UM Grace Case

John Kennedy, former general counsel for OM Scott from 1973-1984, a customer of WR Grace, took the stand after the morning break. His testimony was methodic and tight as he told the story of how OM Scott came to be involved with asbestos during his time at the company.

Kennedy explained that a local doctor called to report that he had encountered three patients with blood plural effusions, and another with a related illness, but not full-blown bloody plural effusions. The only connection between the four was their employment at OM Scott. Kennedy, in his role as counsel, went about asking for help to answer what he described as “more questions than answers” raised by the information. OM Scott contacted the EPA and OSHA, as well as WR Grace both seeking and sharing information. Eventually the safety sides of OSHA and NIOSH sent a team, from the University of Cincinnati, to study the situation at OM Scott’s plant and make recommendations.

Judge Molloy issued a limiting instruction, as requested by the defense, reminding the jury that neither the testimony of Kennedy nor the exhibits he was discussing could be used as evidence of a conspiracy to knowingly endanger, did not constitute evidence of a release, but might be, subject to “tying up” the Government may do, considered as knowledge of Grace.

On cross-examination, David Bernick went through the major questions Kennedy referenced when he said the issue of blood plural effusions “raised more questions than answers.” Some of those questions concerned the source of the exposures (pre-OSHA exposures, and potential chemicals included in product) and was a similar problem being reported in other plants using the ore (both expanded and in concentrate form).

Kennedy said there were several contacts with Grace during this time period seeking answers and guidance to these questions. Henry Eschenbach responded to one of the requests, telling OM Scott that no bloody plural effusions were found in their workers in similar occupational settings. See Exhibits 13170 (Request for information sent to Grace) and 190 (response from Grace to OM Scott re available information). Kennedy agreed that while Grace had no similar evidence, it did give a “balanced view” by telling OM Scott of other literature with a contrary point: that workers exposed in similar occupational settings were showing bloody plural effusions. Chip Wood also contacted OM Scott to follow-up on prior telephone calls and requests for information, including providing offers to resolve the asbestos issue and retain OM Scott as a client.

At the same time, OM Scott was also communicating with the EPA, OSHA and NIOSH. Bernick asked Kennedy to describe what information OM Scott was reporting to the government that was also reported to Grace or that Grace was aware was being reported to the government. The list included information that concentrate contained some vermiculite, that some handing of the expanded product caused releases, and that tremolite containing asbestos could be hazardous.

Bernick closed his cross by reiterating that Grace knew OM Scott was telling the government that there was reports of bloody plural effusions in some workers; that there potentially were higher, earlier exposures and reports of asbestosis in older workers; that other chemicals used could raise questions; that samples were taken by OM Scott and analyzed by Grace; and that there was a potential problem at OM Scott.

Judge Molloy recessed for lunch. David Krakoff, attorney for Henry Eschenbach, will likely take over on cross-examination of Kennedy this afternoon.

–Kirsten Madsen (posted at 3:26 p.m.)