UM Grace Case

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a letter that would be sent to the Mine Enforcement and Safety Administration (later MSHA), in which the company rescinded its claim to lenient regulation.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)