UM Grace Case

Chipping away at their list of witnesses, government attorneys called three people to the stand in the United States v. W.R. Grace Tuesday afternoon.

Kathleen Kennedy tilted her head as she watched W.R. Grace lead attorney David M. Bernick scrawl on a whiteboard.

Kennedy worked for the National Institute for Occupational Safety and Health from from 1979 to 1981 as an epidemiologist. While she was there, she was part of a team investigating the health effects of W.R. Grace vermiculite at its sites in Libby, Mont., and Enoree, South Carolina.

They started the investigation when the Mine Health and Safety Administration asked them to look into the pleural effusion illnesses of employees at O.M. Scott, an agricultural company that produced a soil additive with vermiculite in it.

“The ultimate goal (of the investigation) was to protect workers from exposure to substances that could cause them harm,” Kennedy said.

W.R. Grace top employees didn’t like the idea of an investigation. In fact, Bernick said that “Grace stated its objections in black and white.”

“Not only in black and white,” he said, “But at length in letters.”

One NIOSH document said that the team needed to study “pure” vermiculite to see if it was causing the illnesses in O.M. Scott workers.

Bernick asked if “pure” meant vermiculite that was not contaminated with asbestos. If so, the vermiculite at Libby should not have been tested, he said.

That was one of W.R. Grace’s main objections. They saw no reason to test vermiculite with asbestos because they already knew asbestos was dangerous. Bernick also said that the company was against the investigations because the results could “stigmatize” their vermiculite product.

“By pure, we meant not competing with other exposures,” Kennedy said.

There were many different minerals in the fertilizer that O.M. Scott employees worked with, so even if it were tested and found hazardous, it wouldn’t necessarily pinpoint vermiculite. The Libby mineral needed to be tested separately.

Government attorney Kevin M. Cassidy called Dr. Daniel Banks to the stand. Banks worked in the respiratory disease studies department of NIOSH for several years.

Kennedy and Banks both worked at NIOSH, but both left before there was a change in the study’s focus, Bernick said.  After they left, W.R. Grace and NIOSH resolved the issue by changing the title and thesis of the study. Instead of referring to it as a vermiculite investigation, it became a tremolite asbestos investigation.

“Did the government representatives in this case ever tell you that, at the end of the day, NIOSH’s chief researcher thanked Grace for its cooperation and input?” Bernick asked.

Banks said no.

Jack DeShazer was Tuesday’s last witness.

W.R. Grace employee Alan R. Stringer hired DeShazer, a real estate owner in Libby, to sell W.R. Grace’s property.

DeShazer sold property to Mel and Lerah Parker, two Libby locals. After living on that property for six years, the Parkers have now been diagnosed with asbestos-related diseases.

DeShazer remembers when he sold that property.

“I asked Stringer if it could be a liability to me to sell property that had vermiculite on it,” he said.

Stringer told him no, that the asbestos-contaminated vermiculite was only dangerous if it were airborne. And it would only be airborne if it were disturbed.

“I considered him a friend,” DeShazer said. “I believed he was a truthful person. He knew it wasn’t good but he didn’t know how bad it was.”

At the end of the day, government attorney Kris A. McLean told Judge Donald Molloy which witnesses he would call next. Molloy told McLean to be sure that each witness could prove something of consequence. If not, he shouldn’t bother questioning them.

The government’s list of witnesses is shortening with each new testimony, making David M. Bernick wonder how soon his own case will begin. He has repeatedly asked for a clear plan from the prosecution.

“It’s imperative (to know how much time the prosecution has left),” Bernick said. “Our case could begin the week after next.”

– Carly Flandro (posted 9:30 p.m.)