Second Circuit Orders New Trial in Asbestos Removal Case
Asbestos removal can be a messy business. Federal statutes such as the Clean Air Act, Toxic Substances Control Act, and Occupational Safety and Health Act, as well as numerous state regulations, create a significant guidance regime that must be complied with to remove discovered asbestos. For example, OSHA regulations require employers to provide employees performing asbestos abatement work with respirators and “the use of protective clothing, such as coveralls or similar whole-body clothing, head coverings, gloves, and foot coverings,” and ensure that they enter and exit the contaminated work area through “Decontamination areas.” OSHA also requires employers to “perform monitoring to determine accurately the airborne concentrations of asbestos to which employees may be exposed.”
Last week, the Second Circuit vacated sentences entered by the U.S. District Court for the Northern District of New York against an asbestos air monitoring company, five of its employees, and an employee of an asbestos abatement contractor for fifteen counts of conspiracy, mail fraud, and false statements. The defendants allegedly undertook to violate various state and federal environmental regulations and to certify that proper air monitoring had been conducted when in fact, it had not. The defendants raised a number of alleged instances of error on appeal from the verdict issued after a four-week jury trial.
The Second Circuit concluded that each instance of error in isolation likely would not warrant a new trial, but “considering the record as a whole,” the court found that “[i]mpropriety permeated the proceedings” enough that the cumulative prejudice warranted a new trial. Specifically, the Government made repeated improper comments to bolster the credibility of its witnesses who had signed plea agreements and the court improperly excluded evidence of good faith on the part of the defendants. The court explained, “the complex regulatory background against which the defendants conducted their activities made their professions of good faith relevant, directly or indirectly, to every question of knowledge and intent in dispute in the case.” The district judge had excluded testimony from a defendant’s air monitoring supervisor about a conversation he had with a New York Department of Labor representative in 1994 about compliance techniques and an email exchange between the same employee and the Department of Labor in 1996 requesting guidance on compliance obligations.
