March 18, 2009
Below are all posts for March 18, 2009, in reverse chronological order. Read from the bottom up.
Duecker Cross and Redirect Exam Completed
Between the morning break and the lunch break, the cross and redirect examinations of Dr. Duecker were conducted and Duecker was released from his subpoena. David Krakoff, defense attorney for Eschenbach, continued his cross examination of Dr. Duecker, previously head of the R&D department at Grace. Eschenbach, one of the five Grace executives charged in this case, was Director of Health, Safety and Toxicology at Grace, and the Grace executive who commissioned the hamster study, among others.
Krakoff’s questions seemed aimed at bolstering Grace’s defense that Grace had no duty to inform EPA and other federal agencies about the dangers of tremolite asbestos because they already knew. Krakoff introduced Defense exhibit 8925, admitted without objection, which consisted of a notice of a December 1977 Conference on Occupational Exposure to Fibrous and Particulate Dust, organized by the Society for Occupational and Environmental Health along with a couple of letters from Dr. Smith to Dr. Duecker and from Duecker to E.S. Wood suggesting that two or three Grace employees, including Julie Yang, attend the conference. Mr. Wood agreed. This exhibit, although admitted without objection was one that the prosecution had never seen, and while Mr. Cassidy took a moment to quickly scan the four page document, he didn’t have time to consider the use to which Krakoff would put the exhibits. When Krakoff began reading from the conference advertisement, Cassidy objected on grounds that Duecker was not at the conference and could not speak to what went on there. The objection was overruled on grounds that the exhibit was already admitted. Krakoff read that tremolite was a major focus of the conference and that the EPA and other federal agencies would take part.
Krakoff’s last questions to Duecker were “mesothelioma was found in the hamsters right?”, answer, yes; “mesothelioma is a marker disease for tremolite exposure, right?”, answer yes; “OSHA concluded in 1972 that exposure to asbestos can cause mesothelioma, right?”, answer, yes.
Next, Carolyn Kubota, defense attorney for Jack Wolter, VP of Grace’s Construction Products Division (CPD) cross-examined Duecker. Her focus was that Wolter worked diligently and successfully to reduce the asbestos contamination in Zonolite as VP of CPD. Her first exhibit, entered without objection, was the bulletin board posting that Grace had hired Jack Wolter to be responsible for Zonolite manufacturing and engineering activities. Kubota elicited from Duecker that Wolter was a mining engineer, not a scientist, industrial hygienist, or doctor and that he was responsible for Libby plant, Enoree, SC plant, the expansion plants and polystyrene plants for Grace.
Kubota entered a line of questioning seemingly designed to indicate that Wolter, while copied on many internal memos, may not have read them all and therefore could not be held responsible for knowledge of their contents. Apparently Mr. Vining instituted a policy where Grace executives would cc all the other vice presidents in order to keep everyone informed of what everyone else was doing. Kubota asked Duecker if he read all the memos which did not pertain to his department, and Duecker said no, he didn’t read all of them.
Kubota finished by offering exhibits over no objection showing that Wolter worked to reduce the tremolite concentration in end products to trace or no contamination. Her final question to Duecker was that he worked for CPD from 1971 to 1992, was involved in many of these issues and got his name on many documents, but he never thought he was in the middle of a big conspiracy, that Jack Wolter intentionally harmed Grace customers, or intentionally harmed Grace workers, did he? Duecker answered no.
On redirect, Kevin Cassidy addressed issues from Krakoff’s and Kubota’s cross examination relating to when the hamster studies were performed (after the wet mill was operating), that Grace performed studies in an attempt to understand the toxicity of Libby tremolite, that Duecker read all the memos relating to his department and that Wolter was responsible for the Libby mine.Cassidy’s questions were repeatedly objected to on “form of the question,” initially by Bernick, but soon Krakoff followed suit. Examples of improper form are leading questions or questions which assume facts not in evidence or that have no foundation. While the specific problem with Cassidy’s question was not stated, these seem to be what Bernick and Krakoff were objecting to.
After Duecker was released from his subpoena and the jury was excused for lunch, Molloy read Federal Rules of Evidence 602 and admonished both sides that he was seeing evidence admitted through witnesses who couldn’t remember the documents. As a last bit of housekeeping before lunch, Molloy decided that the fourth page of Govt exhibit 331, handwritten notes attached to a memo, would not be admitted unless the prosecution could lay a proper foundation with a witness who knows who wrote the notes.
–Janet Harrison, 7:30 p.m.
Posted: March 18th, 2009 under Law.
Tags: Duecker
Comments: 1 | [edit]
Bernick objects to Dr. Whitehouse’s testimony
After the jury was dismissed due to illness early Wednesday afternoon, Molloy and the attorneys for both sides returned to the courtroom at roughly 3:30 p.m. to discuss the testimony of Dr. Alan Whitehouse, a pulmonologist from Spokane.
The discussion kicked off with a little humor when Judge Molloy couldn’t find his pen and defense attorney David Bernick then asked Molloy to allow him a moment to gather his thoughts.
“Maybe if you don’t have your thoughts together I don’t need my pen,” Molloy said with a smile.
After gathering his thoughts, Bernick began challenging, once again, the opinion of Dr. Whitehouse by pointing out the need to demonstrate the relationship between the “release” and “risk” of asbestos. Bernick said this distinctinon can only be made through a quantitative risk assessment. Whitehouse did not have such an assessment.
“His [Whitehouse’s] material was essentially his case reports,” Bernick told Molloy, pointing out that Whitehouse didn’t use epidemiology. “He just talked about his own anecdotal experience with his own patients …there was no methodology.”
Describing Whitehouse’s testimony as “insulting,” Bernick said that he came in and told the jury to simply ‘accept his word.’
“The jury needs to be told that that kind of testimony doesn’t cut it,” Bernick said. “That is his say-so.”
According to Bernick, the issue with Dr. Whitehouse’s testimony is the opinion he offered and his basis for it and not his qualifications as a clinician.
“When he says that there’s a problem in Libby, he’s suggesting something beyond differential diagnosis,” Bernick said. “This case requires that the jury be told scientifically that a risk has arisen as a result of environmental factors.”
Following Bernicks objection, Molloy read aloud a large section of Whitehouse’s testimony to Eric Nelson, an Environmental Protection Agency attorney for the prosecution.
“Doesn’t he [Whitehouse] undermine his own opinion when he says he’s relying on his common sense?” Molloy asked. “We’ve got fifteen people here with common sense…they [the jury] need, if anything, his science.”
Nelson assured Molloy that Dr. Whitehouse was “only part of our case” before Bernick stepped in once more.
“He [Whitehouse] doesn’t have anything that actually fits into the analysis,” Bernick said. “He made the admissions … it was crystal clear.”
Molloy thanked both sides for their arguments before recessing the court until 8:30 Thursday morning when Dr. Daniel Teitelbaum, a retired expert in toxicology and the government’s next witness, is expected to begin his testimony — assuming the sick jurors are feeling well enough to proceed.
–Chris D’Angelo (posted 7:00 p.m.)
Posted: March 18th, 2009 under News.
Tags: D’Angelo, Whitehouse
Comments: 9 | [edit]
Judge urges jurors not to do research
Before Judge Donald Molloy dismissed the jury for the afternoon, sending three jurors home to recover from various illnesses, he reminded them that they are not to talk to friends or family about the trial, they are not to read any news accounts, and they are not to Google anything related to the trial.The judge told the jurors about a story in the New York Times yesterday reporting on a Florida criminal case in which not one but nine jurors admitted they had been researching the case on the internet. The case was in its eighth week of trial; the Grace trial is in its fourth week, not counting voir dire. Judge Molloy mentioned the huge costs incurred by the United States as well as the defendants, and pointed out they were all for naught. “Now they have to start over,” he said. Everyone in the courtroom seemed to feel the weight of that possibility as they silently rose and watched the jurors leave for the day.
– Beth Brennan (posted 2:20 p.m.)
Posted: March 18th, 2009 under Law.
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Chemist Duecker ends testimony after wading through more memos
Heyman Duecker’s testimony came to an end this morning, and he’ll probably never want to hear about hamsters again.
Defense attorneys David Krakoff and Carolyn Kubota finished the cross examination of Duecker, a former research chemist who did work for Grace, asking him questions about various studies, letters and memos. Duecker, a quiet man in his late 70s, tried to do his best when asked to recognize many documents written over 30 years ago.
Much of Krakoff’s questioning was centered on the studies done by William Smith, an independent scientist who conducted animal studies involving chemical exposure. Smith had conducted experiments on hamsters using different doses and different types of asbestos, depending on which company consulted him.
Smith wrote many letters to Duecker, telling him about the on-going results of the study using Libby tremolite, data he found from other studies and the fact that an asbestos conference would be held in 1977. The conference featured research on fibrous and particulate asbestos dust and resultant mortality and morbidity in workers. Smith had mentioned in his letter that tremolite was to be the primary mineral discussed. Krakoff pointed out that the Environmental Protetction Agency and Dr. Richard Lemen were listed as invited to the conference.
The defense brought out some evidence that didn’t seem to support their case, such as the fact that Smith had found mesothelioma in hamsters subjected to the Libby tremolite and that Smith was going to present his hamster study results at the asbestos conference but he didn’t think that he should include the data from the Grace study. The other study results, which were contracted by different companies, specifically R.T. Vanderbilt, were based upon hamsters receiving tremolite from other parts of the country and showed no tumors. But with the Libby tremolite, Smith had found a dose-related response, meaning that the greater the amount of tremolite, the greater the chance of tumors appearing.
The 1978 draft and final reports Smith submitted to Duecker and Grace showed that two years after the start of the study, hamsters in both of experimental groups (50 percent tremolite and 100 percent tremolite injections), developed mesothelioma at the same rate. Five out of approximately 25 hamsters developed the cancer of the mesothelia. All the animals had fibrous lesions when dissected. But Krakoff pointed out that Smith, in his comments, said that injecting tremolite directly into the lung tissue is not the same as inhaling fibers and cautioned against drawing a correlation to response in humans.
Kubota brought up the point that it was policy in Grace to carbon copy people who might be interested in a memo, whether or not they were directly involved. So she asked Duecker if he had read every memo that he had been sent, and he said he had not. Wolter had been cc’d on many of the same memos. Kubota then changed direction and focused on memos and letters that were sent to Duecker that tended to show how much Wolter was trying to work to improve the conditions in Libby with respect to the dust.
Finally as her coup de grace, she asked Duecker, “Back when you were in charge of research, you never thought you were in the middle of a criminal conspiracy, did you?” Duecker chuckled and answered, “No.”
Prosecutor Cassidy, who had been quiet during the defense’s questioning, stepped again to the lectern. He had Duecker describe the function of the wet mill in Libby and pointed out that it was opened in 1973. Duecker said that they knew there was a dust problem in the dry mill, which is why they built the wet mill that was supposed to alleviate the dust. Cassidy pointed out that Grace had contracted the hamster study in 1976, after the wet mill had been opened.
Then Cassidy tried to ask Duecker, “Since you were studying tremolite after the wet mill opened, was that because the wet mill hadn’t solved the problem?” This brought all the defense attorneys to their feet with various objections, which Molloy sustained. The defense chorus arose again when Cassidy tried to ask Duecker if he thought it would have helped everyone’s understanding if Grace’s hamster results had been included in Smith’s findings, but this time Molloy allowed the question.
Duecker said that he didn’t know what ended up happening with Smith’s findings, either internally in Grace or if they were published elsewhere so he couldn’t speak to that. Duecker had not attended that 1977 asbestos conference. Finally, Cassidy asked, “Do you know why Smith didn’t want to include the Grace results in his report?” Duecker answered, “No.”
Duecker was finally told he could step down but remained in the witness box while the jury filed out. He seemed somewhat uncertain about when he could move, and finally Molloy joked, “You can leave. Get out of here while you can.”
Once Duecker had made his escape, Molloy sternly addressed the attorneys about questioning witnesses. He referred to Rule 602, which says a witness cannot testify to a matter unless there is admitted evidence and the witness knows something about the evidence. Many times, Duecker had looked at yet another memo and said, “I don’t remember this.” Molloy said it made the testimony less than compelling and wasted time.
Finally the prosecution had submitted evidence four years ago that included some handwritten notes. The defense objected to the notes, saying they didn’t know who had written them. The prosecution said they had been included in the documents handed over by Grace so they assumed someone in Grace had written them. Molloy admitted the accompanying typed documents but told the prosecution the handwritten documents would not be allowed unless they could prove who wrote them. With that, court was dismissed until 1:15.
– Laura L. Lundquist (posted 2:15 p.m.)
Posted: March 18th, 2009 under News.
Tags: Duecker, hamster, Lundquist
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Jurors take a sick day
Judge Donald Molloy returned from lunch with some important news for the courtroom.
“We have an issue,” he said. “Three jurors have the flu… [it] seems to be making its way through the jury room.”
Concerned over their ability to remain focused and attentive, Molloy asked the jurors how they were holding up. “If you do not feel that you can go forward you need to tell me,” he said, noting that their attention was vital to fairly trying the case.
One juror, a woman with a black shirt and glasses, slowly raised her hand. Though not visibly ill, she made it clear that she could not carry on. “I feel like I’m going to throw up,” she said.
Molloy dismissed the jurors until 8:30 Thursday morning. The attorneys for both sides said they intended to return to court this afternoon at 3:30 to discuss the testimony of Dr. Alan Whitehouse.
–Kyle Lehman (posted 2:00)
Posted: March 18th, 2009 under News.
Tags: Lehman
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Duecker testimony continues
The defense continued analyzing the data and letters associated with the 1970s study conducted by chemist and former W.R. Grace employee Heyman Duecker in the W.R. Grace trial Wednesday morning .
The cross-examination came from defense attorney David Krakoff, who represents Henry Eschenbach. He focused his questions on establishing the processes that went into getting the “hamster study” off the ground.
Through Krakoff’s questioning, Duecker, a fact witness for the prosecution, expanded on a few topics.
In 1974, the Libby, Mont., mine closed its dry mill and began using its newly-built wet mill. Duecker explained how, at the time, this was a new process, as wet mills had not been constructed to separate tremolite and vermiculite.
Duecker confirmed that switching from a dry mill to a wet mill was intended to “improve worker health.” Krakoff asked him how important the wet mill was to the product development department at W.R. Grace at the time.
“It was certainly one of the biggest issues, probably one of the top three,” Duecker said.
Krakoff delved into how two scientists, Julie Yang and William Smith, became involved in the testing. Yang was brought in for consultation because of her strong chemistry background, as Grace’s product development team had limited knowledge of commercial asbestos. Duecker said Smith was the world’s best known animal researcher on the effects of exposure to asbestos.
Numerous memorandums and letters dating to the 1970s were examined by Krakoff. Eschenbach, the product development’s health and safety inspector, sent memos around the company in 1972 detailing the new OSHA standards and the permissible standard limit.
A couple months later, a memo from Eschenbach talked about reorganizing its air samples. Under magnification, fibers of tremolite were similar to chrystolite, a form of asbestos. According to Krakoff, this set in motion the process of re-examining materials found in Libby.
Each step in the progress of the animal studies was detailed in memos by Duecker. Two additional labs were brought in to help size the fibers to a testable level. This, Duecker said, was crucial in legitimizing the study.
The actual hamster study was done by injecting a “slurry with tremolite and water” into the hamster’s pleural cavity, which surrounds the lungs. Krakoff pointed out to the court that exposure this way was much different than the way humans come in contact with the substance.
After the study yielded five cases of mesothelioma in the hamsters, Smith sent a letter to Duecker in 1977. The letter, government exhibit 143, said that pleural injections cannot be “directly extrapolated” to be similar in humans. Meaning, different exposure methods could have different results.
Duecker said one of the goals of the study was to compare fibers with other companies with comparable materials. When compared to companies that handled similar material, such as John Mansville, Co. and Johnson and Johnson, Co., the results were right in the middle. The fibers were more carcinogenic than the J&J materials, but were less than the Mansville test results.
Court was adjourned for morning recess, with continuing Duecker testimony coming up after the break.
– Josh Benham (posted 12:02 P.M.)
Posted: March 18th, 2009 under News.
Tags: Benham, Duecker, hamster
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