UM Grace Case

Judge Donald Molloy has not yet reached a decision on whether the testimony of Robert Locke can be included in the case, and his final judgment will not come until legal briefs are supplied by both sides, Molloy said during court Tuesday morning.

“I am not prepared to do it in the absence of knowing what the government’s position is and the defense’s position,” Molloy said. “I am not going to shoot from the hip on this one.”

The issue with Locke stems from his testimony earlier in the trial. Locke testified under oath that he had a conversation with former Grace executive and defendant Robert Bettachi about whether Grace should sell its Libby properties. According to Locke, Bettachi said “caveat emptor,” meaning “buyer beware” in response to Locke’s concerns. However, this contradicted testimony Locke gave to a grand jury in 2005, where he said that he never discussed property sales with Bettachi.

Molloy referenced a past 9^th Circuit Court case, U.S. v. Chapman, which was ultimately dismissed due to similar issues. Molloy said that letting Locke continue in the case “would not be consistent” with the U.S. v. Chapman decision. However, the judge reiterated that he had not yet made his  decision. Regarding the possibility of a case dismissal, Molloy said, “I’m not prepared to go there.”

If Locke is allowed to continue, the defense may cross-examine him at a later date. The jury, which was not present today, will return to court at 8:30 a.m. next Tuesday, Molloy said.

After Molloy’s address to the court, government prosecutor Kris McLean went through a series of exhibits he wants admitted into evidence. He presented many of the exhibits as proof of specific overt acts listed in the government’s case against the defendants.

Many of the exhibits were memos or letters between the defendants, and several were additions to already admitted exhibits. One exhibit was a copy of a NIOSH report sent from defendant Robert Walsh to several other Grace executives, with handwritten notes from Walsh on it. One note said “Not true, but o.k,” in response to a line in the study that read “no cases of fibrosis were observed among workers with less than 30 f-y” (fiber years).

Another was a letter from defendant William McCaig to other Grace employees discussing an interview he had with a reporter about Libby asbestos. The document said that McCaig told the reporter that the tremolite asbestos hazard was not understood completely but was “discussed.”

Along with the NIOSH study, several of the exhibits involved the asbestos study done by Dr. McDonald for Grace. Most of exhibits involving the McDonald study were correspondences between Walsh and defendant Henry Eschenbach.

Several of the McDonald study exhibits included Grace employee death certificates. Appearing irritated, Molloy pointed out that only one of the certificates in the first McDonald study exhibit involved death from cancer. Other deaths stemmed from a variety of causes such as car wrecks and suicides. Molloy worried that the collection of death certificates could lead the jury to false conclusions.

“The problem is, if those go in, what’s the jury going to do, sit in the back room and say, ‘All those guys died because of Grace’?” Molloy said.

McLean explained that the death certificates were just part of the exhibit, and can be left out if needed.

“We can’t really explain why these were collected and forwarded on as they were,” McLean said.

Molloy did not indicate which, if any, of the exhibits will be admitted at the conclusion of McLean’s presentation. Instead, discussion was set to continue after the noon recess.

–Ryan Thompson (posted 1: 42 p.m.)