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Defense attorney spars with former Grace exec

by Daniel Doherty & University of Montana
| March 26, 2009 12:00 AM

Defense attorney David Bernick tried to cast doubt on the testimony of former W.R. Grace & Co. executive Robert Locke in Missoula on Wednesday during the 23rd day of the notable environmental trial.

Bernick challenged Locke on the general recollection of his own words and writings and the relevance of various studies reviewed by Locke and prosecutor Kris McLean under direct examination.

Some of the most antagonistic exchanges seen so far in the trial began as Bernick and Locke discussed the changing state of government asbestos regulations in the 1970s.

Bernick showed the court a chart that depicted the tightening asbestos exposure standards of various government agencies at the time, and reviewed the information year-by-year. He characterized the regulations as “something of a moving target,” an assertion that Locke agreed with.

That was one of the few issues on which the two agreed.

Displaying a government exhibit used in Locke’s earlier testimony, a memo from Locke saying the company had “wrongfully assumed that the new Libby mill … would solve the fiber problem,” Bernick asked Locke if he knew that the Libby operation was in compliance with OSHA standards in 1976.

“No,” Locke replied. He then went on to say that the document in question was referring to a fiber problem in expanding plants that used Libby vermiculite. The expanding plants were an area of direct responsibility for Locke at the time, while the Libby operation was not.

Bernick asked Locke if he had meant to suggest to the jury that the Libby operation had a compliance problem at that time. Then he asked if Locke knew whether or not Libby had a compliance problem at all.

“You’re talking about …,” Locke began, but Bernick, searching for a yes-or-no answer, interrupted him.

“The Libby Mine and Mill,” Bernick said, “Was it out of compliance in 1976 – did you know?”

“I guess I can’t answer that question,” Locke said.

As Bernick peppered Locke with questions intended to show him as having testified incorrectly, incompletely, or to information outside of his area of knowledge, Locke repeatedly refused to answer questions on Bernick’s terms.

At one point, he replied to a question about whether data from a particular test used time-weighted averages saying, “I can’t answer your question as stated.”

Bernick questioned the government’s representation to the jury of the so-called “drop tests,” saying that they were not real-world simulations, but experimental analogs designed to assess differences between various vermiculite-based materials and treatments of those materials in terms of asbestos fiber release.

“When we talk about these drop tests, the jury should know this was a setup deliberately designed to be severe, correct?” Bernick asked.

“Severe, but not wild and crazy,” Locke said.

“I didn’t ask you wild and crazy; if it were wild and crazy there wouldn’t be any point in continuing, correct?” Bernick asked.

Locke declined to answer the question.

Court adjourned Wednesday afternoon with Locke still on the stand.

(To follow the trial online through journalism and law students at the University of Montana, go to: blog.umt.edu/gracecase ).