UM Grace Case

Between the morning break and the lunch break, the cross and redirect examinations of Dr. Duecker were conducted and Duecker was released from his subpoena. David Krakoff, defense attorney for Eschenbach, continued his cross examination of Dr. Duecker, previously head of the R&D department at Grace. Eschenbach, one of the five Grace executives charged in this case, was Director of Health, Safety and Toxicology at Grace, and the Grace executive who commissioned the hamster study, among others.

Krakoff’s questions seemed aimed at bolstering Grace’s defense that Grace had no duty to inform EPA and other federal agencies about the dangers of tremolite asbestos because they already knew. Krakoff introduced Defense exhibit 8925, admitted without objection, which consisted of a notice of a December 1977 Conference on Occupational Exposure to Fibrous and Particulate Dust, organized by the Society for Occupational and Environmental Health along with a couple of letters from Dr. Smith to Dr. Duecker and from Duecker to E.S. Wood suggesting that two or three Grace employees, including Julie Yang, attend the conference. Mr. Wood agreed. This exhibit, although admitted without objection was one that the prosecution had never seen, and while Mr. Cassidy took a moment to quickly scan the four page document, he didn’t have time to consider the use to which Krakoff would put the exhibits. When Krakoff began reading from the conference advertisement, Cassidy objected on grounds that Duecker was not at the conference and could not speak to what went on there. The objection was overruled on grounds that the exhibit was already admitted. Krakoff read that tremolite was a major focus of the conference and that the EPA and other federal agencies would take part.

Krakoff’s last questions to Duecker were “mesothelioma was found in the hamsters right?”, answer, yes; “mesothelioma is a marker disease for tremolite exposure, right?”, answer yes; “OSHA concluded in 1972 that exposure to asbestos can cause mesothelioma, right?”, answer, yes.

Next, Carolyn Kubota, defense attorney for Jack Wolter, VP of Grace’s Construction Products Division (CPD) cross-examined Duecker. Her focus was that Wolter worked diligently and successfully to reduce the asbestos contamination in Zonolite as VP of CPD. Her first exhibit, entered without objection, was the bulletin board posting that Grace had hired Jack Wolter to be responsible for Zonolite manufacturing and engineering activities. Kubota elicited from Duecker that Wolter was a mining engineer, not a scientist, industrial hygienist, or doctor and that he was responsible for Libby plant, Enoree, SC plant, the expansion plants and polystyrene plants for Grace.

Kubota entered a line of questioning seemingly designed to indicate that Wolter, while copied on many internal memos, may not have read them all and therefore could not be held responsible for knowledge of their contents. Apparently Mr. Vining instituted a policy where Grace executives would cc all the other vice presidents in order to keep everyone informed of what everyone else was doing. Kubota asked Duecker if he read all the memos which did not pertain to his department, and Duecker said no, he didn’t read all of them.

Kubota finished by offering exhibits over no objection showing that Wolter worked to reduce the tremolite concentration in end products to trace or no contamination. Her final question to Duecker was that he worked for CPD from 1971 to 1992, was involved in many of these issues and got his name on many documents, but he never thought he was in the middle of a big conspiracy, that Jack Wolter intentionally harmed Grace customers, or intentionally harmed Grace workers, did he? Duecker answered no.

On redirect, Kevin Cassidy addressed issues from Krakoff’s and Kubota’s cross examination relating to when the hamster studies were performed (after the wet mill was operating), that Grace performed studies in an attempt to understand the toxicity of Libby tremolite, that Duecker read all the memos relating to his department and that Wolter was responsible for the Libby mine.Cassidy’s questions were repeatedly objected to on “form of the question,” initially by Bernick, but soon Krakoff followed suit. Examples of improper form are leading questions or questions which assume facts not in evidence or that have no foundation. While the specific problem with Cassidy’s question was not stated, these seem to be what Bernick and Krakoff were objecting to.

After Duecker was released from his subpoena and the jury was excused for lunch, Molloy read Federal Rules of Evidence 602 and admonished both sides that he was seeing evidence admitted through witnesses who couldn’t remember the documents. As a last bit of housekeeping before lunch, Molloy decided that the fourth page of Govt exhibit 331, handwritten notes attached to a memo, would not be admitted unless the prosecution could lay a proper foundation with a witness who knows who wrote the notes.

–Janet Harrison, 7:30 p.m.