March 24, 2009
Below are the posts for March 24, 2009, in reverse chronological order. Please read from the bottom up.
Molloy Rules on Motion
Judge Molloy reviewed defense attorney Spivak’s motion to exclude evidence of exhibits and testimony regarding Monokote this afternoon. Monokote 5 was a spray-on fireproofing product that was very profitable to Grace in the 1980s, before Grace took it off the market due to its release of asbestos. Specifically, Molloy framed the government’s arguments that the Monokote testimony was admissible as follows:
(1) the exhibits show the defendants had knowledge that vermiculite released airborne asbestos fibers;
(2) the exhibits show Grace was withholding information from its customers that Monokote 5 released asbestos upon use in the same way Grace withheld this same information from the government; and,
(3) this withholding of information, especially in light of previous issues with O.M. Scott, demonstrates Grace’s motive to avoid liability for the Monokote products because if customers find out that the Monokote products release asbestos into the air, the government will investigate Grace.
Molloy said he was not clear if this motive went to the defrauding the government charge against Grace, or the conspiracy charges. In any event, Molloy ruled that Rule 403 prohibits the exhibits regarding Monokote or any supporting testimony because the government would have to prove that Grace was withholding information from customers, which was not evident by these documents, and the government would need evidence that the O.M. Scott incident actually occurred in the same way the government said it did, which would require the defense to rebut this evidence. Molloy ruled that this would be more confusing to the jury than helpful or probative, would cause undue delay, and was unnecessary cumulative evidence. Thus, the exhibits and testimony Kris McLean sought to enter on direct of Locke regarding Monokote were not allowed. Neither Locke nor the jury were present for this ruling.
McLean was granted a few minutes to determine how to proceed with his direct examination, and when court resumed McLean made an offer of proof to the court explaining what Locke was going to testify about regarding two meetings he attended on July 1-2, 1986. The information behind the offer of proof has already been admitted into evidence as exhibit 509(a), which includes handwritten notes Locke took secretly during the meeting, and typewritten summaries Locke made 13 years after the meetings. At the July 1 meeting—attended by Walsh, Bettacchi, Wolter, Locke, and press consultants—the group discussed OSHA’s lowering of the asbestos PEL from 2 to 0.2, and how this would affect Grace’s Monokote 5 product. McLean said Locke would testify that these meetings were in complete secrecy, no notes were supposed to be taken (although Locke did under the table apparently) and any materials distributed during the meeting were to be returned after the meeting. Walsh indicated during the meeting that Grace’s first priority was to preserve profits, and the second priority was to comply with the regulations. For more discussion on these meetings, see Josh Benham’s post.
–Katy Furlong (posted 10:30 p.m.)
Posted: March 24th, 2009 under Law.
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McLean continues direct examination of Robert Locke
The essence of the morning testimony of former W.R. Grace employee Robert Locke was demonstrated by government exhibits of internal company letters and memorandums. Prosecution attorney Kris McLean proceeded slowly by displaying an exhibit long enough for the jury to read the entire text before resuming questioning of the witness. The exhibits, though word intensive, contained a broad implication as to where Mr.Locke’s testimony was headed, i.e., the conspiracy charges against the defendants. Though the testimony proceeded slowly, the care and time taken by the prosecution focused the jury’s attention to the documents, which in many ways spoke as loudly as Mr. Locke as to the events they covered.
The most interesting legal wrangling of the morning was over the admission of GE148A, which was a document created for a SOEH conference, and was covered with handwritten notes. The defense stated they would not object if the document was used for a limited purpose; otherwise they objected on the grounds of hearsay. Judge Molloy clarified that the document was not substantive evidence, and questioned what the prosecution meant to use the evidence for. Substantive evidence is that used to prove a factual issue. Judge Molloy allowed the evidence, so long as the testimony was for the limited purpose of showing that the conference occurred, and that the notes were what Mr.Locke felt were important concerns at the time. Mr. Locke noted that Grace was not named during Dr. Smith’s presentation.
Other evidence admitted included memorandums revolving around Mr. Locke’s request to have an independent epidemiology study performed by a Dr. McMahon, and reaction by Grace executives. The study ultimately did not occur because according to Mr. Locke, Dr. McMahon would not allow Grace to edit his findings. Exhibits GE 103 and GE 295 were admitted without objection and dealt with the levels of exposure in Libby, namely that the only employees who would be adequate for testing of a 2/cc level were those hired after the wet mill was established in 1975.
The morning session concluded with the introduction of a safety pamphlet, GE 158, which presumably would be handed out to Libby workers at the mine. The defense’s objection of relevance was overruled, and Judge Molloy announced the morning break.
–Hannah Stone (posted 10:20 p.m.)
Posted: March 24th, 2009 under Law.
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Molloy promises ‘Monokote meetings’ decision by morning
When court resumes Wednesday morning in the W.R. Grace trial, Judge Donald Molloy will have made a final decision on whether to allow Robert Locke’s testimony regarding two Grace executive meetings in 1986. Testimony about the meetings, which were about a proposed new regulatory standard, raised vigorous objections from defense lawyers after the jury left the room Tuesday.
The judge said he will examine the arguments and documents submitted by both the defense and prosecution tonight and draw his conclusion. For planning purposes, Molloy instructed both parties to prepare for court Wednesday as if none of Locke’s contested testimony will be allowed.
The meetings in question took place on July 1 and July 2, 1986. As director of marketing for building products, Locke was present at these meetings and his take on what transpired appears to be considered a crucial part of his testimony by the prosecution.
New standards from the Occupational Safety and Health Administration were the basis of the meetings. According to U.S. attorney Kris McLean, Grace executives attempted to conceal all evidence of the meetings. McLean has a 1985 document that appears to show defendant Robert Walsh calculating the cost of expected and excess death tolls as a result of Grace product use.
The prosecution expects Locke to testify that the main priority of the meetings was first to preserve profits, then to comply with the new OSHA guidelines. The new rules limited the permissible fiber concentration to a 0.2 limit. He would also speak on the exit strategies discussed for getting out of Libby, Mont., such as selling land and halting vermiculite production.
The government is trying to use these meetings as proof of Count I of the indictment, showing the defendants were part of a conspiracy to keep secret the health risks posed by asbestos-tainted products and production. Read more »
Posted: March 24th, 2009 under News.
Tags: , Benham, Locke, Monokote
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Former Grace Exec Details Possible Responses to Government Study
Assistant U.S. Attorney Kris McLean continued his direct examination of former W.R. Grace Executive Robert Locke this afternoon. McLean began his questions by reviewing a memorandum Locke wrote to several executives in 1980, the same memo he had introduced before the lunch break. This letter detailed several different options Grace had contemplated in dealing with a study on tremolite planned by the National Institute for Occuptational Safety and Health (NIOSH), a branch of the federal Centers for Disease Control (CDC).
As a Grace employee, Locke’s memo set forth several possible ways Grace could have dealt with the potentially damaging NIOSH study:
- Obstruct and block the study, possibly even contesting in courts - Locke estimated Grace would lose, and that this course of action was “not the image we wanted to project.”
- Delay and otherwise “be slow”- Locke said that Grace anticipated NIOSH having fewer resources once Ronald Regan became present. Locke testified that the idea was to drag it out forever and “talk them to death,” and that he wanted Grace to act slowly because he wasn’t interesting in having information from the planned study disclosed in public.
- Publish a preemptive epidemiological study- Locke stated that if Grace could engage a study by someone that would “do business on our terms,” they could perhaps “blunt the results” of the NIOSH study with a study that had more Grace-favorable conclusions.
- Cooperate fully- Locke recommended against cooperating with NIOSH, as he had a personality conflict with a NIOSH staff member based on earlier contact. He felt that NIOSH had not “always acted with high levels of professionalism.”
- Actively go upstream in NIOSH to repeat same arguments- Locke contemplated going to the supervisors of the NIOSH workers who were contemplating a study of Grace, with the goal of “get[ing] interest in the study turned off or turned down.”
- Figure out what drove NIOSH to propose a study- Locke postulated that perhaps some unknown organization had pressured NIOSH for a study of Grace, and if that were the case, perhaps such pressure could be “turned off.”
- Apply influence to congressmen, senators, lobbyists, etc.- Locke contemplated working through political channels to stop the NIOSH study. While this had the benefit of delaying the proposed study, it could potentially backfire, putting Grace in a political hot seat. Furthermore, using political leverage would require several years earning the trust of the necessary politicians.
Locke testified that, of these options, he favored acting slowly, preempting the NIOSH study, going upstream in NIOSH, and inquiring as to what powers were pressuring for the study.
McLean then led Locke through several years of correspondence, hoping to show how effectively Grace had slowed NIOSH’s study. Working as far forward as February of 1982, McLean emphasized that Grace had apparently succeeded for years in preventing NIOSH from studying Libby tremolite.
McLean then paused to do some preemptory rehabilitation of the lashing Locke will surely receive on cross-examination. Locke, as a Grace employee now testifying for the prosecution in a criminal trial, testified as to having had two meltdowns as a Grace employee, where he “crashed and burned,” brought on by long hours and worldwide travel. He testified to receiving medication to help deal with these episodes, and in his opinion recovered fully from both. Shortly after, Judge Molloy called for the afternoon break.
–Mark Lancaster (posted 4:45 p.m.)
Posted: March 24th, 2009 under Law.
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Locke says Grace worked to delay NIOSH study
After learning that NIOSH intended to conduct a study on worker asbestos exposure at their Libby, Mont., facilities, W.R. Grace officials scrambled to delay the agency’s efforts, said former employee Robert Locke. Locke said there was a general consensus at Grace that such a study would adversely affect the chemical company.
“We did not know what kind of results they would come up with,” he said. “If we lost sales as a result, we would lose money.”
Reflecting on the initial meeting with the agency in 1980, Locke said that he was surprised at how willing the government was to respect Grace’s opposition to the study. Locke said that officials from NIOSH did not press Grace for immediate action, and instead left the meeting early, choosing to follow up at a later date.
“They just kind of curled up into a ball and rolled away,” he said “They didn’t have any fight.”
Assistant U.S. attorney Kris McLean walked Locke through several letters and internal memos from the early ’80s that detailed the company’s reaction to the proposed NIOSH study. Chief among these was a so-called options memo that Locke said outlined ways Grace could deal with the proposed study. The memo detailed seven options, ranging from full compliance to employing a preemptive study and drawing on outside influences to discourage a study.
Locke said that he personally suggested four of the options, including the suggestion that Grace conduct their own study as a way to control the issue and lessen the impact of a NIOSH study.
“It would be a study that we would have significant input to,” he said. “Maybe NIOSH would never publish their study.”
McLean introduced several letters O. Mario Favorito wrote during this period to the Mine Safety and Health Administration. Favorito, corporate counsel for Grace, was named in the 2005 indictment that initiated this trial, but he was severed from these proceedings, and his case is set to be tried separately.
Locke testified that such letters were part of an effort to go over the heads of NIOSH officials and create opposition to their study within other agencies.
“MSHA had the regulatory authority over Libby,” he said, adding that they could stop the study if they did not see the need for it. “At the very least, it’s going to delay things.”
In the end, Locke said Grace’s efforts to stop the study were unsuccessful, but noted that the time gained between the first meeting and the declaration that NIOSH would conduct a study was beneficial to the company.
“We were trying to turn off pressure for the study,” he said. “We achieved about eight or nine months of delay.”
–Kyle Lehman (Posted 4:20)
Posted: March 24th, 2009 under News.
Tags: Lehman, Locke, NIOSH
Comments: 3 | [edit]
Study after study shows only negligible success
Robert Locke testified this morning that “there was no solution to the problem up at Libby—no matter what you did.”
Continuing on direct examination, government attorney Kris McLean took Locke through multiple studies and tests done by W.R. Grace to reduce the airborne concentrations of asbestos from Libby vermiculite. The two discussed drop test sampling, summaries of Dr. Yang’s tests, tests from product users and workers, and salting tests. McLean and Locke also went through testing of horticulture products, the Binder Program—which tried out water, methocellulose, “water glass,” soybean and mineral oils, and asphalt and silicone emulsions—electrostatic fogging attempts, and separation and removal endeavors. Study after study, test after test that McLean and Locke went through showed the same general result: there were negligible improvements with diminishing returns, and even the smallest levels of tremolite were still releasing asbestos in high airborne concentrations.
Locke also discussed an employee information handout prepared by Johns-Mansville titled “What You Should Know About Tremolite and Your Health” and a memo (government exhibit 158) he prepared detailing those concerns. McLean had Locke highlight each concerning statement, numbering at least seventeen, and what the specific concern was. For example, concern #4 referenced a statement that when correctly used most products will not produce levels high enough to be hazardous. In response, Locke wrote, “‘Most?’ Not all? … What does ‘correctly used’ mean? … I thought we went through this once.” Adding today, did Grace have instructions for “correct use”? At concern #17, the handout asks “Do you have any questions regarding the health risks of working with vermiculite?” leaving a Yes or No blank to be checked off. Locke wrote “Do we believe health risks are always associated with asbestos? … [The statement] means that and not that health risks are insignificant.” (Emphasis added.) Locke explained the question presupposes an association between vermiculite and health risks.
Just before the lunch break McLean and Locke started down the road to discuss the proposed NIOSH study in 1980. Prior to the proposal Locke had sent around a memo regarding a completed NIOSH study of Governor Mine in New York. Following that study NIOSH recommended warning labels be put on the mine’s products, and the recommendation was implemented. This was significant, said Locke, because NIOSH is not an enforcement agency, and before the Governor NIOSH had not made enforcement or regulatory suggestions part of its epidemiological concerns. This marked a change from NIOSH’s prior pursuit of science, Locke explained. This line of questioning promises to be important to the government’s case.
With these documents McLean is presumably attempting to illustrate Grace’s knowledge of the propensity of vermiculite to release asbestos, the danger associated with release, and that all attempts to lower release have been and would continue to be failures—effectively, laying the groundwork for the mental statement elements.
After excusing the jury for lunch, Judge Molloy took up arguments regarding the government’s proposed exhibits 626c and 626d. These documents, explained David Krakoff, attorney for Henry Eschenbach, were from Locke to his attorneys regarding his employment lawsuit. Krakoff characterized the documents as being “on their face protected by the attorney-client privilege,” “rank hearsay,” and “rambling, angry, critical … in quite colorful language.” Krakoff requested that Judge Molloy issue a subpoena duces tecum (a demand for the production of documents) for all documents regarding the underlying the subject matter addressed in the exhibits from any attorney Locke consulted. McLean explained that the documents had been turned over to the government by Locke as Krakoff suspected, but would not be offered as exhibits unless the defense attacked Locke’s credibility. In that situation, McLean said, they would be used to show a prior consistent statement under FRE 801(d)(1)(b)-–to show that what Locke said before trial is precisely what he said at trial. Judge Molloy said he would issue the proposed subpoena duces tecum the defense offered. Judge Molloy also issued the subpoena duces tecum requested by the defense yesterday. He then heard lead counsel in chambers on an undisclosed issue and recessed court until 1:15 p.m.
–Kirsten Madsen (posted at 3:00 pm)
Posted: March 24th, 2009 under Law.
Tags: Locke
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Direct examination of Locke continues
After abruptly excusing the jury on Monday because one juror was ill, Judge Donald Molloy took a moment first thing Tuesday to verbally check on the jurors’ well-being. Hearing all was well, direct examination of former W.R. Grace employee Robert Locke resumed where it had left off Monday.
Attorneys for the government began by asking Locke about several documents outlining an epidemiological study on past and present Grace employees.
Locke said he met several times with Dr. Brian MacMahon from the Harvard School of Health to prepare for the study.
“We had monitoring data on employees, but it wasn’t fantastic,” Locke said. “It would be good to get our hands around what was going on.”
Locke said that there wasn’t universal support for the study and that ultimately the study never occurred because MacMahon refused to let Grace edit the study. MacMahon wanted the conclusions that came from the study to be his conclusions and didn’t want the company to repress the results, Locke said.
Locke also testified that part of his job at Grace was to attend various workshops on occupational safety and exposures. The prosecution specifically focused on a conference in 1977 that Locke attended about exposures to fibrous dust. Locke said that he remembered Dr. Bill Smith was giving a presentation on a hamster study, which included Grace.
Smith presented a draft of what he published so that the company would could see “what he wasn’t going to say or was going to say to make sure he didn’t say anything obstructive about Grace,” Locke said.
Molloy did not offer any ruling on the defendants’ request to limit the testimony of Locke The defense said Monday that Locke’s testimony would be unfairly prejudicial and would confuse the jury. The prosecution said that Locke’s testimony would help establish the requisite mental state for the conspiracy charge.
The government began to question Locke about an employee health handout before the morning break.
– Kalie Tenenbaum (posted 10:20 a.m.)
Posted: March 24th, 2009 under News.
Tags: Locke, Tenenbaum
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