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Published: Thursday, 1/17/2013

DEADLY ALLIANCE: WEAPONS OVER WORKERS

Brush lawyers accused of knowing about fraud

Legal giant Jones Day calls allegation 'nonsense'

BY SAM ROE
BLADE SENIOR WRITER
Attorney James Heckbert, at home on his ranch near Steamboat Springs, Colo., represents about 50 beryllium victims. He has accused Brush of using its attorneys to conceal the true dangers of beryllium. Attorney James Heckbert, at home on his ranch near Steamboat Springs, Colo., represents about 50 beryllium victims. He has accused Brush of using its attorneys to conceal the true dangers of beryllium.
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For more than a half-century, Brush Wellman has battled its health problems with the help of one of the largest and most prestigious law firms in the nation: Jones, Day, Reavis & Pogue.

Jones Day has helped the beryllium company fight worker lawsuits and fend off U.S. safety regulators.

Now, Jones Day attorneys are at the center of a serious allegation: A Colorado lawyer has accused Brush Wellman of using the attorneys to conceal the true dangers of beryllium.

In a court motion filed in October, James Heckbert, an attorney for about 50 beryllium disease victims in Colorado and Arizona, 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."

DEADLY ALLIANCE: How government and industry chose weapons over workers

Mr. Heckbert alleges that Brush Wellman, through its attorneys, hid from the public and federal regulators evidence that the federal safety limit for beryllium dust was not protecting workers.

Among the attorneys allegedly involved: Brush's in-house lawyer John Pallam and three outside attorneys from Jones Day, including Patrick McCartan.

Mr. McCartan is Jones Day's managing partner, the equivalent of a chief executive officer.

He declined to be interviewed, saying he does not comment on client matters. "I will say that any allegations of fraud are nonsense."

Mr. Pallam, Brush's in-house lawyer, declined several requests for interviews.

In court records, Brush Wellman calls Mr. Heckbert's allegation a "preposterous theory" with no basis.

Brush produces beryllium, a rare metal that can cause a lung disease when its dust is inhaled. The company is based in Cleveland, as is Jones Day. Since the 1940s, Brush has sought advice from the legal firm.

In the legal world, Jones Day is a giant: It has 1,100 attorneys in 10 American and 10 overseas offices, including London, Hong Kong, and New Delhi.

It has represented many high-profile clients, including R.J. Reynolds Tobacco Co. and financier Charles Keating, Jr.

The recent accusation against Jones Day was filed in a worker's lawsuit in U.S. District Court in Arizona.

A former electrician is suing Brush Wellman, claiming he contracted beryllium disease at the company's Tucson plant. His attorney, Mr. Heckbert, claims Brush has been withholding records in the case; Brush says the records are exempt from disclosure because of attorney-client privilege.

In October, 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 knew for years, but did not disclose, that workers would develop beryllium disease at exposures under the safety limit.

In 1974, Brush learned that a Japanese beryllium firm was reporting disease at levels under the limit; in 1977, a Brush customer, Autonetics, reported such a case to Brush.

Brush sent information about the customer case to Mr. McCartan, the Jones Day attorney. A few weeks later, in August, 1977, he represented the beryllium company at hearings before the U.S. Occupational Safety and Health Administration.

At the hearings, two Brush officials submitted statements saying the safety limit prevented disease.

After the hearings, Brush submitted a final statement: "It is surely true that were there cases of the disease attributable to exposures below [the limit], they would long since have been recognized."

This statement was submitted by a Brush official and two Jones Day attorneys, including Mr. McCartan.

Mr. Heckbert's motion goes beyond allegations against Jones Day attorneys.

In 1991, the motion states, Brush instructed its in-house lawyer, Mr. Pallam, to draft a response to workers who might ask whether the safety limit protected them. Mr. Pallam did so, asserting the limit was protective.

Brush disputes Mr. Heckbert's allegations.

In court records, the company says it did not conceal evidence from regulators nor misrepresent the risks of beryllium to others.

The company says that at the time it made certain statements, "the weight of scientific and medical opinion" was that the safety limit was protective.

Brush has asked the Arizona court to reject Mr. Heckbert's request for attorney-client records.

The court has yet to make a ruling.



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