Locke continues sparring with Bernick
After lunch, Robert Locke continued to spar with defense counsel David Bernick during cross-examination. While the questioning was punctuated by a few testy exchanges, the cross-examination was largely plodding in pace and specifics.
Bernick continued to emphasis a theme that he has been developing with other government witnesses, namely that the witness—in conjunction with the government—has not presented the complete picture to the jury. Several times, Bernick challenged data that Locke testified to on direct examination as being misleading. For instance, as to the “drop test,” Bernick challenged Locke’s testimony presenting exposure data that was not “time weighted,” and therefore not consistent with OSHA standards. Locke refused to be boxed in by Bernick, explaining that he told the jury that the data was from momentary sampling and never suggested otherwise.
At another point, Bernick attemped to refute Locke’s direct examination testimony that he did not believe that the wet mill would bring Libby into compliance with regulations. Bernick asked Locke whether he was aware that the new wet mill brought Libby into compliance. Locke stated that he did not agree with that position. In an attempt to spring his trap, Bernick presented a memo from Mr. Wright, a WR Grace employee, stating that the “new mill” had brought Libby into compliance. Locke refused to let Bernick mix apples and oranges; he pointed out that the Wright memo was not talking about mills, but with expansion plants. Bernick quickly moved on to another topic.
These skirmishes were not, however, Bernick’s main thrust during cross-examination; Bernick spent considerable time questioning Locke about the hamster study. Bernick repeatedly asked Locke what the purpose of the study was. Locke repeatedly stated that the study was designed to explore how cancerous tremolite asbestos was compared to chrysotile asbestos. Bernick stated that the purpose was not to show that tremolite was safe for humans, because everyone already knew that tremolite was dangerous to the Libby workers. Locke disagreed, stating that it “might have been an outcome of the study, but it was not an outcome.” Bernick continued, asking Locke whether he was aware that OSHA—in 1977—considered all asbestos dangerous to human life and that OSHA was not going to differentiate between types of asbestos. Locke agreed to this. Bernick then closed this line of argument with asking Locke whether the true purpose of the hamster study was to provide support for WR Grace’s efforts to persuade OSHA to treat tremolite asbestos differently than chrysotile asbestos. Locke ultimately agreed that this was a purpose for the hamster study.
With this line of questioning, Bernick seemed to be setting up an argument that WR Grace did not obstruct the government when it did not provide the hamster study to the government. Bernick continued to characterize the hamster study as ammunition to influence the regulatory environment as opposed to a safety study.
–Andrew King-Ries (posted 3:45 p.m.)
Posted: March 25th, 2009 under Law.