andrew schneider investigates

April 16, 2009

Is an asbestos fiber by any other name a get out of jail card? W.R. Grace says yes.

With the deadline for wrapping up its part of the trial just three court days away, the prosecution continues to try to prove its conspiracy charges against W.R. Grace by bringing in another expert on workers sickened by exposure to asbestos-contaminated vermiculite from Libby, Mont.

Dr. James Lockey, an authority in occupational medicine and a specialist in pulmonary diseases, walked the jury through two studies he did on workers from O.M. Scott, a quarter of a century apart.

But first Lockey, a professor of environmental health and pulmonary medicine at the University of Cincinnati, painlessly explained the anatomy of an asbestos fiber and why tremolite and other Libby fibers are more toxic than the traditional, and far more commonly found commercial asbestos – chrysotile. He told the jurors the Libby fibers stay in the lungs longer, penetrate deeper, and their structure, long and very thin, means a single fiber embedded in the lungs can, over time, break into 50 or 100 fibers.

He described the two studies of workers in the lawn and garden chemical company, and Grace’s largest customer for Libby vermiculite. There are many facets to the study, and even Grace chief lawyer, David Bernick, said it was well done. Take that to the bank.

The bottom line was Lockey’s work showed that even low doses caused bloody plural effusion in workers’ lungs.

During his cross examination, star defense lawyer David Bernick set up his drawing boards on easels, grabbed a fist full of colored pens and spent an hour or more playing teacher and student with Lockey.

Bernick began by trying to draw a human lung and had the doctor walk him through the various sites of asbestos-related disease. He endlessly drew wiggles and graphs on the boards and tried to argue with Lockey about what the physician’s studies showed.

Repeatedly Bernick tried to get Lockey to say his research proved that low exposure to tremolite cannot cause asbestos-related diseases. And repeatedly the doctor told the lawyer he was wrong.

The Grace big gun finally got to where he was heading all afternoon, or so it seemed. All that was missing was a drum roll.

Bernick showed that the first Scott study talked about tremolite fibers, but in the second study, 25-years later, where many of the same workers were reexamined to show progression of the disease, Lockey referred to the Libby fibers as Winchite, richterite and tremolite.

Bernick beamed widely, and he continued hammering away at the same old canard that Grace has been flogging for years.

When it was his turn, defense lawyer Thomas Frongillo jumped on the – fiber by any other name – issue. It is a favorite topic of his and he has done dramatic readings from four or five different laws showing that Winchite and richterite aren’t listed as official asbestos by the government.

Some of my readers have said I should ask him if he thinks it matters that they all sicken and kill?

Lockey, as many other witnesses have tried to say before him, began to explain that it didn’t matter what they called the fibers. They were all, long, thin and lethal.

But objections flew.

Fortunately, this issue will get complete review on Monday when Greg Meeker, a geologist from the U.S. Geological Survey, testifies as one of the two last prosecution witnesses. I believe that it was Meeker’s work that showed singe fibers from Libby contained Winchite at one end, richterite in the middle and tremolite at the other end.

I wonder what Bernick and Frongillo will have to say about that.?


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