March 19, 2009
Below are all the posts for March 19, 2009, in reverse chronological order. Read from the bottom up.
Julie Yang’s testimony wraps up
Court reconvened following the afternoon recess with defense attorney David Krakoff continuing his cross-examination of Julie Yang. Krakoff inquired into a shortcoming of the method Yang used to analyze tremolite concentration. Yang testified that due to the “shelf-like” shape of vermiculite, when it stands on edge it can look just like tremolite, even under a microscope. Her lab team applied a NIOSH rule: anything with a length to width ratio of 3 to 1 and an overall length of over 5 microns is to be counted as an tremolite fiber. So, if a vermiculite plate is more than 3 times as long as it is wide, and standing on edge it could easily be incorrectly counted as an tremolite fiber. For these reasons, Yang sent one of her best counters to Libby to train them how to properly assess tremolite concentration.
Krakoff referred Yang to government exhibit 30A, already in evidence, photos taken as part of Yang’s study on tremolite size distribution. The photos were taken by an outside laboratory with an electron microscope capable of much greater magnification than Yang had available at her laboratory. She explained that these photos were able to distinguish between vermiculite and tremolite with much greater precision than standard light microscopes. These more precise readings were measured against traditional fiber counts to ensure accuracy.
Defense exhibit 5956 was admitted over objection under Rule 611, which grants the court discretion in admitting evidence beyond the scope of direct examination if it may aid in ascertaining the truth. The exhibit, a memo written by Yang, said that Libby vermiculite samples were counted in her Cambridge lab and that the Libby lab came up with consistently higher tremolite counts, sometimes twice as high. Again, the point being that determining tremolite concentration through microscopy was very difficult and has a high error rate.
Krakoff ended his cross-examination at 4:00, and Carolyn Kubota began her cross-examination of Yang. Judge Molloy instructed Kubota, “Don’t plow ground that has already been plowed.”
Kubota elicited testimony regarding her client, Jack Wolter’s attempts to reduce tremolite levels in the vermiculite mining and expanding operations in Libby. Yang stated that she was involved in data analysis linked with these attempts, which were successful to a degree. Yang’s testimony got away from Kubota on one point, however, when she testified in regard to selective mining efforts, “[Libby vermiculite] still contained some tremolite because it is economical to not avoid it completely.”
Yang also testified that she never thought she was in the midst of a criminal conspiracy or that Wolter was involved in Criminal conduct.
The day ended with prosecutor Kris McLean’s redirect examination of Yang. Early in his redirect, McLean snapped at Yang for not speaking into the microphone. As it turned out, she was only reading an exhibit to herself. His curt demeanor continued for the rest of redirect. Much of his questioning was successfully objected to as either expert opinion testimony or beyond the scope of cross-examination. McLean did manage to elicit that while Yang felt a study of the effects of Libby vermiculite on hamsters should have been published, this was not done because management thought it would be costly and might not produce positive results.
-Bert Certain (posted 10:00 p.m.)
Posted: March 19th, 2009 under Law.
Comments: 9 | [edit]
Yang finishes testimony
With a sigh of relief and a smile, former Grace chemist Dr. Julie Yang finished her testimony in court Thursday afternoon.
“No more questions, this is great! I’m going home,” Yang said to laughter in the courtroom.
Under both cross-examination and redirect, Yang spent the latter half of the afternoon explaining the delicacy and expertise required to count and identify asbestos fibers, as well as her pivitol role in the Grace hamster study.
During her tenure as an employee at Grace, one of Yang’s tasks was to identify tremolite fibers within samples of vermiculite from the company’s Libby, Mont. mine. Defense attorney Carolyn Kubota questioned Yang on the difficulties involved with identifying such fibers. She explained that tremolite fibers and the actual vermiculite were very similar and that a shard of vermiculite on edge could confuse someone into thinking it was a fiber.
“OSHA has very strict standards… It takes a lot of time. It takes a lot of experience,” Yang said, adding that “things that aren’t tremolite could look like tremolite under a microscope.”
It was this experience that was lacking when Grace set up a testing laboratory in the Libby, Mont. mine, according to Yang. In order to combat this, Yang began to analyze the Libby findings for a second time at her Cambridge, Mass. laboratory.
“They sent material to us every month. We’d evaluate it and then send it back. Back and forth, we got a pretty good agreement,” Yang said.
However, original counts from the Libby lab were often twice as high as the counts found in the Cambridge lab, according to Yang. The problem wasn’t fixed until Yang sent her best counter to Libby to train employees in 1985.
After the cross-examination came a short redirect from prosecutor Kris McLean. In it, McLean asked Yang why she never published her findings from the hamster study.
“Grace didn’t want it published. I turned it over to the management; it’s not my call. They decided not to publish it,” Yang said.
Yang felt she had to push Grace to do the test in the first place, explaining that the company was wary of the costs and of the possibility of a less-than-favorable outcome.
“Whether it was positive or negative, I think you want the results so you know the effect of Grace materials versus regular vermiculite,” Yang said.
McLean finished his redirect by asking Yang about the vermiculite contents of “stoner rock,” heavier mine material found within the Libby expansion plant.
“Oh, they have a lot!” Yang said smiling.
Court was ajourned at 5:09 p.m. and is expected to continue at 9:00 Monday morning.
-Nate Hegyi (posted 6:36 p.m.)
Posted: March 19th, 2009 under News.
Tags: Hegyi, Yang
Comments: 3 | [edit]
Dr. Yang Faces Cross-Examination
Assistant U.S. Attorney Kris McLean wrapped up his direct examination of Dr. Julie Yang this afternoon, briefly working through several miscellaneous exhibits. Most of McLean’s questions had to do with scientific efforts made by Grace to “bind” asbestos fibers, a process of wetting (or otherwise treating) asbestos fibers to prevent them from entering the ambient atmosphere. Yang testified that none of Grace’s binding efforts were ever completely successful in mitigating the amount of airborne asbestos.
McLean asked a few other questions about asbestos related scientific studies conducted by Grace, but Yang’s memory of these ancient events provided little evidence for the record. McLean ended his direct examination around 1:00 pm and yielded to David Krakoff, attorney for defendant Henry Eschenbach, for cross-examination.
Krakoff led Yang through many specific questions regarding the hamster studies. His questions delved into Yang’s pre-Grace employment with the industrial supplier Johns Manville, Manville’s own studies into tremolite and vermiculite effects, and specific test protocols. Krakoff got Yang to testify that the tremolite used in various animal studies was either injected or surgically implanted directly into the pleuras of hamsters and rats, a significantly different process of ingestion from that which Grace employees would have encountered. Thus, the defense again made the point that the tremolite exposures of the hamster study differ significantly from the exposures of the residents of Libby, a point that calls into question the evidentiary value of the hamster study.
The court paused for the afternoon break during this line of questioning.
Mark Lancaster – posted 5:10 PM
Posted: March 19th, 2009 under Law.
Comments: 12 | [edit]
Yang explains reasons for hamster study
Dr. Julie Yang said that during her time as a chemist at W.R. Grace, she was moved to request the so-called “Hamster study” after learning about tremolite asbestos from numerous scientific journals, colleagues and her own testing.
Judge Donald Molloy kicked off the post-lunch proceedings by stating that he would allow the much-contested government exhibit 144A. The judge noted however that Yang could not testify to the first sentence referring to “super clean” vermiculite, the source of defense attorney David Bernick’s objections to the exhibit. Molloy also instructed the witness to speak loudly, a request heard many times throughout the afternoon.
“You have microscopes, we have microphones,” he said.
Leaning into the microphone, Yang said that in her time at the company, she tried to reduce the levels of tremolite releases through a variety of methods with limited success. Using water or other bonding agents to coat the outside of the ore was seen as a possible solution to high worker exposure, but Yang said her testing revealed the limits of this practice.
“If you bind the fine particles, at least the dust levels will be down,” she said, noting that the improvement was only temporary. “Once it dries up, it won’t work.”
After consulting “hundreds” of scientific journals on tremolite and speaking with Dr. William Smith and others, Yang said that she recognized the hazards of asbestos and became interested in pursuing a more in depth analysis of the Libby ore. Yang said that the testing she oversaw was presented to her boss at Grace, and she helped write the request for the hamster study. All of her testing was compiled into a report showing different percentages of tremolite in Libby ore and the viability of removing it.
“This is a sort of summary putting all of the data into one place,” she said of the report, admitted as government exhibit 369.
After receiving approval for the study, carried out by Smith, Yang testified that she prepared samples from the Libby mine for injection into the animals. During cross examination, defense attorney Krakoff established that Yang worked to replicate the same fiber composition that was found on filters worn by Grace employees in the mine. Krakoff made it clear that the methods used in the experiment, injection into the pleural cavity, was vastly different from the way that humans contact asbestos. Molloy asked Krakoff to hold further questions until later, calling for an afternoon recess at 3:00.
–Kyle Lehman (posted 4:25)
Posted: March 19th, 2009 under News.
Tags: Lehman, Smith, Yang
Comments: 2 | [edit]
Evidentiary Battle
During the late morning direct examination of Dr. Julie Yang, a W.R. Grace & Co. chemist, prosecutor Kris McLean introduced about 25 exhibits during two hours. Each contained a variation of a document, report, or request that Dr. Yang either wrote or received during the late 1970s in regard to product testing of Libby tremolite.
Among the first set of exhibits were progress reports written by Dr. Yang in her capacity as a chemist for W.R. Grace. The second set of exhibits largely included requests by W.R. Grace for the technical services of her research department, and the corresponding test results. Each time McLean attempted to introduce an exhibit through Dr. Wang, Bernick would object to lack of foundation based on lack of personal knowledge.
Shortly before noon, when Bernick recited a two-minute-long objection, Judge Molloy decided to release the jury. He then allowed McLean and Bernick to argue about whether the second set of exhibits, the requests by Grace to Dr. Yang and Dr. Yang’s results, were admissible.
Bernick argued that Dr. Yang lacked personal knowledge of the products in the requests, and therefore, McLean could not lay foundation for the requests. See Fed. R. of Evid. 602. He argued that the exhibits, if admitted, would be prejudicial, because the jury would see the exhibits without context or an explanation of the product. See Fed. R. of Evid. 403.
For example, McLean introduced an exhibit about a product called “superclean” tremolite, which Grace had attempted to manufacture in the late 1970s. Dr. Yang had tested the material, but did not know whether the “superclean” tremolite was ever sold to the public, or by whom, etc. Without an additional witness to define “superclean” tremolite within a general context, Bernick argued, the admission of the request and test results could be prejudicial to W.R. Grace.
McLean responded by arguing that Dr. Yang, although she may not have had personal knowledge of each product, had talked with other W.R. Grace doctors and employees and included their statements in her written reports. McLean argued that these statements are not hearsay because they are admissions by agents of W.R. Grace, the Defendant. See Fed. R. of Evid. 801(d)(2)(D), Admissions of Party-Opponents.
McLean wanted to illustrate that W.R. Grace had attempted to make “cleaner” vermiculite through their research department, thus showing that W.R. Grace & Co., in the late 1970s, knew tremolite could cause harm.
Judge Molloy will announce his ruling after the noon recess.
– Audrey Schultz (posted 3:30 pm)
Posted: March 19th, 2009 under Law.
Tags: Yang
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Jury dismissed for attorney shouting match
With minutes left the morning session, government prosecutor McLean offered a memo written by expert witness Dr. Julie Yang for evidence that set defense attorney Bernick on fire. As the two wrangled over its relevance and legality, Judge Donald Molloy sighed and dismissed the jury for lunch. He then took to mediating the intense argument outside the jury’s presence.
The memo in question dealt with a vermiculite product called “Super Clean.” Apparently, the product was supposed to be a ground-up and purified version of vermiculite. Yang wrote in the memo that even though the tremolite asbestos content was relatively low, the amount of the toxin released when handled was very high, as it was in other Libby vermiculite products.
Bernick argued that the term “Super Clean” would be misleading to the jury, as it suggests that this was Grace’s best effort to control tremolite releases, and it was an obvious failure, to which Yang would testify. He said that the government would use the memo and Yang’s hearsay testimony to tell an inaccurate story in which Grace tried to limit tremolite releases to the consumers, failed, and did nothing more to protect consumers.
He said that was ridiculous, and then asked Yang if she knew whether “Super Clean” was ever sold. She said she thought so, but couldn’t say for sure. He said it was obvious that she had no knowledge on the Super Clean project, and then told her that the product was never sold, that it was noted as a failure and that Grace then moved on to other solutions.
Bernick then said that there was nothing in the “Super Clean” analysis that hasn’t already been shown by other tests and analyses already paraded before the court. So not only was Yang’s testimony hearsay, but the memo in question would be redundant anyway.
McLean argued that what he was using so many studies and such redundant results to show that Grace conducted test after test, trying to control tremolite releases, and never was able to short of stopping production of Libby vermiculite.
Molloy stepped in and said that the issue was over hearsay, and whether Yang knew anything about Super Clean other than what she was told by Dr. Heyman Duecker, her boss, and other Grace officials. He said that since she didn’t know what “Super Clean” meant, apparently referring to the quotation marks, her testimony about it would be hearsay.
Molloy then asked Yang why she put quotation marks around it. She said it was because, after studying the product, she felt it was anything but clean. She said the process of grinding the vermiculite might have made things worse, because the tremolite fibers had been splintered into smaller particles, which seemed to float more easily on the air.
McLean said that since Yang wrote the memo, there was no better witness to comment on it, but Bernick disagreed. He said that since she could offer no context for the development of “Super Clean,” she could not testify about it as an expert witness. He said the government was being deceptive in offering this memo with Yang on the stand, instead of Duecker, Yang’s boss, who actually had knowledge on the topic.
McLean fired back, reiterating his point that Yang wrote the memo.
“Whether she wrote it is irrelevant,” Bernick snapped. “She has no knowledge on the top–”
“How could she write it without knowledge?” McLean retorted.
“Excuse me,” Bernick protested, “but where I come from, people don’t interrupt when someone else is talking.”
Molloy said he felt that he understood the issues at hand and that he’d think about it over the noon hour.
Prior to the mention of the contentious memo, McLean brought into evidence a slew of documents and memos authored by Yang with little opposition from the defense. When the defense did object, Molloy was careful to instruct the jury that Yang’s testimony on lab studies could only be used to prove “propensity, friability, and knowledge.”
He said that since the studies were conducted in the ’70s, they had no bearing Grace’s guilt or innocence in violating the criminal portion of the Clean Air Act, which was passed in 1990.
–Alex Tenenbaum, posted 1:35
Posted: March 19th, 2009 under News.
Tags: “Super Clean”, Yang
Comments: 1 | [edit]
The Prosecution Calls a Former W.R. Grace Consultant and a Former Laboratory Researcher.
Court was called to order this morning with Dr. Daniel Teitelbaum on the stand. Judge Molloy was careful through his testimony to explain to the jury that Dr. Teitelbaum could not testify as an expert witness. Judge Molloy instructed the jury that Dr. Teitelbaum could only testify as a fact witness about the report he prepared for W.R. Grace in 1978. Judge Molloy explained the scientific criteria required for an expert opinion had not been met with Dr. Teitelbaum, and therefore the jury should only use his testimony as to any notice W.R. Grace might have had at the time for dangers of asbestos. Further, the jury should not give any weight to the opinions which were in the reports.
Dr. Teitelbaum testified he had examined a group of unknown x-rays from workers at the mine in Libby and the mine in South Carolina, both owned by W.R. Grace. The only information contained on the x-rays were the last name, the age, and the film. Dr. Teitelbaum testified he proposed to W.R. Grace that he and two other independent radiologists examine the x-rays and write reports on their findings.
Prosecuting attorney Kevin Cassidy then introduced government exhibit 175 into evidence. The evidence had previously been introduced, but did not include the first three pages of a letter from Dr. Teitelbaum to defendant Eschenbach, dated August 25, 1978. Dr. Teitelbaum testified that the letter reported the high attack rate of asbestos in the Libby group, which was not present in the South Carolina group. Dr. Teitelbaum further testified that the incidence of asbestos-related disease in Libby was independent of age, meaning age was not a factor in determining the adverse health effects. Finally , Dr. Teitelbaum testified that W.R. Grace did not do the follow-up study as recommended by the doctors which ended the direct examination.
Defense attorney Barbara Harding started the cross-examination of Dr. Teitelbaum next. She recalled exhibit 127, a letter from Eschenbach to Dr. Teitelbaum where Eschenbach said W.R. Grace had been taking workers’ x-rays from 1964. Dr. Teitelbaum could not recall if he knew that information or not. Harding also forced Dr. Teitelbaum to testify that he did not know any of the procedures done by W.R. Grace to protect workers before his report. He also testified he did not know if W.R. Grace had any preventative measures put in place after his report. Further, the x-rays were only for workers at the Libby mines, and Dr. Teitelbaum did not know how long the workers had been at the mine or what any previous work history for any of the x-rays.
Defense attorney Gary Winters next took over the cross examination of Dr. Teitelbaum. Winters tried to shift the focus away from his client Eschenbach by showing Eschenbach went out for a full day to meet with Dr. Teitelbaum. They engaged in a complete discussion about the study before it began.
After a brief redirect by Cassidy, the prosecution next called hostile witness Julie Yang to the stand. Kris McLean started the testimony with general questions about Yang’s background, including her education, work experience, and current work status.
Yang was a research group manager at W.R. Grace in chemical research. Her boss at the time was Dr. Duecker. Yang worked in the laboratory, and part of her duties was to analyze the asbestos contained in the vermiculite. Those under her supervision collected air samples while working with vermiculite in the lab and used microscopes to record the number of fibers. Yang testified she was very careful with her workers in the laboratory when working with vermiculite because it was so dangerous.
Yang testified she recommended an animal study in 1975. She further testified that if W.R. Grace wanted to know if its materials were bad, it had to do this study. She claimed she was unaware when she started at W.R. Grace of the dangers of its materials, but if W.R. Grace had any doubts, then the company should do her recommended study.
With that testimony, Judge Molloy called the morning recess. The prosecution is still trying to patch together a version of events that shows the defendants knew of the dangers of asbestos through their own studies and reports.
–Maggie Braun, 1:15pm
Teitelbaum takes the stand, is cross-examined, and makes way for Yang
Daniel Teitelbaum and Julie Yang spent the early morning session on Thursday testifying about medical evidence and the creation of a key research study used by Grace.
Teitelbaum was the founder of Poison Lab, a Denver-based company that did asbestos testing for W.R. Grace in the late ’70s. e was a former Grace researcher and creator of the “hamster study.” Government prosecutors asked them questions focused on both the results of tests and whether Grace placed restrictions on who could know this information.
Teitelbaum came up first as a witness. A longtime medical professional and ordained rabbi in his late 60s or 70s, Teitelbaum founded the Poison Lab company in Denver, Colo., which dealt with toxicology. Poison Lab was eventually sold to Chemed Corporation, which was also owned by Grace. That was how Teitelbaum found himself receiving x-rays of Grace employees from both Libby and a South Carolina mine owned by Grace.
Poison Lab was asked to examine these x-rays and other data to look for signs of disease, Teitelbaum said. Teitelbaum explained that two independent and respected radiologists in Denver were contracted to do the actual testing.
Government attorney Kevin Cassidy presented a letter from Mairlyn Leczinski, a Chemed employee, to Teitelbaum regarding the testing, dated August 24, 1977. After asking him to identify the letter and various other questions, Cassidy presented a letter written from Teitelbaum to Henry Eschenbach, one of the defendants, describing the results of Poison Lab’s study. Teitelbaum read his letter, which said that a “high attack rate” of asbestos was found in the study’s Libby group. Several jurors appeared fidgety as Teitelbaum described these sometimes confusing findings. “Reading an x-ray is an art,” Teitelbaum said.
After a flurry of objections from the defense during Teitelbaum’s testimony, Molloy clarified what the witness could and could not discuss. “There are obvious differences between clinical medicine” and when someone appears in court as a witness, Molloy said, asserting that Teitelbaum can only comment on what knowledge Grace had, and should not focus on the medical implications in his testimony.
Grace attorney Barbara Harding vigorously cross-examined Teitelbaum, followed by Eschenbach’s attorney, Gary Winters. Both sought to place doubt on the methods of the study, asking questions about the procedures the radiologists followed. Harding worked to cast doubt on Teitelbaum as an “insider” witness on the company’s dealings. She said Teitelbaum did not have any knowledge of Grace’s past testing and policies on its workers, nor did he know anything about its actions after his study was completed. Harding also asked whether one of the study’s purposes was to find if asbestos problems existed at Grace’s South Carolina plant, where asbestos issues were not found. Teitelbaum replied, Yes.
Finally, she fixed upon the request for an “unbiased” study in Leczinski’s letter to Teitelbaum and asked whether Grace restricted the medical professional from distributing his findings to others.
“I don’t recall if there was any restriction,” Teitelbaum said, adding that he sent the letter discussing test results to Eschenbach only.
As a final cross-examination point, the defense questioned whether asbestos was the sole cause of disease among Libby miners by describing cases of other disease found in Libby mine workers by Teitelbaum’s study. Cassidy handled the redirect for the prosecution after cross-examination ended, addressing few of the defense’s points before ending quickly.
After Teitelbaum finished, government attorney Kris McLean began his questioning of a new witness, Julie Yang. Yang, an older woman with dark black hair hailing from California, worked as a Grace researcher for 20 years and created the hamster study described by past witness Heyman Duecker. McLean had Yang examine a memo about the study written from her to Duecker, who was her boss at the time. Yang explained several pages of handwritten notes attached to the memo before court adjourned for a 15 minute break at 10:00 a.m.
– Ryan Thompson (posted 11:20 a.m.)
Posted: March 19th, 2009 under News.
Tags: Duecker, hamster, Teitelbaum, Yang
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