Brush must allow review of its papers

May 2, 2000

A federal judge has ordered the Brush Wellman beryllium firm to make available hundreds of internal company documents to a court-appointed official for review.

The judge authorized the official to review the documents to determine whether they indicate the beryllium firm used its lawyers to make fraudulent statements about the dangers of the deadly metal.

Judge Frank Zapata of the U.S. District Court in Arizona ruled that there may be disparities between the information Brush Wellman had about the hazards and what the company said publicly about the risks.

The judge ruled that communications between Brush and its attorneys may reveal those disparities.

He appointed a special master, Arizona attorney Jon Trachta, to review documents between Brush Wellman and its lawyers to see whether those records should be turned over to attorneys who are suing the beryllium firm.

The judge's March 31 ruling is part of an ongoing legal battle between Brush Wellman and lawyers for George Faccio, a former electrician who alleges he contracted an incurable lung disease at Brush's plant in Tucson.

One of the electrician's lawyers, James Heckbert, is trying to get internal Brush Wellman documents that the firm has been withholding; Brush says the records are exempt from disclosure because of attorney-client privilege.

In 1998, Mr. Heckbert filed a motion in an attempt to pierce the attorney-client privilege. He cited a long-standing rule of law: Attorney-client privilege does not protect communications between a client and attorney made in furtherance of a crime or fraud.

According to Mr. Heckbert's claim, Brush Wellman has used its attorneys to conceal the true dangers of beryllium. He alleges "that for approximately 40 years Brush Wellman has been using its attorneys to facilitate a fraud regarding the safety of beryllium.'' Brush's attorneys, the motion states, "have been aware of this ongoing fraudulent scheme.''

Mr. Heckbert alleges that Brush Wellman, through its attorneys, hid evidence that the federal safety limit for toxic beryllium dust was not protecting workers from beryllium disease, a chronic lung ailment.

Judge Zapata ruled that there was enough evidence of a possible fraud to appoint a special master to review documents to see whether they should be released. He said the attorneys suing Brush "have made a sufficient showing that there is a factual basis adequate to support a good faith belief by a reasonable person'' that such a review may reveal evidence that Brush used its attorneys to further an ongoing unlawful scheme.

In support of his ruling, Judge Zapata cited several documents, including communications in 1974 from a Japanese beryllium producer and its medical consultant to Brush Wellman regarding reported cases of beryllium disease in Japan at exposures under the safety limit.

"Also compelling,'' the judge wrote, is a 1977 company document regarding a Brush customer reporting a case of beryllium disease under the limit.

The judge noted that Brush Wellman subsequently told federal regulators in 1977 that "the record demonstrates that there is no evidence of any occupational incidence of acute or chronic beryllium disease at or below the exposure levels in the existing standard.''

Judge Zapata noted that internal documents were copied to Brush Wellman's attorneys.

In an interview, Mr. Heckbert, a lawyer representing numerous beryllium disease victims, said Brush Wellman has withheld about 2,700 documents from him. He said it may be weeks before any documents are turned over.

Mr. Heckbert called the judge's ruling significant "because an impartial third person is going to look at these documents and determine whether Brush has used its attorneys to promote a fraud.''

"If it finds that to be a fact,'' he said, "those documents will be turned over to us, and we can then use those with a jury to show Brush Wellman's knowledge that people were going to develop the disease when Brush claimed they were safe.''

Within the last year, at least 20 lawsuits have been filed by workers or their families against the company.

Brush attorney Thomas Clare declined to comment, saying the company does not comment on pending litigation. In the past, the company has said it has not misrepresented the risks of beryllium.

Brush Wellman is America's leading beryllium producer with headquarters in Cleveland and facilities in several states, including its main processing plant near Elmore. At least 75 current or former workers have contracted beryllium disease at the Elmore plant. Several of those workers have sued.

Last year, The Blade published a six-part series that exposed a 50-year pattern of misconduct by the U.S. government and the beryllium industry - wrongdoing that caused the injuries and deaths of dozens of workers producing the strategic metal.

In addition, the series documented how Brush Wellman misled workers about the hazards of beryllium and withheld from federal regulators evidence that showed that workers could get sick from beryllium even when safety limits were met.

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