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