April 14, 2009
Below are all blog posts for Tuesday April 14, 2009, in reverse chronological order. Read from the bottom up.
Trial started Tuesday morning with the Prosecution calling Sargent Chamberlain, a retired Director of Purchasing for OM Scott. Scott used vermiculite in their fertilizer and pesticides for turf. Mr. McLean carefully laid out testimony through Mr. Chamberlain indicating there was an issue that arose in the late 1970’s with the rail placards saying the Grace shipment contained asbestos. Scott would pour the fibers into a furnace for expansion. Government Exhibits 171, 173, 174, 176, 224 and 233 were introduced without objection, and were correspondence and memos between W.R. Grace and Scott relating to the placards and asbestos.
Mr. Chamberlain took the stance that Scott had originally received vermiculite from Grace’s South Carolina plant, and that when the placarding issue arose in 1978, he didn’t want the Libby product in his plant. In the correspondence dated 8/78 (GE 174) Mr. Chamberlain noted his confusion about the issue being one of transportation compliance, but the response from Grace addressed liability from exposure. Mr. Chamberlain claimed he was concerned about the potential hazard to Scott employees. The correspondence and inner-office memorandums included letters from defendant Mr. Eschenbach and referenced conversations with defendant Mr. Wolter. Mr. McLean finished his examination with Mr. Chamberlain reiterating his stance that Scott didn’t want the Libby product out of a concern for their employees.
Mr. Bernick, representing Defendant W.R. Grace, cross examined Mr. Chamberlain and used a large white poster board to draw a “reference for the jury” about the dates involved. (The drawing was unable to be viewed from the audience.) Mr. Bernick’s cross examination focused on the fact that Scott had been working with Zonolite since the 1950’s, and he attempted to get Mr. Chamberlain to concede to the fact that the company had always received some vermiculite from Libby. After a fairly congenial morning, Mr. Bernick apparently became frustrated with Mr. Chamberlain’s difficulty in remembering or agreeing with his questions. After an objection to Exhibit 13151 (602: lack of personal knowledge), Mr. Bernick attempted to facilitate more foundation by going through the document, but was objected to by Mr. McLean. Mr. Bernick snapped back at Mr. McLean “Just relax, I’m not going to read it” and started to continue his questioning. At that time Judge Molloy reminded Mr. Bernick to wait for his ruling before proceeding, essentially kindly reminding him to uphold courtroom etiquette.
Mr. Bernick continued his cross examination, introducing 19006, 13189, 13198, 19011, 19028, and 19030 without objection. Many of these were memos and correspondence between Scott and Grace in the early 1970’s, and related to sample levels and independent testing at that time. At the end of his cross examination, Mr. Bernick attempted again to gain concessions from Mr. Chamberlain that the real reason that Scott wanted to discontinue the Libby product was because of cost, not out of a concern for the asbestos content, and that the asbestos was a front of sorts to try and get the South Carolina product instead at a lower cost. However, Mr. Chamberlain refrained from giving Mr. Bernick these concessions, repeatedly stating he either didn’t recall, or that “we didn’t want the asbestos from Libby, we wanted the Carolina product.” At one point, Mr. Bernick asked him to agree that “the only issue was money, is that fair?” to which Mr. Chamberlain responded “No. We didn’t want asbestos.”
–Hannah Stone (posted 10 p.m.)
Kathleen Kennedy tilted her head as she watched W.R. Grace lead attorney David M. Bernick scrawl on a whiteboard.
Kennedy worked for the National Institute for Occupational Safety and Health from from 1979 to 1981 as an epidemiologist. While she was there, she was part of a team investigating the health effects of W.R. Grace vermiculite at its sites in Libby, Mont., and Enoree, South Carolina.
They started the investigation when the Mine Health and Safety Administration asked them to look into the pleural effusion illnesses of employees at O.M. Scott, an agricultural company that produced a soil additive with vermiculite in it.
“The ultimate goal (of the investigation) was to protect workers from exposure to substances that could cause them harm,” Kennedy said.
W.R. Grace top employees didn’t like the idea of an investigation. In fact, Bernick said that “Grace stated its objections in black and white.”
“Not only in black and white,” he said, “But at length in letters.”
One NIOSH document said that the team needed to study “pure” vermiculite to see if it was causing the illnesses in O.M. Scott workers.
Bernick asked if “pure” meant vermiculite that was not contaminated with asbestos. If so, the vermiculite at Libby should not have been tested, he said.
That was one of W.R. Grace’s main objections. They saw no reason to test vermiculite with asbestos because they already knew asbestos was dangerous. Bernick also said that the company was against the investigations because the results could “stigmatize” their vermiculite product.
“By pure, we meant not competing with other exposures,” Kennedy said.
There were many different minerals in the fertilizer that O.M. Scott employees worked with, so even if it were tested and found hazardous, it wouldn’t necessarily pinpoint vermiculite. The Libby mineral needed to be tested separately.
Government attorney Kevin M. Cassidy called Dr. Daniel Banks to the stand. Banks worked in the respiratory disease studies department of NIOSH for several years.
Kennedy and Banks both worked at NIOSH, but both left before there was a change in the study’s focus, Bernick said. After they left, W.R. Grace and NIOSH resolved the issue by changing the title and thesis of the study. Instead of referring to it as a vermiculite investigation, it became a tremolite asbestos investigation.
“Did the government representatives in this case ever tell you that, at the end of the day, NIOSH’s chief researcher thanked Grace for its cooperation and input?” Bernick asked.
Banks said no.
Jack DeShazer was Tuesday’s last witness.
W.R. Grace employee Alan R. Stringer hired DeShazer, a real estate owner in Libby, to sell W.R. Grace’s property.
DeShazer sold property to Mel and Lerah Parker, two Libby locals. After living on that property for six years, the Parkers have now been diagnosed with asbestos-related diseases.
DeShazer remembers when he sold that property.
“I asked Stringer if it could be a liability to me to sell property that had vermiculite on it,” he said.
Stringer told him no, that the asbestos-contaminated vermiculite was only dangerous if it were airborne. And it would only be airborne if it were disturbed.
“I considered him a friend,” DeShazer said. “I believed he was a truthful person. He knew it wasn’t good but he didn’t know how bad it was.”
At the end of the day, government attorney Kris A. McLean told Judge Donald Molloy which witnesses he would call next. Molloy told McLean to be sure that each witness could prove something of consequence. If not, he shouldn’t bother questioning them.
The government’s list of witnesses is shortening with each new testimony, making David M. Bernick wonder how soon his own case will begin. He has repeatedly asked for a clear plan from the prosecution.
“It’s imperative (to know how much time the prosecution has left),” Bernick said. “Our case could begin the week after next.”
– Carly Flandro (posted 9:30 p.m.)
The government questioned three witnesses this afternoon, all of whom it appeared were called to help it establish the conspiracy charge against Grace, particularly the conspiracy to defraud the U.S. government. As NIOSH is a federal agency, if the government can prove Grace impeded its investigation of Grace’s employees’ exposure to vermiculite, it will be one step closer to proving the conspiracy charge.
Grace defense attorney Bernick concluded his cross of Kathleen Kennedy by reiterating that Kennedy was not working at NIOSH when Grace began complying with the epidemiological study in July 1981. Bernick also stressed that Grace’s reasons for opposing the study were: NIOSH was focusing on vermiculite without asbestos, or “pure vermiculite,” which Grace knew was not hazardous and in any event could not be found at the Libby mine; and that Grace believed this focus on vermiculite would be bad for business because people would start to think vermiculite was also hazardous. Finally, Bernick admitted exhibit 268, over Rule 602 objection, which was a Grace internal memo showing that Grace agreed to cooperate with the NIOSH study once the focus was changed to tremolite asbestos. Bernick ended his cross by referencing a letter from the principal director of the NIOSH study thanking Grace for its cooperation after the study was released.
On re-direct of Kennedy, government attorney Cassidy established over a plethora of leading and speculation objections that the primary focus of the NIOSH study was protecting workers exposed to potentially harmful substances. Cassidy attempted to point out the several months that Grace refused to cooperate with the study by asking Kennedy when she began contacting Grace about the study (September 1980) and when Grace finally agreed to cooperate (July 1981). However, this testimony was interrupted by another sustained leading objection from Bernick.
Cassidy next called Dr. Daniel Banks, who was a medical officer in the division of respiratory disease studies at NIOSH between 1978-1981. Banks testified that the NIOSH study was prompted by MSHA concerns that the O.M. Scott fertilizer plant workers who handled vermiculite had abnormally high rates of bloody pleural effusions. NIOSH could not study O.M. Scott workers because they were exposed to other chemicals along with vermiculite, so NIOSH chose to do an epidemiological study on the Libby workers who mined and milled the vermiculite used at Scott. Letters from Banks to defendant Favorito explained the study protocol, and noted that Grace’s use of VANGUARD Spirometers to test its employees’ lung functioning did not meet the necessary standards because Spirometers were proven to be ineffective. Banks’ testimony was then cut off by a sustained defense 403 objection.
On cross, Bernick again pointed out that Banks left NIOSH before Grace began cooperating with the study, and admitted another letter wherein NIOSH thanked Grace for providing historical information on its workers. On redirect, Banks stated that “Grace wanted nothing to do with the study” while he worked at NIOSH.
Lastly, McLean called Jack DeShazer, a longtime Libby real estate agent who represented Grace in its sale of the screening plant to the Parkers. DeShazer testified that while they were signing closing documents at Alan Stinger’s office near the plant, a large pile of vermiculite sitting outside the window prompted him to ask Stinger if there were any liability issues regarding vermiculite on the property. Stringer responded that vermiculite is not harmful unless it is airborne, and it only gets airborne if it is disturbed.
Defense attorney Kubota cross examined DeShazer. DeShazer began by stating that the impression he got from Stringer was that there was no risk with asbestos unless it was airborne. When DeShazer said he was not sure if Stringer was trying to mislead him, Kubota impeached him with prior testimony taken from two defense interviews in 2006. DeShazer then agreed that he did not think Stringer was trying to hurt anyone, and that Stinger exposed himself daily to the vermiculite in Libby.
On re-direct, McLean asked DeShazer if he knew that prior to DeShazer’s meetings with him, Stringer had already filed a worker’s compensation claim. Multiple defense attorneys immediately objected, and Molloy struck the question from the record because “it was inappropriate.” DeShazer’s testimony appears to go toward the “knowingly released asbestos into the air” part of the conspiracy charge.
–Katy Furlong (posted at 7:45 p.m.)
Kathleen Kennedy, an epidemiologist who served on a federal research team looking at occupational vermiculite exposure, said that her agency’s requests to undertake a study at the Grace’s Libby facilities met initial resistance followed by attempts to completely cancel the study.
Kennedy worked for NIOSH, the National Institute for Occupational Safety and Health, a part of the U.S. Department of Health and Human Services.
“The primary purpose was to find out if there was a health hazard in the exposure of vermiculite,” she said of the study, initially requested by the Mine Safety and Health Administration after O.M. Scott employees working with vermiculite at a fertilizer plant suffered bloody pleural effusions. “We thought we would begin with Libby since we thought that would be most likely to have a health hazard.”
Kennedy, on her first job since completing graduate school, said that Grace attorney Mario Favorito contacted NIOSH and said the company disagreed with the proposed study but would meet with the agency. Kennedy said that during that meeting, Grace officials acknowledged the risks associated with vermiculite and said that they had adequate safety standards in place to protect workers.
“They said that they knew that there was contamination of the vermiculite … and that there would be no reason for us to do the study,” Kennedy said.
Despite the company’s opposition to the study, Kennedy said that her team requested documents from Grace on employee health and asbestos exposure. According to Kennedy, after the meeting, Grace officials went to the Secretary of Labor to get the study withdrawn and refused to provide any documents or information.
“We wanted some results from the actual sampling that they had done,” she said. “When we presented our proposed [study] protocol to W.R. Grace, we were acknowledging that we wanted to use information that they had compiled.”
During his cross examination of Kennedy, Grace attorney David Bernick questioned how she could testify regarding Grace’s refusal to supply documents to NIOSH but not remember the documents that she consulted while preparing for the study. Bernick presented several documents that he said showed an ongoing dialogue between Grace and the government.
“Grace was solicited by the Public Health Service to provide information that would be used for a mortality study of Libby miners,” he said, refering to documents from the mid 1970s.
According to the defense, such evidence shows that Grace had complied with the government and was not attempting to cover up or hide information. Bernick presented a document Kennedy wrote outlining some of the information she researched while preparing for the study. Bernick drew some similarities between information in the note and NIOSH files, but Kennedy said that she was unable to recall what documents she referenced.
“I don’t know what information I was looking at when I made my notes,” she said.
-Kyle Lehman (posted 4:55)
Today’s post-lunch testimony started with a few closing cross-examination questions of prosecution witness John Kennedy by defendant Henry Eschenbach’s attorney, David Krakoff. Krakoff’s questions for Mr. Kennedy reiterated the defense’s theme that the United States knew all about the asbestos dangers in Libby, meaning there could have been no obstruction of justice.
The prosecution next called Kathleen Kennedy, a NIOSH researcher from around 1980 in West Virginia. Ms. Kennedy’s work had focused on compiling information, beginning in March of 1980, as NIOSH began contemplating a study of vermiculite. She said the study had for the first time focuses on the harmful properties of vermiculite itself, as opposed to previous studies of the harmful effects of contaminants in vermiculite. Prosecutor Kevin Cassidy led Ms. Kennedy through several letters between NIOSH and W.R. Grace attorney Mario Favorito in which he, on behalf of Grace, had opposed the proposed NIOSH study.
On cross examination Grace attorney David Bernick pointed out that this work for NIOSH had been Ms. Kennedy’s first employment out of graduate school, and that she had never before experienced the tug-of-war that can occur between a regulatory agency and a business. Bernick introduced notes Ms. Kennedy had taken at the beginning of the NIOSH investigation, which he used to methodically cross reference with other documents related to the Libby mine, all of which were nearly 50 years old. Ms. Kennedy could offer very little testimony about these documents, as they were nearly 25 years old when she saw them in 1980, a problem compounded by the intervening quarter-century between her handwritten notes and today’s testimony. Bernick’s line of questioning relied on a complex web of documents that confused even him at times, a problem exacerbated by Ms. Kennedy’s inability to remember what went on or what she had seen. As Bernick was wrapping up his cross-examination, which he had abbreviated “in the interest of time,” a weary looking Judge Molloy called for the afternoon break.
–Mark Lancaster (posted 4:45 p.m.)
John Kennedy, former general counsel for OM Scott from 1973-1984, a customer of WR Grace, took the stand after the morning break. His testimony was methodic and tight as he told the story of how OM Scott came to be involved with asbestos during his time at the company.
Kennedy explained that a local doctor called to report that he had encountered three patients with blood plural effusions, and another with a related illness, but not full-blown bloody plural effusions. The only connection between the four was their employment at OM Scott. Kennedy, in his role as counsel, went about asking for help to answer what he described as “more questions than answers” raised by the information. OM Scott contacted the EPA and OSHA, as well as WR Grace both seeking and sharing information. Eventually the safety sides of OSHA and NIOSH sent a team, from the University of Cincinnati, to study the situation at OM Scott’s plant and make recommendations.
Judge Molloy issued a limiting instruction, as requested by the defense, reminding the jury that neither the testimony of Kennedy nor the exhibits he was discussing could be used as evidence of a conspiracy to knowingly endanger, did not constitute evidence of a release, but might be, subject to “tying up” the Government may do, considered as knowledge of Grace.
On cross-examination, David Bernick went through the major questions Kennedy referenced when he said the issue of blood plural effusions “raised more questions than answers.” Some of those questions concerned the source of the exposures (pre-OSHA exposures, and potential chemicals included in product) and was a similar problem being reported in other plants using the ore (both expanded and in concentrate form).
Kennedy said there were several contacts with Grace during this time period seeking answers and guidance to these questions. Henry Eschenbach responded to one of the requests, telling OM Scott that no bloody plural effusions were found in their workers in similar occupational settings. See Exhibits 13170 (Request for information sent to Grace) and 190 (response from Grace to OM Scott re available information). Kennedy agreed that while Grace had no similar evidence, it did give a “balanced view” by telling OM Scott of other literature with a contrary point: that workers exposed in similar occupational settings were showing bloody plural effusions. Chip Wood also contacted OM Scott to follow-up on prior telephone calls and requests for information, including providing offers to resolve the asbestos issue and retain OM Scott as a client.
At the same time, OM Scott was also communicating with the EPA, OSHA and NIOSH. Bernick asked Kennedy to describe what information OM Scott was reporting to the government that was also reported to Grace or that Grace was aware was being reported to the government. The list included information that concentrate contained some vermiculite, that some handing of the expanded product caused releases, and that tremolite containing asbestos could be hazardous.
Bernick closed his cross by reiterating that Grace knew OM Scott was telling the government that there was reports of bloody plural effusions in some workers; that there potentially were higher, earlier exposures and reports of asbestosis in older workers; that other chemicals used could raise questions; that samples were taken by OM Scott and analyzed by Grace; and that there was a potential problem at OM Scott.
Judge Molloy recessed for lunch. David Krakoff, attorney for Henry Eschenbach, will likely take over on cross-examination of Kennedy this afternoon.
–Kirsten Madsen (posted at 3:26 p.m.)
In 1977, Kennedy received a notice from an area physician who had encountered three workers with “bloody pleural effusions,” or excess, bloody fluid in their lungs. The three all worked around Libby vermiculite in Scott’s plant in Marysville, Ohio.
Kennedy’s legal team acted quickly, contacting governmental agencies and W.R. Grace, whom they purchased the vermiculite from, in order to find out the proper course of action, according to his testimony.
“We were looking for help any place we could get … A lot of these laws were passed in the early ’70s, some things that are clear-cut now weren’t clear-cut then,” Kennedy said, referring to the series of then-recently enacted environmental laws and regulations.
According to Kennedy, Grace executive Henry Eschenbach sent a memo in 1979 to Scott distancing Grace from the workers’ conditions.
“We found no incidence of pleural effusion in our expanding plant population. This is the population which we feel would have an exposure most similar to the work environment at Scott,” Eschenbach’s memo stated, though he added an independent medical report that suggested that vermiculite could cause respiratory disorders.
Kennedy was then contacted by Grace employee Chip Wood, who, worried that Grace might lose its customer, offered to sell to Scott premium South Carolina ore at a bargain price, give Scott employees a full tour of the Libby plant and help to mitigate vermiculite exposure at Scott’s plant.
“He repeated that the one thing Grace could not live with was an absence of notice on our intentions … they were a supplier and wanted notice of what we were going to do,” Kennedy said, referring to Scott’s delayed response and concern over the Grace vermiculite.
Although in his direct examination Kennedy suggested that Grace had not warned them of the dangers of Libby vermiculite, defense attorney David Bernick brought to his attention a Grace memo to Scott, dated in 1971, which made the company aware of the possible asbestos problem in vermiculite.
“It says possible asbestos problems, it doesn’t say asbestos problem,” Kennedy said, adding, “we were a customer using their material, and if there was an issue with that material, I would expect them to come and discuss it with us.”
Yet in bittersweet irony, Bernick showed the court a memo stating that two Grace employees visited the Scott plant in May of 1972 and took samples from the area.
“In 1972, when the issue was there, the samples were taken at O.M. Scott,” Bernick said.
Bernick drove his point home, showing a 1978 Scott memo stating that no asbestos fibers were found in tissue samples from the workers and that the company was continuing to investigate.
- Nate Hegyi (posted 5:02 p.m.)
The government began the morning’s court proceedings by calling their next witness, Sergeant Chamberlain from Marysville, Ohio. Chamberlain worked for the O.M. Scott Company for 50 years and retired in 1999. He began working in 1949 as a bookkeeper, became purchasing manager in 1958 and later was promoted to director of purchasing around the late ’60s to early ’70s. His duties for the company included purchasing all the raw materials used in Scott products.
Chamberlain said O.M. Scott received vermiculite from W.R. Grace. O.M. Scott purchased South Carolina vermiculite at first, but then began purchasing Libby vermiculite because Grace told Scott they were shipping from Libby. “I had no choice in the matter because they were our sole source,” Chamberlain said. “We had no concern with the finished product. Our concern was with the environment of the product.”
Chamberlain explained that the vermiculite ore would arrive in hopper-cars at Scott facilities. The vermiculite was dropped through furnaces to expand it. “So there was this dust involved,” Chamberlain said. Scott expanded it so that it would absorb the active ingredients, Chamberlain said.
Chamberlain said he was “taken by surprise at the time” when he found out that the vermiculite contained asbestos.
The government entered several memos into evidence showing Scott’s concern about the amount of asbestos in the ore that came from Libby. The government’s evidence included a letter Chamberlain received from Henry A. Eschenbach, one of the Grace defendants, saying that “we are continually looking for ways to reduce the amount of this contaminant.”
David M. Bernick, defense attorney for Grace, spent the cross examination trying to reconstruct the history between Scott and Grace. Bernick entered several defense exhibits trying to prove that Scott’s ore had always come from Libby.
“So Grace from the very beginning … was supplying vermiculite from the Libby mine,” Bernick said several times.
“I was not aware of that,” Chamberlain said. “Everything that I was aware of came from South Carolina. I was only aware of South Carolina mines.”
–Kalie Tenenbaum (posted 10:45 a.m.)