which Mr. Locke never signed was admitted as Exhibit 626B.
Defense Attorney Bernick began cross-examination of Mr. Locke by going over his connection to Grace. Questions generally revolved around impeachment. Mr. Bernick focused on documents Mr. Locke retained without permission after leaving the company, his personal lawsuit with Grace regarding the employment severance, his communication with a Boston Newspaper, and communications with a plaintiff asbestos firm.
Mr. Bernick admitted Exhibit 6938.141 which is the transcript of sworn testimony in 2004 in Missoula, Montana, regarding Locke providing documents and meeting with the government. The transcript states something about “having fun” with the documents. Cross-examination of Mr. Locke will continue after lunch.
– Noelle Harrison
Posted: March 25th, 2009 under Law.
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Bernick puts Locke under fire
Prosecuting attorney Kris McLean finished his direct examination of Robert Locke Wednesday morning, and made way for defense attorney David M. Bernick, whose demonstrative charts, colorful necktie and cheerful greetings added life to the quiet courtroom Wednesday afternoon.
McLean questioned Locke, a construction manager for W.R. Grace for more than 20 years, about the possible sale of the Libby mine to 3M in the late 1970s. Locke said that a condition of the proposed sale included the transfer of environmental liabilities from Grace to 3M, and each company hoped the other would assume those liabilities. When 3M rejected Grace’s price of the Libby mine and didn’t present a counteroffer, Grace became more concerned with the risks the company faced by continuing operations in Libby.
“Getting out of Libby was a recurring subject,” Locke said. “I had real bad vibes about the site from a liability standpoint.”
McLean then addressed Locke’s severance from Grace in 1998. “It wasn’t a very favorable situation, was it?” asked McLean.
“No, not for me it wasn’t,” Locke said.
McLean focused on a release and separation contract between Locke and Grace. In this agreement, Locke was prohibited from discussing his work for Grace. If Locke did talk about what he did for Grace, the contract said that Locke would have to repay all money paid to him by Grace and forfeit any future payments from the company.
“I didn’t want to sign it,” Locke said. “I didn’t want to touch it with a 10-foot pole.”
Locke’s severance from Grace was also the focus of Bernick’s cross-examination. When Locke left Grace, he took with him certain company documents, which Bernick suggested Locke was not authorized to do. Is it true that no one you directly worked with or was familiar with your work told you that you could take those documents, he asked Locke. Read more »
Posted: March 25th, 2009 under News.
Tags: 3M, Grant, Locke
Comments: 1 | [edit]
Ailing Molloy restricts Locke testimony
Robert Locke was not allowed to include in his testimony the contested evidence consisting of memos discussing Monokote 5 and 6 and the summaries of Grace meetings from July 1 and 2, 1986. Judge Donald Molloy started the day with his ruling, and Locke took the stand with what evidence Molloy did allow.
Continually clearing his throat, Molloy said the Monokote and meeting evidence was confusing and would not get the court anywhere. He then invited the jury in, said he had caught something but would do his best to last another two days and joked that his gravelly voice was not the result of yelling at the lawyers.
With Locke on the stand, the prosecution introduced a number of letters and memos into evidence as the prosecution continued to try to prove a conspiracy to keep secret the health risks of some Grace products.
The first was a 1977 letter from Locke to his successor Fred Eaton about policies and ongoing activities of the construction products division. One item in the letter was labeled “Petition submittal.” Locke explained that referred to the Gregorio Act in California that required plant modifications and workers’ health monitoring for products containing tremolite. Locke said Grace was worried that California would find out about the tremolite in the Libby vermiculite so they hired George Clyde, a legislative lobbyist in California.
Another section of Locke’s letter listed the points why Grace should be excused from the requirements. One point read, “Vm (vermiculite) has ‘de minimum’ respirable tremolite.” Another read, “respirable tremolite is very different from commercial asbestos.” When asked about the points, Locke said the strategy was to get people so buried in words and sidetracked onto other subjects that they would drop the issue.
“Basically, we would try to talk them to death,” Locke said.
When asked what the second point meant, he said, “Our asbestos was different from real asbestos.” Read more »
Posted: March 25th, 2009 under News.
Tags: Locke, Lundquist
Comments: 1 | [edit]
Direct Examination of Mr. Locke Continues
Wednesday morning began with prosecution attorney Kris McLean continuing direct examination of Mr. Locke, a former construction manager for W.R. Grace. The direct examination focused mostly on a letter Mr. Locke sent to Mr. Eaton in February of 1977 (government exhibit 66). The letter was also copied to Favorito, McCord, and Wolter. This multi-page letter outlined the policies and activities regarding Grace’s construction products. Mr. McLean proceeded by laying a foundation for the letter. After admittance of the letter into evidence Mr. McLean focused on several specific sections of the letter.
Section two of the letter, titled Petition Preparation California, addressed adverse publicity among contractors regarding tremolite. Mr. Locke testified there was a concern that contractors would become aware that products contained tremolite. Section three: Petition Preparation Federal addressed arguments that could be made as to why Grace should not be affected by current regulations. It stated that vermiculite has de minimus respirable tremolite. Mr. McLean elicited from Mr. Locke that the letter never stated that vermiculite releases asbestos. The section also discussed that published studies show a very low hazard with tremolite. Mr. McLean pointed out that the hamster study was unpublished and seemed to suggest that is why the section only referenced published studies. Mr. Locke testified that he was paid to make the best possible arguments in support of Grace’s construction products.
Section 11: Form 20 OSHA Request addressed material safety data sheets, which disclose hazardous contents in a product, and health warnings. Mr. Locke testified that past policy was the fewer form 20’s the better. In regards to Section 12: General Inquiries, Expanded, Mr. Locke testified that it was preferred that Grace answer inquiries to avoid contact of regulatory agencies, which might heighten scrutiny of Grace and its products. Section 13: General Inquires, Ore addressed the use of Grace mined ore sold to third parties. Mr. Locke testified that past policy was not to have documented evidence of specific internal problems, analysis, or consulting engineering assistance on record regarding communications with third parties who purchased Grace ore. He testified that if documented, customer responsibility for conditions of a plant might migrate to Grace. Thus, Grace wanted to minimize documentation. Section 31: Farleigh Dickinson addressed the hamster study. Specifically, it suggested that the dosage level initially used was too high and Grace may want to start another series of tests at lower a dosage level.
Mr. McLean’s questioning seemed designed to show that Grace was trying to downplay the dangers of its products to the public. Numerous objections during the direct examination by the defense were overruled by Judge Molloy.
-Robert Lishman
Posted: March 25th, 2009 under Law.
Tags: hamster, Lishman, Locke
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