April 9, 2009
Below are all posts for Thursday, April 9, 2009, in reverse chronological order. Read from the bottom up.
With the jury in recess, Gudz recalled a conversation she had with her husband, a former W.R. Grace technical consultant, pertaining to his views on the health of Grace workers’ families in Libby, Mont.
“The workers told him that children and women were getting sick, probably from the dust,” Gudz told Molloy.
After hearing her short testimony, Molloy struck it, citing that the story was unreliable as a third-hand account and that it wasn’t relevant to any issue within the case.
“I’m not going to let it in, it’s hearsay upon hearsay upon hearsay,” Molloy said.
Molloy’s decision followed concerns raised by the defense prior to Gudz taking the stand that suggested that her husband didn’t have the medical knowledge to identify that the worker’s families were ill.
Gudz’s husband was unable to testify himself due to a debilitating mental condition, according to prosecutor Kris McLean.
The prosecution absorbed similar news earlier when two of its witnesses, former Grace secretaries, were not allowed to testify on any of the documents presented to them due to sustained objections by the defense.
While the documents presented to the secretaries were all memos they transcribed from their bosses, general managers at the Grace mine in Libby, the defense objected on the grounds that the witnesses had no “personal knowledge” of the contents of the letters.
Due to these restraints, the witnesses’ testimonies were unusually short and each lasted no more than 15 minutes. The two witnesses were Carolyn Horka, a secretary who worked for defendant William McCaig from 1979-1985, and Rayetta Morrison, a secretary who worked for both McCraig and defendant Alan Stringer from the ‘70s until the mine closed.
Court is set to resume at 8:30 a.m. Friday and will end at 2 p.m. due to the Good Friday holiday.
- Nate Hegyi (posted 6:15 p.m.)
Grace began after the break by voicing concerns over the government’s plan to use former Grace secretaries to enter Grace documents into evidence. Its concerns were expressed to the court prior to jury’s return.
The government wanted to use the secretaries to lay the foundation of what the document was, when it was drafted, and under whose direction it was created. While 403 concerns were pertinent to Grace’s objections, the defense was just as concerned with 602 personal knowledge issues. Grace argued that the witnesses had no personal knowledge of the subject matter of the documents, and asked the court to have people with actual personal knowledge testify to the documents, not the secretaries. However, even using people with personal knowledge was problematic, said Grace, because the documents would be disembodied with that limited testimony and both parties would be working to fill in the gaps and would likely taint the overarching meaning of the document.
The government responded that it was not concerned about the witness having knowledge about the content of the document; it simply wanted to use this as a foundation mechanism for getting the document in. Of course, the documents would not go to the jury until the foundation had been laid and briefs had been filed, as no piece of evidence would go before the jury unless the judge overrules any objections under 402 and 403.
Cross-examination of Steve Venuti concluded once the jury reentered the courtroom. Carolyn Kubota made it a point to show that her client, Jack Wolter, had never cut corners when it came to worker safety. She introduced several exhibits demonstrating Wolter’s use of Grace funds to provide protection for tremolite dust to illustrate this point. In particular, an expense sheet titled “Dust Reduction Improvements” showed how several “dust control parts” were added to machines in 1976 to act as a primary defense against worker exposure to tremolite dust.
The government then called three secretaries to testify about Grace memos and letters they had prepared. The first was Carolyn Horka, the secretary to general manager Bill McCaig. Horka worked for Grace from 1979 and 1985. During her employment, she was responsible for typing his letters and memos. The government tried to enter six documents this afternoon, but was always met with 602 and 402 objections. Judge Molloy consistently sustained the 602 objections and reserved the 402 objections for later.
Rayetta Morrison was the second witness of the afternoon and had worked as a secretary under Mr. Olvario, Mr. McCaig, Mr. Vasques and Mr. Stringer. She worked for Grace from 1975 to 1979, then again from 1983 to 1994. In that time she typed correspondence, processed health records and new hires, and worked on payroll. She was also familiar with the health studies of the 1980s and was able to recall some of the documents she typed regarding the issue of whether there was a health issue at Libby. Further she had a role in scheduling many of the pulmonary tests and was aware of why they were being conducted. Despite her ability to demonstrate more personal knowledge than the rest of the witnesses, the documents introduced at this time were rejected under 602, with rulings on the 402 and 403 objections reserved.
On cross examination, Besty Gray successfully admitted into evidence documents detailing the presentation Grace provided on the findings of the study of the health effects of exposure to tremolite. Because Rayetta Morrison was responsible for the RSVPs of the doctors who were invited to the event, she demonstrated sufficient personal knowledge for the admission of the documents.
Finally, the jury was excused so the government could call Ruth Gudz to testify about concerns her husband had expressed over the Libby mine. As a Grace technical consultant, he visited Libby to conduct an audit of the mine. Mr. Gudz now suffers from a debilitating mental condition that causes him to be unable to testify. However, Judge Molloy would not let the evidence in due to the multiple levels of hearsay involved, the failure to satisfy 805, constitutional issues, lack of relevance, and the risk that the prejudicial value would exceed the probative value of the testimony.
– Katie Mazurek
Steve Venuti was back on the witness stand for cross-examination after the morning recess. The tenor of cross-examination between Venuti and defense counsel was in stark contrast to the adversarial and antagonistic cross-examination of the government’s last witness, Robert Locke.
Setting aside a prior disagreement about hazard evaluation and judgment, Venuti seemed to agree again and again with the characterizations W.R. Grace attorney David Bernick offered. The two were discussing the major regulatory changes coming from OSHA, MSDS, and other government agencies during Venuti’s tenure of the 1980s. Bernick said Grace was undertaking hordes of research during that time with two goals in mind: (1) reducing the tremolite fibers in material leaving Libby, and (2) reducing airborne fibers being released from Libby material.
Venuti agreed with the characterization of Grace as being “smart and innovative; able to keep hitting a moving target.” Venuti agreed, too, with Bernick’s assertion that Grace had “dedicated people thinking through the changes.” Trying to blunt the potential effects of exhibits offered on direct, Bernick went through several of them explaining what the tests were aimed at doing. For example, the splitter test (Exhibit 522) was a way of testing out new ideas for viability, and never measured exposures. Good results from this preliminary, qualitative test led to the idea (binding agents, wetting, etc.) being field-tested for releases and simulated occupational uses.
Carolyn Kubota, attorney for Jack Wolter, made quick work of her questions for Venuti. Through exhibits Kubota carefully described a series of events regarding the new OSHA regulations: new regulations were promulgated, Venuti called the regulations to the attention of Wolter, and Wolter issued guidelines, tasks, and timelines to comply with the new regulations. “Jack didn’t delay, avoid, or hide from the new regulations, did he?,” Kubota asked. “No,” Venuti replied.
Thomas Frongillo, attorney for Robert Bettacchi, took the final turn at cross-examination of Venuti. Frongillo’s first point was that even after Venuti left Grace, it invited him back to conduct refresher courses on subsequent OSHA regulations in both 1993 and 1994. Venuti’s considerable expertise with the regulations was valuable to Grace, and Venuti said it was a “pleasure to return” to Grace and “work with his old friends at the Consumer Products Division.” Frongillo’s second point was that the dangers of asbestos were public knowledge from the time the first OSHA regulations were issued in 1972. Relying on language in the 1972 Federal Register (Exhibit 8967), Venuti agreed with Frongillo that available to anyone who wanted to look, and published for the world to see, was information that asbestos was linked with various, deadly forms of cancer. As far as the federal government was concerned all asbestos was dangerous and all forms of asbestos, while scientifically unique, would be treated the same.
Frongillo made one final point, that even the 1985 Emergency Temporary Standard, lowering the PEL from 2f/cc to .5f/cc, made note of the quality of data it relied on—data that did not include animal studies, such as the hamster study (Exhibit 184), and that there was no need to extrapolate data from animal studies because the high-quality, frequent and thorough epidemiological studies addressing asbestos.
Kris McLean, for the government, began his re-direct when Judge Molloy called for the noon recess.
–Kirsten Madsen (posted at 5:41 p.m.)
Prosecutor Kris McLean began this afternoon’s testimony by calling Bruce Williams, an employee of W.R. Grace from the early sixties through the early eighties. Mr. Williams, testifying for the United States in exchange for immunity, told the jury about his experience working Grace’s Building Products division. Williams discussed having considered placing warning labels on certain products, but felt the airborne fiber levels from use were so minimal that no warning was justified.
On cross-examination, defense attorney David Bernick got Williams to testify that not only had the EPA known of the minimal asbestos releases in certain Grace products, but that the agency had amended its own standards to match the Grace levels.
The prosecution’s next witness, David Walczyk, worked in Grace’s Construction Products Division in Massachusetts from 1966 to 1992. Walczyk testified that he had worked with products containing vermiculite, including work on possible methods to bind it and prevent airborne asbestos fibers. On cross-examination Bernick got Walczyk to testify that studies on ambient fiber counts, including one in Walczyk’s own home, had been reported directly to the federal government, dealing even more damage to the prosecution’s theory that the defendants conspired to defraud the government.
After excusing the jury for the afternoon break, Judge Molloy asked for the parties’ input on a document being prepared at the request of the jury. While jury instructions (which give the law to the jurors) are prepared and argued at the end of the presentation of evidence, Molloy and his clerks have prepared a document that will give the jurors some foundation on the laws about which they hear evidence every day. Molloy estimated that this document would be completed and distributed to the jurors by the end of today’s testimony.
Mark Lancaster -posted 5:15 pm
Former W.R. Grace employee Bruce Williams, who appeared in court today under a writ of immunity with the U.S. attorney’s office preventing him from being charged with any crimes, said that during his time at Grace they complied with government regulations and updated their products to remain that way. When he started as a manager for the company’s building products line in 1970, Williams said that he was unaware of the danger posed by asbestos, as were many at the chemical company.
“Somewhere in that period. I would say more like ’75 was the start of the understanding of tremolite in vermiculite,” he said. “It wasn’t viewed by anyone as a serious problem.”
When government attorney Kris Mclean questioned Williams about the use of asbestos warnings for products such as Monokote, Williams said that any such labels would have exaggerated the danger detected by internal tests.
“The amounts that we were dealing with here were so very small,” he said. “Describing this to a customer would accomplish nothing…you’re warning of a danger that didn’t exist.”
W.R. Grace attorney David Bernick expanded on this point during his cross examination of Williams, establishing that Grace contacted the EPA about the levels of asbestos in Monokote 3 to insure that they were in compliance. Williams said that upon learning Monokote 3 contained too much asbestos, Grace developed Monokote 4, another fireproofing plaster without the added asbestos of its predecessor. Bernick said that the EPA was well aware of the levels in the new form and adapted their regulations accordingly.
“The EPA itself revised its own proposed standard to permit Grace to sell these products knowing it had the trace [asbestos],” he said.
The next witness called by the government, former Grace engineer David Walczyk, developed equipment to reduce asbestos fiber counts and also performed tests on various building products. One such test occurred at his own home, where insulation was added to his attic while monitors recorded fiber amounts throughout the house.
McLean ended his direct examination when Walczyk could not recall the fiber levels detected in his living room. Under cross examination, Bernick established that the results of this test and others were sent to the Consumer Products Safety Commission, and then rested for the court’s afternoon break.
–Kyle Lehman (posted 4:30)
The defense finished its cross-examination of industrial hygienist and former Grace toxicology coordinator Steve Venuti Thursday morning by trying to show that as government regulations changed to more severely regulate asbestos, Grace changed as well.
Bernick presented a series of Grace memos that showed the company changed its practices to comply with new Occupational Safety and Health Administration standards implemented in the 1980s. Venuti was party to these developments and testified that Grace’s changes in handling, processing and treating the Libby vermiculite were successful in meeting OSHA standards.
“So, you’d call this a success story,” Bernick asked, and Venuti agreed.
In 1986, OSHA changed its regulations to reduce the permissible exposure levels (PEL) for asbestos. The PEL was reduced from 2 fibers per cubic centimeter to 0.5 fibers per cubic centimeter.
Although it didn’t take a toxicologist to see that handling dry vermiculite was a dusty process, research and testing did reveal that dust could be reduced by treating the product. The company experimented with applying water and soybean oil to the vermiculite as binders, or surfactants.
A binder or surfactant is applied to reduce a substance’s friability, or dusty nature. The soybean oil and water applied to the Libby vermiculite were intended to adhere to the tremolite fibers to keep them from becoming airborne. The expansion plants and expanded products were notoriously dusty and of particular concern to the company.
With binder applied to the vermiculite, Grace’s test results complied with OSHA standards. And Venuti, as part of Grace’s research and toxicology team, analyzed this data.
Bernick asked Venuti whether after “these binders were in place, the expanded products were in compliance with the new PEL?”
Venuti said they were, that the expanded products showed dust emissions below the OSHA standard. Bernick established that while Venuti was with the company, the company lived by the letter of the law.
“By the time you left the company,” Bernick said, “the company was in compliance with the then-existing regulations.”
And Venuti reaffirmed Grace’s compliance with the law.
Defense attorney Robert Frongillo also briefly cross-examined Venuti. Frongillo said that his client Robert Bettacchi, a Grace executive charged with endangering company workers, sought consultation from Venuti on reducing workplace hazards.
Frongillo presented a document that showed Grace had requested Venuti’s input, after Venuti had left the company, on reducing occupational health risks. Because the company sought the counsel of Venuti, Frongillo said, it’s clear that Bettacchi and the company had concerns for their workers and took steps to ensure their safety.
Shortly before the lunch recess, the prosecution began its redirect examination of Venuti. But government attorney Kris McLean had a hard time asking Venuti a question without objections from the defense. Molloy sustained most of these objections and appeared frustrated with the prosecution.
The prosecution’s redirect examination must be different from their direct examination, Molloy said.
“Please recognize your obligations,” Molloy said to the prosecution. “Be cognizant of the rules. And you will not get any witness to argue your case for you.”
– Will Grant (posted 1:55 p.m.)
“There is nothing to hide here,” defense attorney Bernick asserted as he cross-examined witness Steve Venuti. The cross-examination focused on using Venuti to show that not only was W.R. Grace complying with all OSHA regulations, the company was actually “ahead of the curve.”
In 1977, W.R. Grace was sending out Material Safety Data Sheets (MSDS) to bulk and construction customers. W.R. Grace sent out MSDS to give basic information about hazards working with Libby products. Venuti tried to say such data sheets were common in industrial sales of chemical materials in the 1970s. However, Bernick continued to argue W.R. Grace was not required to send MSDS until the OSHA regulations in 1983; ergo, it was ahead of the curve.
The defense tried to introduce Exhibit # 6983 to refresh Venuti’s recollection on the date W.R. Grace started using these data sheets. Venuti was not working at W.R. Grace at the time, and the evidence could not be introduced because Venuti testified it did not refresh his recollection.
The OSHA regulations were enacted in 1983. Under the terms of the regulations, state law was preempted by federal legislation. Bernick led Venuti to testify that OSHA was designed to protect and enhance the safety of the workplace. Bernick emphasized that W.R. Grace complied with all OSHA regulations, and Venuti could only respond to the leading questions with yes, W.R. Grace did in fact comply.
The defense presented Exhibit # 5383, which was already in evidence. This exhibit was a MSDS from April, 1977. The document warned that the consumer product contained a naturally occurring contaminant which could be released as asbestos fibers even if handled in the normal way. The warning stated that the dust created by the handling can exceed the OSHA levels.
Next, Bernick introduced defense Exhibit # 11238, which was a MSDS from 1984. Bernick used this document to show that W.R. Grace was adapting to the OSHA regulations. The MSDS included the warning that the use of Libby products containing asbestos could cause risk of cancer and respiratory disease. W.R. Grace advised the consumer to avoid creating dust in any facility.
Venuti testified that the ultimate issue for W.R. Grace at the time was whether the company should label products as carcinogenic or hazardous. Bernick seized on this answer, and Venuti agreed that the ultimate issue was not some secret new information. Bernick asked, “Was the tremolite contamination a secret?” Venuti responded, “No.” Bernick then asked if the hazard of tremolite was a secret. The answer was no. Finally, Bernick asked if it was a secret that tremolite could break and cause health effects. Again, Venuti responded negatively.
Venuti finished his testimony by saying that W.R. Grace looked at three things when deciding to label a product as hazardous or carcinogenic: science, law, and business. The company used the science and the law to decide if it was required to label. W.R. Grace made business decisions to decide if it was feasible to label a product as hazardous, especially since the company’s competitors would use that label as a marketing strategy.
The morning session concluded with Bernick using Venuti’s testimony to dispute the prosecution’s theory that W.R. Grace had some secret information which it was hiding from the government. Bernick used the testimony to assert that the government, and everyone else, knew of the hazards.
– Maggie Braun (posted 1:30 p.m.)
W.R. Grace used data sheets to warn of asbestos content in its industrial products before government regulations required them to do so, Grace defense attorney David Bernick said during his morning cross-examination of Steve Venuti, an industrial hygienist and former toxicology coordinator for Grace.
Bernick built up his cross-examination to show that Grace began using these data sheets in the ’70s, before government regulations required them to in 1983. Venuti confirmed that the sheets were used before ‘83, but did not know the exact date they began and would not agree that Grace was “ahead of the curve.” The “material safety data sheets” were used to notify industrial customers such as construction companies that tremolite material appeared in Grace products.
Bernick also said that Grace’s products fell below government requirements on exposure and other levels of asbestos, which led to a discussion within Grace in the late ‘70s over whether it was necessary to label the product as carcinogenic or disease causing. By presenting both this and the warning labels, Bernick sought to dismantle the government’s conspiracy charge against Grace.
“The issue was not whether there was secret or no information to be disclosed,” Bernick said. “The issue was regulatory disclosure requirements.”
Bernick illustrated his point through various Grace documents and a large chart propped up beside him, which he often referred to. The defense attorney responded gleefully to Venuti’s answers, many of which confirmed or at least failed to contradict his arguments.
However, Venuti said that while Grace met government Occupational Safety and Health Administration requirements, other issues such as community right-to-know regulations had to be considered. These issues led him to support labeling Grace’s products carcinogenic during the company discussions. Government standards measured how much asbestos fibers were released during a product’s intended industrial use, not how much tremolite or asbestos material the product was composed of.
Venuti said he worried that the products could still release fibers above regulations if they were used for other activities. His view conflicted with other members of the company.
“My different position was that you could not reasonably exclude other uses … that could release fibers,” Venuti said. “It was my belief that the product could release fibers in levels above exposure limits.”
Bernick argued that Grace would be “stigmatized” for applying a carcinogenic label to its products, and had a natural business interest to avoid the label if its products still met government standards. He mentioned a Grace product that had been forced to change in the past and was still attacked by corporate competitors.
“Even though Grace had made that change, Grace’s competitors still went out in the marketplace for years … and said ‘Grace’s product has got asbestos, and it’s bad,’” Bernick said.
To this, Venuti replied that you cannot predict “product misuse” by customers, a statement which Bernick happily countered.
“I’m glad we went down this road,” Bernick said before mentioning several cases of misuse, apparently intending to show how ridiculous the claim could be. One instance involved feeding asbestos laden material to pigs and cattle.
“That’s a new one on me,” Venuti replied.
–Ryan Thompson (12:26 p.m.)
Before the jury entered this morning, Judge Donold Molloy announced that several pieces of the prosecution’s evidence would not be admitted. Documents 296A, 293A, 437A, and 437B will not be admitted, documents which involved a study on asbestos exposure. Molloy said they were intended for use during Locke’s testimony.
The documents were a description of civil suits, and do not have “value” in assisting the government’s case, Molloy said. The documents presented a risk of “undue prejudice,” a “waste of time,” and “confusion of the issues,” the judge explained.
Molloy also discussed two upcoming government documents that may be excluded for similar reasons, and addressed a juror’s request for a copy of statements after the jury left on Wednesday afternoon. Molloy said he will decide the juror’s request later in the day.
–Ryan Thompson (12:16 p.m.)