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.