UM Grace Case

Robert Locke testified this morning that “there was no solution to the problem up at Libby—no matter what you did.”

Continuing on direct examination, government attorney Kris McLean took Locke through multiple studies and tests done by W.R. Grace to reduce the airborne concentrations of asbestos from Libby vermiculite. The two discussed drop test sampling, summaries of Dr. Yang’s tests, tests from product users and workers, and salting tests. McLean and Locke also went through testing of horticulture products, the Binder Program—which tried out water, methocellulose, “water glass,” soybean and mineral oils, and asphalt and silicone emulsions—electrostatic fogging attempts, and separation and removal endeavors. Study after study, test after test that McLean and Locke went through showed the same general result: there were negligible improvements with diminishing returns, and even the smallest levels of tremolite were still releasing asbestos in high airborne concentrations.

Locke also discussed an employee information handout prepared by Johns-Mansville titled “What You Should Know About Tremolite and Your Health” and a memo (government exhibit 158) he prepared detailing those concerns. McLean had Locke highlight each concerning statement, numbering at least seventeen, and what the specific concern was. For example, concern #4 referenced a statement that when correctly used most products will not produce levels high enough to be hazardous. In response, Locke wrote, “‘Most?’ Not all? … What does ‘correctly used’ mean? … I thought we went through this once.” Adding today, did Grace have instructions for “correct use”? At concern #17, the handout asks “Do you have any questions regarding the health risks of working with vermiculite?” leaving a Yes or No blank to be checked off. Locke wrote “Do we believe health risks are always associated with asbestos? … [The statement] means that and not that health risks are insignificant.” (Emphasis added.) Locke explained the question presupposes an association between vermiculite and health risks.

Just before the lunch break McLean and Locke started down the road to discuss the proposed NIOSH study in 1980. Prior to the proposal Locke had sent around a memo regarding a completed NIOSH study of Governor Mine in New York. Following that study NIOSH recommended warning labels be put on the mine’s products, and the recommendation was implemented. This was significant, said Locke, because NIOSH is not an enforcement agency, and before the Governor NIOSH had not made enforcement or regulatory suggestions part of its epidemiological concerns. This marked a change from NIOSH’s prior pursuit of science, Locke explained. This line of questioning promises to be important to the government’s case.

With these documents McLean is presumably attempting to illustrate Grace’s knowledge of the propensity of vermiculite to release asbestos, the danger associated with release, and that all attempts to lower release have been and would continue to be failures—effectively, laying the groundwork for the mental statement elements.

After excusing the jury for lunch, Judge Molloy took up arguments regarding the government’s proposed exhibits 626c and 626d. These documents, explained David Krakoff, attorney for Henry Eschenbach, were from Locke to his attorneys regarding his employment lawsuit. Krakoff characterized the documents as being “on their face protected by the attorney-client privilege,” “rank hearsay,” and “rambling, angry, critical … in quite colorful language.” Krakoff requested that Judge Molloy issue a subpoena duces tecum (a demand for the production of documents) for all documents regarding the underlying the subject matter addressed in the exhibits from any attorney Locke consulted. McLean explained that the documents had been turned over to the government by Locke as Krakoff suspected, but would not be offered as exhibits unless the defense attacked Locke’s credibility. In that situation, McLean said, they would be used to show a prior consistent statement under FRE 801(d)(1)(b)-–to show that what Locke said before trial is precisely what he said at trial. Judge Molloy said he would issue the proposed subpoena duces tecum the defense offered. Judge Molloy also issued the subpoena duces tecum requested by the defense yesterday. He then heard lead counsel in chambers on an undisclosed issue and recessed court until 1:15 p.m.

–Kirsten Madsen (posted at 3:00 pm)