UM Grace Case

The government knew about the dangers of asbestos for many years before taking W.R. Grace to court, W.R. Grace lead defense attorney David Bernick asserted during his cross-examination of Frank Kover. The company also complied with the government’s past information requests, Bernick argued.

Kover, a retired Environmental Protection Agency industrial hygienist, testified on documents from the late 1970s and ‘80s that Bernick presented, many of them EPA internal documents. The attorney sought to show that EPA possessed extensive knowledge of asbestos, describing it as the most regulated substance other than radioactive material during the time period.

“Is it fair to say the government’s knowledge of literature on asbestos by 1976 was vast?” Bernick asked. “Yes,” Kover replied.

Bernick focused on fertilizer seller O.M. Scott’s study of asbestos in the 1970s, using the study as further evidence that the government had asbestos knowledge long ago. The O.M. Scott study taught the government that asbestos could be airborne, and provided new information on vermiculite asbestos and the hazards of asbestos overall, Bernick said. Kover agreed.

Bernick also used documents from Kover’s former employer, EPA’s  Office of Toxic Substances, to show that both the EPA and NIOSH — National Institute for Occupational Safety and Health — did their own studies on asbestos. Bernick took special notice of a document describing a 1980 study by EPA representatives who  visited both Libby and Grace’s site in Enorre, S.C.

Along with demonstrating the government’s knowledge, Bernick argued that much of this knowledge was supplied by Grace itself, who gave the government “submission after submission” of information from its Libby mine. Bernick referenced a document sent from Grace to the EPA which described cancer and mesothelioma in its employees. The document stated that some newer employees were showing signs of disease.

“Grace cooperated in giving  you (the government) information, follow up information, that you wanted to see,” Bernick said.

The attorney also sought to show that government prosecutors did not share all available information about Grace’s cooperation with Kover. Bernick asked a succession of questions focused on whether prosecutors told Kover specific facts about Grace’s cooperation with the government. The witness quietly replied “No” to each one.

“The prosecution showed you very little of the ‘true picture’ that Grace communicated to the government,” Bernick said.

Bernick also brought the hamster study back into conversation, asking Kover if he read the study when he first heard of it. He did not because it didn’t directly relate to his own responsibilities at the EPA, Kover replied. Bernick focused on this point to argue that the government selectively showed evidence to Kover by focusing on a study which he did not “personally know of.”

After Bernick’s cross-examination concluded, government prosecutor Eric Nelson handled the redirect. Nelson’s questioning sought to refute Bernick’s argument that the government had vast asbestos knowledge, referencing a 1973 EPA document which described gaps in the government’s knowledge.

However, objections by the defense poured in after the majority of Nelson’s questions. Bernick mostly objected due to how Nelson stated his questions, which the defense attorney often described as “leading.” Molloy sustained most objections, but appeared frustrated after one particularly long string of questions followed by objections.

“This is getting confusing,” Molloy said before asking Nelson to phrase his questions better.

After the redirect ended, the jury left for lunch break and Molloy took the time to discuss some of the prosecution’s upcoming witnesses. Government attorney Kevin Cassidy clarified the order in which these upcoming witnesses will appear. After this bit of business, Molloy adjourned the rest of the court until 1:20.

–Ryan Thompson (2:01 p.m.)