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Beryllium testimony thrown out

Expert witness violated gag order, judge says

By Ann Imse, News Staff Writer

A Jefferson County judge threw out the testimony of an expert witness for the Rocky Flats beryllium victims Monday, after being told the witness violated his gag order with an inflammatory Web site and threatened to deliberately cause a mistrial.

District Judge Frank Plaut also threatened to punish the plaintiffs for hiring David Egilman by removing their lead lawyers.

But Plaut denied the defense motion for a mistrial in the case, in which 55 people are suing beryllium producer Brush Wellman Inc. of Cleveland. They claim Brush Wellman conspired with the federal government to conceal the dangers of beryllium for 50 years, because it was needed to make nuclear weapons at Rocky Flats.

It is the first of 76 lawsuits filed by 200 beryllium victims against Brush Wellman around the country, and the jury's verdict was expected to influence both sides in deciding whether to settle the other cases.

The judge read some of the offensive lines in court -- accusations of criminal activity against Jones Day, the defense law firm, and references to a longtime Brush Wellman medical director being educated in Nazi Germany.

Egilman, a Brown University occupational health historian who said he testifies about "who knew what when," said after the judge's ruling that he never threatened a mistrial. He also denied violating the gag order, saying he took the Web site down by making it password-protected.

Egilman also said that defense attorneys from Jones Day hacked into the Web site illegally, and that he was trying to catch them.

That left plaintiffs' attorney Alicia Butler hard-pressed to explain to the court why, just after Jones Day complained about the Web site last week, she sent Egilman an e-mail saying, "They bit. A copy of your new page showed up in court just now."

Plaut ignored the question of how defense attorneys accessed the site.

The jury heard nothing of this, and was told only to disregard Egilman's testimony. But the judge read into the record his opinion that Egilman's comments about the case on his Web site were "scurrilous and inflammatory," casting "great doubt on his legitimacy and integrity as a witness."

Beryllium is now used in a variety of products, despite growing evidence that breathing the tiniest amount can bring on an incurable, wasting lung ailment in a small percentage of workers.

June 19, 2001

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