andrew schneider investigates

June 11, 2009

Health risks from silver nanoparticles a growing threat to consumers and workers.

Silver nanoparticles, untested for safety, are being used in a growing number of children’s toys, babies’ bottles, cosmetics, dishwashers, underwear and hundreds of other items.
A report issued today says that consumers and workers who make the products may be at risk.

Silver nano particles   Photo ACA

Silver nano particles Photo ACA

The report, authored by Friends of the Earth and Health Care Without Harm Europe, details what they call “the growing public health threat posed by nano-silver particles in consumer products.”

“What we’ve learned is alarming,” said Ian Illuminato, one of the report’s authors.

“Major corporations are putting nano-silver into a wide variety of consumer products with virtually no oversight, and there are potentially serious health consequences as a result. The workers who manufacture these products, the families that use them, and the environment are all at risk.”

Human consumption of silver is not new and medical historians have traced its health benefits back

Ian Illuminato, Friends of the Earth

Ian Illuminato, Friends of the Earth

more than a century. At that time, the literature reports, people had ready access to beneficial silver in their diet because it was plentiful in surface and ground waters.

“What we’re concerned about is when the silver is scaled to nano size because evidence shows that it is far more potent. That potency – the impact on human health – is what is we don’t yet know,” Illuminato told me.

His concern is shared by other scientists who also worry that nanosilver doesn’t distinguish between good and bad bacteria. It kills all bacteria, even the good bacteria that humans and animals need to survive.

“We are playing with fire, especially at a time when anti-bacterial resistance is an ever increasing medical problem globally,” said report co-author Dr. Rye Senjen, of Australia.

“Do we really need to coat cups, bowls and cutting boards, personal care products, children’s toys and infant products in nano-silver for ‘hygienic’ reasons?” he asked.

The  Korean manufacturer Samsung made the first clothes washer with a nanosilver-coated drum and said it would kill over 600 different bacteria.

Nanoparticles are one billionth of a meter in size or, as one scientist told me at a nano-in-food conference this week in California, “Slice a human hair lengthwise into a 100 slivers and a single one of those is what we’re dealing with. We are manipulating single molecules and atoms.”

Andrew Maynard

Andrew Maynard

The Project on Emerging Nanotechnologies, one of the best known centers for nanotech policy research, presented testimony before Congress last year and cautioned that hundreds of products with nano particles are on the market, with three to five new ones added every week.

Andrew Maynard, the lead scientist for the Project, told me in an telephone interview from the Regulating Nanotechnology in Food and Consumer Products conference in Brussels yesterday, that the report raises some uncertainties that must be addressed.

“There is no indication that silver at the nano scale goes wild in the body. However, it is known that silver becomes more toxic at the nano level,” Maynard explained, adding, “That does not mean it always does more damage.

“More research must be done.”

A coalition of consumer protection, public health and environmental groups filed a petition with the Environmental Protection Agency demanding the agency halt the sale of consumer products containing silver nanoparticles

The petition called for the EPA to:

* Determine the potential human health and environmental hazards from nanosilver with nano-specific toxicity data requirements, testing and risk assessments.

* Clarify that nano-silver is a pesticide and thus must undergo the rigorous and extensive testing process involved in registering a pesticide. Moreover, products with nano-silver must carry a pesticide label.

* Take immediate action to prohibit the sale of nano-silver products as illegal pesticide products with unapproved health benefit claims.

The authors of the report say that EPA is not “doing near enough” to address the hazard.

“This report should be a kick in the pants to EPA to start fining companies that use nanosilver without going through the registration process,” Dr. Jennifer Sass, senior scientist and nano specialist for the Natural Resources Defense Council, who is also speaking at the Brussel’s meeting told me in an email.

EPA says it is ready to take action if asked.

“The EPA is prepared to address the nanosilver issue but nobody has applied to the EPA with a product. It hasn’t happened,” said Dale Kemery, an agency spokesman.

Nanoized silver is not the only metal that worries regulators and the public health community. Carbon nanotubes, nano zerovalent iron, cerium oxide and others are on some government hot lists.

The California Department of Toxic Substances Control has ordered all manufacturers who manufacture, import, sell or use nano material with those metals to supply the department with extensive information on their source, use, transport, and disposal.

According to the EPA and FDA, they have no plans  to collect similar information.

The debate, to some extent, centers on semantics. Pesticides kill bugs and other things and their use is controlled by the government.

The Nanotechnology Industries Association and other trade groups insist that nanosilver is antimicrobial – it goes after germs – and is not a pesticide.

May 28, 2009

EXCLUSIVE: New butter flavoring for popcorn and other food products may be no safer than the lung-injuring diacetyl it replaces.

Scientists worry that the “new,” “completely safe” butter flavoring used on popcorn and in other foods may be as dangerous as the lung-destroying chemical, called diacetyl, that it replaced.

Diacetyl-linked jury verdicts of tens of millions of dollars for injured flavoring workers and the diagnoses of lung damage in at least three popcorn-loving consumers forced popcorn packers and other food processors to stop using the chemical butter-flavoring two years ago.

Orville Redenbacher rose from the grave to proudly announce in a TV ad that the company’s popcorn was now diacetyl-free. And other manufacturers plastered that message in large type on the side of their packages.

popcorn-bowlAWhen asked in the last two years how they were getting the buttery flavor consumers want without diacetyl, the largest popcorn makers answered with a “no comment,” saying the secret flavoring was safe, but proprietary.

Fortunately, a group of government health investigators at the National Institute of Occupational Safety and Health have begun lifting the veil of corporate secrecy.

“Two possible substitutes are starter distillate and diacetyl trimmer,” NIOSH Drs. Kathleen Kreiss and Nancy Sahakian just wrote in a newly released book, “Advances in Food and Nutrition Research.

“The distillate is a diacetyl-containing product of a fermentation process. The trimmer is a molecule containing three  diacetyl  molecules,” they wrote. “The inclusion of these alternative substances neither eliminate diacetyl nor assure safety for workers.’’

Kreiss, chief of NIOSH’s Field Studies Branch, also talked about the popcorn advertisements in informal remarks prepared for the American Thoracic Society conference earlier this month in San Diego.

“The wording here (no added diacetyl) is telling,” said Kreiss, whose team of worker health and safety investigators were the first to respond to the reports of disease at Midwest popcorn plants.

In the presentation to the specialists in respiratory disease, Kreiss discussed the flavoring to which many food producers had switched.

“The easiest substitute for the chemical diacetyl is starter distillate, a fermentation product of milk which contains up to 4 percent diacetyl. The chemical may not be added, but diacetyl is still in butter-flavored popcorn,” she explained.

She said some of the substitutes are better able to penetrate to the deepest parts of the lung and are unlikely to be safer to inhale than the original diacetyl.

Physicians, scientists and industrial hygienists at NIOSH’s Division of Respiratory Disease Studies are working hard on multiple efforts to investigate the possible toxicity of butter flavoring chemicals being used as a substitute for the diacetyl.

“We’re trying to identify the mechanism of diacetyl-induced injury. And if that happens, it will help us identify other potentially hazardous compounds workers may be exposed to in the flavoring industry,” said Dr. Ann Hubbs, a veterinary pathologist in NIOSH’s Health Effects Laboratory Division.

Hubbs told me last week,  “We are trying hard to answer the question of why diacetyl — and potentially the related substances — are so very toxic,”

Kreiss and her team have responded to plants using flavorings throughout the country. They have watched patiently as OSHA first ignored and then moved haltingly to comply with congressional orders and union pleas to develop diacetyl exposure standards that would protect workers.

But even though President Obama’s new team at the Labor Department promised speedy action on diacetyl standards, many public health and occupational medicine experts worry that it may be too little, coming too late.

“As regulatory action develops, the flavor industry has introduced diacetyl substitutes, which might not be regulated by a diacetyl standard now on the drawing board,” Kreiss said in notes accompanying her slide presentation to the chest doctors.

Dr. Celeste Monforton and her colleagues at George Washington University’s Department of Environmental and Occupational Health have been following the diacetyl issue for years.

She echoes NIOSH and says that OSHA and the Food and Drug Administration must pay attention to the substitutes in its rulemaking if workers and consumers are to be protected.

“We know far too little about the the substitutes to diacetyl or reformulated diacetyl-compounds that food manufacturers are now using, or planning to use,” she told me this week.

As a part of its rule making, OSHA must insist that the manufacturers provide information on the chemical composition and toxicity testing of their substitutes, she said.

“We are dealing with the safety of workers and consumers and secrecy cannot be justified,” Monforton said.

“This potential danger goes well beyond just popcorn.”

May 21, 2009

Government is sending money to care for asbestos victims in Libby. Will W.R. Grace keep picking up medical bills as it promised?

People in Libby, Mont. are through licking their wounds and are working to put the acquittal earlier this month of W.R. Grace and its executives behind them.

But many say they live in fear that the innocent verdict offered up by the jury will give the former owner of the asbestos-contaminated vermiculite mine the chutzpa to end the insurance coverage they’ve promised to provide to the hundreds of miners and townsfolk sickened by the lethal fibers the corporation pulled out of the ground.

Montana Sen. Max Baucus today passed some good news on to the tiny town in the state’s northwest corner. He says he got the Department of Health and Human Services to free up $6 million to provide health care for people with asbestos-related illness.

“It’s really great news, and we can use some of that up here,” said Dr. Brad Black, who runs the Center for Asbestos-Related Diseases clinic in town.

Dr. Brad Black. (c) Photo a. schneider

Dr. Brad Black. (c) Photo a. schneider

“Everyone was scared to death that Grace would stop paying the little it does pay of the medical expenses of the people here,” Black told me today.

With the high cost of medication, oxygen and hospitalization, the $6 million won’t go very far to provide screenings and health care services to the hundreds of people battling asbestos-related illnesses.

However, the senator says that major help may be on the way as he believes he can get a Public Health Emergency declared for Libby.

Battles had been fought throughout the Bush Administration, by OMB and EPA for years over those three little words.

Paul Peronard, Chris Weis and Aubrey Miller – the trio of EPA emergency response and public health specialists who were the first to arrive in Libby a decade ago –  had their careers threatened repeatedly because they saw the need to declare the emergency.

They fought for the designation because it would permit EPA to do the complex cleanup the unique tremolite asbestos demanded, the town needed and would make the government responsible for ensuring the delivery of adequate health care.

The Bush Administration fought the effort because it was trying to force an industry-sponsored asbestos litigation reform act through Congress and wanted no attention brought to the devastation asbestos could impart.

The Democratic lawmaker lambasted the decision to not declare a public health emergency at the time, calling it an “outrage.”

Baucus said a public health emergency would authorize cleanup work in homes and other structures as well as require the federal government to provide screenings and health care for Libby residents with asbestos-related disease.

The public health emergency would be declared by the Environmental Protection Administration.

“I’ve talked with the head of HHS, Kathleen Sebelius and the head of the EPA, Lisa Jackson, and they both know how important it is to help the folks in Libby,” Baucus said

“We all have been working for months together to figure out how to best help folks affected by this tragedy.”

Baucus holds senior positions on oversight committees for both HHS and EPA.

He described his action as a step to bring justice to folks in Libby “who were poisoned at the hands of Grace.

“We expect this Administration to make decisions based on sound science and to right the sins of the last Administration.”

May 18, 2009

Nanoparticle use grows in consumer products; safety testing inadequate, experts say.

Filed under: FDA,Nanotechnology,Public health legislation,Worker Safety — Andrew Schneider @ 12:21

The exciting and potentially benefit-laden world of nanoparticles continues to expand at rates that surpass the growth of any technology in history. Many public health leaders plead for caution and additional research into the widespread human and environmental hazards that could exist with use of nanotechnology. They worry that far too little is being done.
Many of you have written to ask how many products based on nanotech are on the market now or are close to being released for sale. It is almost impossible to know with great accuracy.
Most corporations decline to comment, citing proprietary or competitive concerns. The federal government keeps no tally, and a friend of mine in the Food and Drug Administration says that’s a major mistake that someday will “bite us in the butt.”
There is one group that is watching nanotechnology more closely than anyone else. The Project on Emerging Nanotechnologies is a partnership between the Pew Charitable Trust and the Woodrow Wilson International Center for Scholars. The project was formed in 2005 to address the social, political, and public safety aspects of nanotechnology.
The experts at the partnership acknowledge that their tallies are far from comprehensive, but they offer the best picture out there of what industry is doing with nanoparticles. And they offer the only inventory of consumer products around.

nano products
Here is one of their graphs and some of their facts:

The Consumer Products Inventory today lists 807 products, produced by 457 companies, located in 21 countries.

The inventory is growing fast: from 212 products when it was first released in March 2006, to 803 products in August 2008.

The largest category is health and fitness, including 126 cosmetics, 115 items of clothing, 153 personal care items, 83 types of sporting goods, 33 sunscreens and 40 water filters.
The inventory now includes products from many countries, including the United States, Korea, Japan, the United Kingdom, Germany, France, China, Taiwan, Australia, Israel, Finland, Mexico, Switzerland, New Zealand, Malaysia, Thailand, Sweden, Singapore, Canada, and Italy.
The Washington –based researchers say U.S. based companies are marketing the most products (426), followed by companies in Asia (227), Europe (108), and elsewhere around the world (38).
I will try to post updates often on this topic. But here is a link to browse the project’s inventory database:

May 5, 2009

Testimony in W.R. Grace trial ends as defense fails again to prove that EPA’s top emergency response wizard was a cowboy who made bad decisions.

Cutting two expert witnesses they had earlier said were vital to their case, the defense in the W.R. Grace criminal trial rested today at 3:10 p.m. and judge Donald Molloy quickly headed to chambers with the lead lawyers to discuss the upcoming public debate over the final instructions to the jury.

The last witness in the 10-week-long ordeal went to one who deserved the honor of having the last word– Paul Peronard. He started and headed the EPA’s emergency response in Libby and had the integrity to push for the criminal investigation that led to this trial. He also started the trial as the prosecution’s lead-off expert.
uncivil-action1

What was bizarre today was that Peronard was called by the defense. The prosecution had wanted to call him back to the stand to address a few points raised last week by Grace’s top spokesman, William Corcoran.  Grace’s top lawyer, David Bernick, first opposed the idea, then made it his own.

At one point Tuesday,  Bernick was rubbing his hands together in anticipation.  He was going to take another shot at discrediting Peronard, showing him to be a cowboy who was scorned by his EPA bosses in Washington.

Bernick first tried to get Peronard to admit that he thought of himself as a “king,” a statement attributed to him during earlier testimony.

Peronard had been asked, cajoled and pressured – nicely and often — to return to Libby after his initial stint there as on-scene coordinator to try to sort out the disputes and non-stop peeing matches over the cleanup of homes and property that had erupted after his departure.

Not one to blow his own horn, all Peronard would tell Bernick was that he wanted to ensure that he would have enough authority to get the job done.

Bernick let it drop and went on to the issue he thought would blow the on-scene coordinator out of the water.

Waving them like a flag, Bernick held up copies of email from John Malone, a member of EPA’s headquarters’ staff,  criticizing the actions and recommendations of Peronard and his teammates, Dr. Aubrey Miller and toxicologist Chris Weis.

Malone didn’t like the Libby team  and did not have much good to say about EPA Region 8 in Denver, where the Libby operation came from. He repeatedly denounced plans to remove dangerous Zonolite Attic Insulation from Libby homes and charged that Miller and Weis were using bogus science.

Bernick was almost lustful as he tried to get Peronard to admit that Malone’s e-mails were proof that headquarters opposed the team’s plans.
Not so, Peronard said again and again as Bernick repeated the same question.  Malone, Peronard said, did not speak for headquarters

What Peronard did not explain (probably because it’s not his style) were the reasons underlying Malone’s efforts to stifle the Libby operation. Peronard and his colleagues knew that Malone had headed the crucial, and embarrassing, 1982 and 1985 EPA studies of the tainted vermiculite from Libby. Rather than take actions to order Grace to stop exposing it workers, their family members and the town to lethal levels of asbestos, Malone stuck the reports on a shelf.

No one knows if lives could have been saved if Malone had paid attention to the very real dangers clearly flagged in the studies he babysat.

Peronard also didn’t tell the jury that at the same time that Malone was writing e-mails denouncing his team, EPA’s administrator was awarding Miller, Weis and Peronard for their outstanding work.

Peronard was permitted to leave and the judge told the jury: “I believe you have heard all the testimony you’re going to hear in this case.”

Smiles lit up the faces in the jury box.

W.R Grace defense lawyer says plagiarism proves prosecution witness has lied.

The last day of testimony in the W.R. Grace criminal trial began with the defense calling a former Libby city attorney and an ex-Grace accountant. Both were quickly questioned and dismissed.

But drama surfaced soon after Defense Attorney Thomas Frongillo began questioning Melvin Parker, the owner of the nursery he built on the site of the former Grace screening plant at the base of the road to the mine.

Frongillo, who represents former Grace Senior VP Robert Bettacchi, said his intent was to show that Parker “flat out lied” when he said he didn’t know that the mine was contaminated with asbestos that was harmful to humans.

This was a path that other lawyers had tried to go down with little or no success.

Frongillo, who served 10 years as a assistant United States attorney in the dog-eat-dog legal swamp of Boston, pressed Parker hard about when he learned about the asbestos.

The nurseryman said it was in the PI series on Libby in November 1999.

“Not so, Frongillo said, and he showed the jury 1993 report from Patrick Plantenberg, a Montana State official who worked on the mine reclamation. The lawyer also read a paragraph from a lengthy report that specifically outline the risks from asbestos.

Plantenberg said he had spoken to Parker in Sept. 1993 and sent him a copy.

Parker insisted he had never received the document.

Frongillo, who had kept his cool over the past 10 weeks was getting hot and Parker was  unbending and loud in his denials.  Sparks were flying.

The defense lawyer said he knows that Parker received it because he had plagiarized the language describing the asbestos danger and used it in a management plan he had submitted to Grace when Parker and his wife wanted to buy the old mine.

The words were almost identical but Parker vociferously and repeatedly denied that he lied.

Frongillo slowly shook his head and returned to his seat.

May 4, 2009

Truth be damned. Some watchers of the W.R. Grace criminal trial say two little words from defense lawyer “special relationship” could sway the jury’s verdict.

There is a slight lingering stench in the Missoula courtroom where the criminal trial of W.R. Grace is two days from going to the jury.

Many blame it on the odorous performance of Grace’s star lawyer David Bernick and his repeated assertions that a Robert Marsden, an EPA criminal investigator had a “special relationship” with discredited witness Robert Locke.

The old photo of Grace's top legal gun David Bernick came from his firm's website.

The old photo of Grace's top legal gun David Bernick came from his firm's website.

With a theatrical delivery, feigned disgust, that a Shakespearian player would covet, Bernick read from innocuous emails between the agent and the witness as if they were confessions of drug dealings, or payoffs, or selling little children or possessing WMDs.

Few dispute that the prosecution screwed up its obligation under law to get information and documents on Locke — a former Grace official and crucial witness — promptly to the defense, and they’ve been punished for it. But that has nothing to do with the deceptive picture Bernick has painted for the jury on the spurious “special relationship.”

I shared some examples of language from some the emails that the enormously successful corporate lawyer used as the basis of his accusations with  seven lawyers or law professors and past or current federal investigators.

All concluded that the electronic correspondence indicated that Marsden’s actions were appropriate, completely professional and just the way investigators routinely work to maintain contact with a witness. There was nothing “special” about it.

Some legal observers say it won’t matter in the end and that the jury will see through Bernick’s ploy.

Maybe.

I have greater concerns. While I know that the sometimes distasteful Bernick is considered by the business press to be among the best there is in defending corporations like Grace, tobacco companies and makers of breast implants, I am amazed that an experienced jurist like Judge Donald Molloy didn‘t yell foul  at the “special relationship” ploy.

His honor has referred to the phrase from the bench — both verbally, and I’m told, in writing. Some people who say they have known or appeared before the judge for ten or more years say that with Molloy’s knowledge of how investigators function, they can’t believe that the judge permitted Bernick’s charade.

Molloy repeatedly insists that all of his rulings and action are based on law and not something he cobbles up behind the closed doors of his chamber.

W.R. Grace’s top PR executive says he didn’t lie, he just never saw studies showing vermiculite insulation was dangerous.

For me, it was surreal to see W.R. Grace Vice President William Corcoran on the witness stand in the Missoula courtroom in the criminal trial last week.
He is the boss of public and regulatory affairs for the world wide company, which means he deals with the press and congress and he’s well suited to do both. He and I both became involved with Grace in 1999, and that’s when we met.

uncivil-action1

He told the jury on Thursday that neither he nor Grace’s new CEO had ever heard about the problems in Libby, Mont. until a Seattle newspaper wrote about them just before Thanksgiving of that year. That paper would have been the now-deceased Seattle PI.
Off and on for much of the last decade Corcoran and I would often thrust and parry over what his company had done and what I was writing about it — the mine, fireproofing in the World Trade Center, a declaration of a Public Health Emergency — different topics written for different newspapers.
Corcoran had several things going for him. One, he knew the hot points of environmental regulation because he’d served in top positions on both House and Senate committees handling some of the thorniest environmental issues of the day.   The other thing in his favor was that he isn’t a lawyer.
The interesting thing about our “relationship” (to me) was that I  knowingly only caught him in one lie, half-truth or misleading statement during all those years, which is a hell of a record for most top public relations practitioners.
That deception (in my view) was in his now famous letter of April 10, 2002, to then-EPA Administrator Christy Todd Whitman.   He told the EPA leadership that Zonolite Attic Insulation, which was made from asbestos-tainted vermiculite from Grace’s mine in Libby, was not dangerous.   According to Grace shipping papers, the ZAI was installed in somewhere between one million and 35 million homes and businesses across North America.
In his letter, Corcoran wrote that the insulation poses no risk to human health or the environment and contains “biologically insignificant amounts” of asbestos fibers.
But according to tests and studies run by Grace and later confirmed by the EPA, the insulation can be dangerous as hell.
To a point, Corcoran is correct, ZAI presents minimal risk if it’s never touched or disturbed. However, but if the vermiculite is disturbed by a child playing in the attic, a cable or telephone installer or anyone doing even minor renovations, high levels of asbestos fibers will be released.
The government obviously thought it was untrue also as the criminal indictments cited direct quotes from Corcoran’s letter to support the prosecution’s Obstruction of Justice charges.
When Prosecutor Kris McLean showed Corcoran copies of the studies Grace had done that confirmed the hazard, the company spokesman said he had never seen them before.

Well, I don’t know whether McLean was happy with the answer, but it looks like Corcoran may be batting .1000 in the straight-shooter department. Or maybe not.

Corcoran offered another example of his candor when Grace lawyer David Bernick was questioning him and mentioned the head of EPA’s emergency response team and Grace’s arch villain Paul Peronard.

Not only did Corcoran admit that he knew Peronard but that he’d first meet with the EPA emergency response expert on a cleanup in Georgia years earlier when the Grace executive represented another company. Several Grace lawyers winced when Corcoran volunteered that they’d gotten along and the Peronard had done a good job.

It was good finally seeing the official voice on the phone and email in person. But like others in the courtroom, I too am puzzled why Mr. Corcoran wasn’t named in the indictments.

Speaking of dissembling, the final witness of the day, was magnificent in his performance.

Dr. Suresh Moolgavkar, a Seattle epidemiologist and bio-statistician, earned his money from Grace in attempting to discredit the work of Drs. Aubrey Miller, Alan Whitehouse and Jim Lockey. The trio of government witnesses all have hands-on experience   in Libby and with its people. Grace’s witness doesn’t.

Moolgavkar, who has been a paid expert witness for   Bernick and Grace for years, said he had only recalculated the work of Lockey and other scientists and concluded: “There is . . . no evidence of an increased risk at Libby from environmental exposure,” he said.

His statement kind of makes you wonder about the dozens of people in Libby’s cemetery and hospitals with asbestos related disease who never worked at the mine or lived with miners. Or about the almost 2,000 who showed some level of lung impairments when the government tested 10,000 or so townsfolk from Libby and nearby Lincoln County years ago.

April 29, 2009

An excitement-filled day as prosecution rests and defense for W.R. Grace calls its first witnesses.

A lot happened in the Missoula courtroom of Judge Donald Molloy Tuesday. I’m just not sure what it all means.

I’m going to bow to learned lawyers, reporters smarter that I am and just about anyone else to try to sort out the winners and losers in the criminal trial of W.R. Grace.

Here’s what I do know.

Molloy began the day two hours before the jury was seated with prosecutors Kris McLean and Kevin Cassidy defending their case to the judge who had been asked to toss it out for lack of merit and proof.

“This case looks like a complex matter, but at its essence it’s really quite simple. It’s a matter of right and wrong,” said McLean.

They had shown Grace’s wrongs, or at least as many as they could with Molloy’s severe restrictions on case he’d permit. McLean said there are 100 acts that support the charges of conspiracy, and the government has proven 82 of them.

Grace lead lawyer David Bernick interrupted and tried to get Molloy to hurry up the prosecutor’s presentation, if not shut it off completely. “It’s just a bunch of documents,” he told the judge, who overruled him.

And with precision and straightforwardness that was missing though much of the past eight weeks, the prosecutors methodically flashed through a tick-tock of Grace documents that covered 30 years.

Maybe the gang from Grace just had gas, but a couple of the defense lawyers winced as McLean adroitly laid one document upon another, showing documents that had been presented before but now offered in a more telling manner.

Before calling in the jury, Molloy made a blitz of brief announcements and shocked many in the courtroom by announcing first that he had decided that he would not dismiss the case for prosecutorial misconduct as Grace’s defense team had requested.

I had always believed that judges always tipped the players in their cases about major decisions they were about to make. But most of the lawyer and defendants whose faces I could see looked bewildered or stunned.

In the ruling on the decision that he released last night, Molloy said, “The parties have put before the court a range of remedial options.”

– The most drastic is to dismiss the charges, either with or without prejudice. But “dismissal on the basis of prosecutorial misconduct is not warranted here,” the judge wrote.

– The next option is for the court to declare a mistrial. “The defendants have shown no interest in a mistrial, as it would allow the government the opportunity to start anew and, in essence, benefit from its failure to fulfill its disclosure obligations by receiving the proverbial second bite at the apple,” his honor explained.

– The third possibility is to strike the testimony of prosecution star witness Robert Locke in its entirety as a remedy for the government’s alleged violations of full disclosure requirements of Congress and the Supreme Court.

Molloy passionately believes that Locke lied while testifying, and information about him was withheld from the defense until late in the trial.

The judge said that the defense would be given another shot at Locke for a very limited cross examination, and he would tell the jury that it must ignore much of Locke’s testimony on senior Grace vice president Robert Bettacchi, who Molloy believes was “targeted” by Locke.

With the jury seated, Molloy told them a bit of what they’d missed earlier Tuesday and all day Monday, and at 10:18 on the second day of the eighth week of testimony, the prosecution rested.

Bernick wasted no time bringing the first defense witness, former Grace executive VP Elwood “Chip” Wood.

Wood was a good witness, got few laughs, played well to the jury, but rarely looked at them. Bernick directed him well as he walked the jury through a list of actions Grace had done involving its tremolite asbestos problem.

He asked about the government’s charges, but Wood denied that there was any conspiracy.

“I can’t imagine that I would not have been aware of some such conspiracy if it were happening,” he said.

Wood vigorously denounced and discredited a key memo from Locke, which talked about how Grace would stall or thwart an investigation of the Libby mine by NIOSH, the federal worker safety experts.

Wood said he learned of Locke’s memo, “did a slow burn” for weeks and added, “It corrupted everything we were trying to do.”

Bernick then guided the former top boss into explaining that Grace had notified the federal government of the health problems at the mine.

Wood said that the study was “hard evidence that you have an asbestos related problem.”

In his cross-examination, prosecutor Cassidy skillfully regained some of the lost ground when he showed that 10 years after Grace learned that 41 percent of its Libby miners – who had over ten years on the job – had asbestosis, the company was still telling EPA that it had no data to document there was a health problem.

He also got Wood to admit that he had hired Locke for another job when Wood was made a president of another Grace operation, and he volunteered that Locke did good work.

When Locke was called to the stand for the questioning ordained by the judge, Bernick was ready and far too eager. His grilling of Locke was merciless.

He pushed Locke until he admitted that he was wrong when he had testified weeks earlier about the number of meeting he’d had with the prosecution team over the past five years.

He repeatedly hammered away trying to get Locke to admit that he had a “special relationship” with the prosecution. Four, six, eight times. More. And Locke wouldn’t be forced to use Bernick’s pet phrase.

Locke and the jury were both dismissed.

After the jury left, defense lawyers for Bettacchi and William McCaig petitioned Molloy to free their clients because of the lack of evidence since much of Locke’s testimony was stricken.

The guess is that by the end of today, the number of defendants will be reduced again. The judge says he has several pending motions to address.

The last surprise of the day was when the defense said it should rest its case by next week.

April 26, 2009

The district court website for Judge Donald Molloy’s own domain offers link and info on filing charges of judicial misconduct. Thank you.

Filed under: Asbestos,Government & corporate wrong-doing,W.R. Grace,Worker Safety — Andrew Schneider @ 17:28

While significant attention in the criminal trial of W.R. Grace has been focused on yet-to-be-proven allegations of prosecutorial misconduct, an increasing number of readers of this blog and elsewhere are questioning whether Judge Donald Molloy’s actions should be scrutinized.

Good question. Judges have enormous latitude in what they can do in their courtrooms.

Having said that, in 1980, after months of contentious hearings and debate, Congress made its first meaningful attempt to hold federal judges accountable by passing the Judicial Conduct and Disability Act.

In 2002, the House Judiciary Committee amended the Act to add clarifying language, and four years later Chief Justice William Rehnquist tasked Justice Stephen Breyer to review the Act once again.

If you want to learn more about charging a judge with misconduct, you might be as surprised as I was to find all the information you need on the website of Molloy’s own court.  Here’s the link.

On that page, just below the information on the Grace case, is a link labeled “Rules of Judicial Misconduct.”

The link goes to the Ninth U.S. Circuit Court of Appeals – coincidentally, the appellate court that has overruled many of the decisions that Molloy has made in the Grace case. The link will take you to a page where the rules and limitations for filing against a judge are explained. It even supplies the form required to file a complaint against a judge.
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But before you gleefully race off to do so, you should know that the procedure created by Congress permits any person to file a complaint about the behavior of federal judges – but not about the decisions they make in deciding cases.

For example, some points of misconduct include:
–    using the judge’s office to obtain special treatment for friends or relatives;
–    accepting bribes, gifts, or other personal favors related to the judicial office;
–    having improper discussions with parties or counsel for one side in a case;
–    treating litigants or attorneys in a demonstrably egregious and hostile manner. (This is one that, perhaps, should be kept  handy.)

But among the things that the law says are not misconduct are:
–  an allegation that is directly related to the merits of a decision or procedural ruling.
–  an allegation that calls into question the correctness of a judge’s ruling.

Many of Molloy’s dealings with the prosecution appear extreme and often unprofessional, not just to lay observers, like reporters and people of Libby, but to several who practice law for a living.

That doesn’t mean that filing a charge of judicial misconduct would be easy or even possible.

Molloy’s anger at lead prosecutor Kris McLean for appealing several of his decisions to a higher court had been long predicted. Additionally, the judge’s disdain for McLean’s boss, Montana’s U.S. Attorney Bill Mercer, is well known in the U.S. Department of Justice, on Capitol Hill and throughout Montana’s legal structure.

In 2005, Mercer was appointed the number three man in former Attorney General Alberto Gonzales’ Justice Department. The AG said he hoped that Mercer could bring much-needed stability at a time when, apparently with White House urging, several U.S. attorneys were fired for political reasons.

Molloy resented that Mercer did not relinquish the Montana position and, in a letter dated Oct. 20, 2005, urged Gonzales to dump him either in Helena or D.C. Molloy frequently charged Mercer with neglecting his duties in Montana while on dual assignment.

One thing that continues to puzzle some of my contacts in Justice and EPA headquarters is how and why Mercer and David Uhlmann, the then-chief of the Justice Department’s Environmental Crimes Section, got away with pursuing criminal indictments against Grace.

Regardless of how meritorious the indictment may have been, the Bush White House and the Office of Management and Budget wanted absolutely no publicity on any issues involving risk from asbestos exposure. The silence was desired because Bush was pushing extremely hard for tort reform to eliminate lawsuits for personal injury from asbestos – a promise that Republican managers had made to industry.

There are so many weird questions for this judicial exercise for which it would be great to have answers.

For other views on Molloy and his actions, I urge you to read Tristan Scott’s significant story in today’s Missoulian. Here’s a link.

Of particular interest is Uhlmann’s view on Molloy’s actions. Uhlmann is now director of the Environmental Law and Policy Program at the University of Michigan and one of the very few judicial experts willing to speak on the record about the shenanigans in the Montana courtroom.

For example, Scott quoted him as saying: “What’s disturbing, particularly in a case of this magnitude, is that a federal district court judge is using inflammatory language and making allegations of prosecutorial misconduct when there’s so little on the record to support his claims.

“It raises anew the question not only about whether the United States is receiving the fair trial that both sides deserve, but also whether the judge has lost sight of the fact that there is a town of victims in Libby, Montana.”

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