andrew schneider investigates

April 16, 2009

Some W.R. Grace lawyers had expected a “fair fight” in the criminal case over asbestos poisoning in Libby, Mont.

Filed under: Asbestos,Government & corporate wrong-doing,W.R. Grace,Worker Safety — Andrew Schneider @ 23:04

Writing a blog is supposed to be fun. And most of the time, I enjoy it.

You can pontificate on things you know nothing about, express opinions on subjects that no one but you care about, get outraged at what you think is absurd. And, generally, make a complete fool of  yourself over the entire nano-size fraction of the world that logs on to read your posts.

But being freshly widowed from my deceased newspaper, I still think what I’m doing is journalism, and the rules that I’ve written under for decades still apply for me — mostly.

And this is the reason why I’m not going to do a normal blog post on what happened in federal court in Missoula at the W.R. Grace criminal trial today

I am so angry at what I watched being acted out in the name of justice this morning that there is no way I could come even close to being civil.  But I am not a lawyer, nor do I play one on TV, so it might be that everything was judicially appropriate.  You read what happened and see if you get concerned.

uncivil-action1
Here are the facts:

Special Assistant U.S. Attorney Eric Nelson began the day by questioning Fred Kover, a career EPA specialist who in the 1970s and early 80s was supervising the group that handled mandatory reports from corporations required under the Toxic Substances Control Act of 1976, These included reports from Grace on asbestos in its products.

The Act says, in part, “Any person who manufactures, processes or distributes in commerce a chemical substance or mixture and who obtains information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment shall immediately inform the [EPA] Administrator . . . ”

Nelson had Kover walk the jury through the law and explain several EPA reports and documents that dealt with what information Grace gave the government and when.

The government needed to show that Grace concealed information on the hazard from tremolite asbestos in its products. And after a bit more than 30 minutes, Nelson must have thought he succeeded and turned the witness over to Grace’s lead lawyer David Bernick for cross examination.

Bernick set up his white boards and, for the next two-and-a-half hours, tried to prove that his client gave the government all the information needed.

It was not just a question and an answer. Bernick roamed all over the playing field, asking rambling, protracted questions, more like he was making closing arguments to the jury than trying to elicit answers from an opposition witness.

The questions were often repeated and, in many cases, his efforts to lead the witness appeared obvious, at least to several in the gallery.

In one exchange, Bernick asked Kover if EPA reports on tremolite asbestos from Libby in the early 80s marked “a sea change” in EPA attitudes in how the EPA viewed Grace issue’s information.
The retired EPA official didn’t give the answer the lawyer wanted, so Bernick repeated the question again, and again, and I believe, again.

Then Bernick asked Kover if the government had shown him a certain document. He answered “no.”

Bernick repeated the question for another 20 or 25 documents, letters or reports, including some that other government witnesses had testified about seeing.

The actor in Bernick surfaced again and he performed well, showing the jury that he was increasingly shocked every time Kover said “no,” the government hadn’t shown him that document. It apparently didn’t matter that most of the paper Grace’s lawyer was questioning Kover about had nothing to do with his testimony or his areas of responsibility within EPA.

Nelson, unlike others on the government’s prosecution team, was willing to try to object to some of Bernick’s actions.  But the objections did little good.  Molloy overruled most.

Finally, Bernick, opening his arms wide towards the jury, asked how there can be a conspiracy to defraud the government when Grace and the EPA had interacted so often on asbestos decades ago.

He shook his head and said he had no further questions.

Nelson tried to redirect, to ask his witness to address some of Bernick’s issues.

It went poorly, with Bernick objecting to 13 of the 16 questions the prosecutor tried to ask. Molloy overruled two or three.  Grace’s lawyer’s objection were mostly for the identical antics he pulled when questioning Kover.

During the lunch break, three of Bernick’s colleagues said either to me or loudly within in ear shot of me (knowing that I have a significant hearing loss) that Bernick’s performance was remarkable.

One said that he couldn’t believe that Molloy let it go on for most of the morning; another remarked that the rules changed when (Bernick) took his seat and the prosecution did the redirect and the third said he expected Grace to win but expected “to do so in a fair fight.”

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4 Comments »

  1. As one nanoparticle, your detailed explicitly coverage is an invaluable aid in anticipating and preparing for what is to come in other environmental crimes trials. Never have attended one of these. You give the insight into the agony sans ecstasy

    Comment by nanoparticle — April 17, 2009 @ 07:37 | Reply

  2. I am just as outraged if not more than you are. My dad worked at W.R.Grace for numberous years. He passed away from asbestosis and I have a number of realatives that also have this horrible disease. I have watched it take the lives of family members and how they could no longer breathe. My father had to have a tracheometry put in and had to watch him because if he could talk then we would have to get a nurse to have him suctioned out. It pains my heart to know that my relatives that have this diorder have this to look forward to. I have to go back to Libby every year to have my llungs examined. I really can’t afford this but in the same time I also have to bring my mom there also because she has been diagnosed with asbestosis also.

    Comment by O'Lene — April 17, 2009 @ 13:10 | Reply

  3. Thank you for the blog and the updates, I have appreciated your passion of the subject and years of reporting about it. As I read this blog and others, as well as online newspaper reports, it has become increasingly clear that Molloy either has issues with the Federal Government and this is his opportunity to exploit that, or he is resentful related to previous decisions made against him before this case came to trial, and he can now act without restraint. Regardless, those who are caught in the middle remain the same people who have experienced the worst of Grace and the justice system. Discouragingly, it feels as though it is over and that, once again, justice has been not been served. From the beginning Molloy said there was no crime committed in this case, his rulings have been made to support that misguided belief. After this is over, I suggest Mr. Molloy build a cabin on the old mine site and enjoy the view…and his future.

    Comment by Cindy — April 17, 2009 @ 18:30 | Reply

  4. I am amazed that the 1977 ( if memory serves) TSCA 8e citation was even brought into play. The data from that report as Frank knows was “iffy” at best. There was no follow up within OTS as I recall other than to dis-believe the submission.

    Comment by richard troast — April 20, 2009 @ 12:50 | Reply


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