Former NIOSH Employee Testifies
Today’s post-lunch testimony started with a few closing cross-examination questions of prosecution witness John Kennedy by defendant Henry Eschenbach’s attorney, David Krakoff. Krakoff’s questions for Mr. Kennedy reiterated the defense’s theme that the United States knew all about the asbestos dangers in Libby, meaning there could have been no obstruction of justice.
The prosecution next called Kathleen Kennedy, a NIOSH researcher from around 1980 in West Virginia. Ms. Kennedy’s work had focused on compiling information, beginning in March of 1980, as NIOSH began contemplating a study of vermiculite. She said the study had for the first time focuses on the harmful properties of vermiculite itself, as opposed to previous studies of the harmful effects of contaminants in vermiculite. Prosecutor Kevin Cassidy led Ms. Kennedy through several letters between NIOSH and W.R. Grace attorney Mario Favorito in which he, on behalf of Grace, had opposed the proposed NIOSH study.
On cross examination Grace attorney David Bernick pointed out that this work for NIOSH had been Ms. Kennedy’s first employment out of graduate school, and that she had never before experienced the tug-of-war that can occur between a regulatory agency and a business. Bernick introduced notes Ms. Kennedy had taken at the beginning of the NIOSH investigation, which he used to methodically cross reference with other documents related to the Libby mine, all of which were nearly 50 years old. Ms. Kennedy could offer very little testimony about these documents, as they were nearly 25 years old when she saw them in 1980, a problem compounded by the intervening quarter-century between her handwritten notes and today’s testimony. Bernick’s line of questioning relied on a complex web of documents that confused even him at times, a problem exacerbated by Ms. Kennedy’s inability to remember what went on or what she had seen. As Bernick was wrapping up his cross-examination, which he had abbreviated “in the interest of time,” a weary looking Judge Molloy called for the afternoon break.
–Mark Lancaster (posted 4:45 p.m.)
Posted: April 14th, 2009 under Law.