UM Grace Case

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.

As Bernick peppered Locke with questions intended to show him as having testified incorrectly, incompletely, or to information outside of his area of knowledge, Locke repeatedly refused to answer questions on Bernick’s terms.  At one point, he replied to a question about whether data from a particular test used time-weighted averages saying, “I can’t answer your question as stated.”

Bernick questioned the government’s representation to the jury of the so-called “drop tests,” saying that they were not real-world simulations, but experimental analogs designed to assess differences between various vermiculite-based materials and treatments of those materials in terms of asbestos fiber release.

“When we talk about these drop tests, the jury should know this was a setup deliberately designed to be severe, correct?” Bernick asked.

“Severe, but not wild and crazy,” Locke said.

“I didn’t ask you wild and crazy; if it were wild and crazy there wouldn’t be any point in continuing, correct?” Bernick asked.

Locke declined to answer the question.

As the afternoon wore on, the exchange sometimes took on a mocking tone. Bernick introduced a 55-page document that the prosecution had not had time to read.  Molloy asked Bernick to wait on the document until after the next break and continue with questions until then.  Bernick then moved to question Locke on the events of 1977.

“We’re turning the page … 1977 was a very important year,” Bernick said.

“I’m glad you’re making progress,” Locke said. “They’re all important years.”

The antagonism continued, particularly when it came to the issue of Dr. Julie Yang, a scientist employed by Grace who testified March 19.  At the time in question, Yang was coordinating the hamster studies, which were intended to prove that tremolite was different from other forms of asbestos with regards to causing cancer.

When Bernick characterized Locke as having had a low opinion of Dr. Yang, Locke demurred, saying he wouldn’t have disparaged her professionalism in public.  Bernick then brought up testimony made by Locke during his civil trial against Grace in which he did just that.

“When you took over research, you rapidly checked the payroll records to see who was still working and you were very happy to see that [Yang] was off the payroll, correct?” Bernick said.

“I was being interrogated,” Locke said, referring to the nature of the testimony.   “It was private … I wouldn’t share it with the world.”

Bernick then displayed a transcript of the testimony, which clearly showed that Locke had not been asked his opinion of Yang directly, but that he volunteered the information as an aside, in response to a different question.

“You do a kind of a drive-by on Dr. Yang, don’t you?” Bernick said.  “You weren’t asked that, you just volunteered it.”

“I guess you’re right,” Locke said.

With that, Molloy called for an afternoon recess, a few minutes earlier than scheduled.  The cross-examination of  Locke continued after the break.

 – Daniel Doherty (posted at 5:00pm)