U.S. and Grace spar over Peronard’s Testimony
After a brief recess, the prosecution resumed its direct examination of Paul Peronard on Wednesday. Through several exhibits provided at trial (some of which were admitted into evidence, and some that weren’t), the U.S. tried to show that Grace knowingly endangered the people who bought former Grace property contaminated with asbestos fibers. Through the testimony of Paul Peronard, the U.S. attempted to show that Grace knew the property it sold was contaminated when they sold it, and that dust releases from the property actually and inevitably occurred, satisfying the Clean Air Act’s ambient air release requirement.
To introduce this theory, the prosecution first laid a foundation for hundreds of thousands of asbestos samples taken at and around Libby. Peronard explained how the tests were taken by people on the ground in Libby, sent to labs across the country, and checked with a combination of intra- and interlab sample confirmation. The results were then compiled and stored on a massive database, and laid over a GPS coordinate map of the contaminated properties. During this part of Peronard’s testimony, objections were generally overruled, although the few times Peronard testified to anything other than his own experience, the objections were sustained. To an outside observer, this line of testimony may have seemed ridiculous—Peronard was allowed to explain how hundreds of thousands of asbestos tests were taken and compiled, but he could not testify to the actual concentration of the asbestos levels, whether high or low, despite the fact that he essentially oversaw the proper handling of the samples.
Despite this limitation, most of the defense’s objections were overruled. This balance of power shifted noticeably after the prosecution started tying the asbestos samples found on the contaminated property Grace conveyed to the various counts in the indictment, including the Clean Air Act, knowing endangerment, and obstruction charges.
The defense continually stonewalled prosecution questioning on three fronts. In the first instance, the defense strenuously objected anytime Peronard came close to giving an expert opinion outside what the Court qualified as his area of expertise. In essence, Peronard was not allowed to testify about why he made certain decisions because his thought processes about the cleanup process implied he was giving an opinion about endangerment. The Court’s earlier decision precluded Peronard from testifying as an endangerment expert. In fact, the defense began objecting so much during this line of questioning that Molloy had to remind them to cite the grounds for their objections, like “calls for expert testimony,” “calls for standards,” etc., rather than launch into a narrative description of why the objection was being made (commonly called a “talking objection”).
Second, the defense objected anytime the prosecution suggested that asbestos tests of soil or particles on the ground could or would be released into the air. These objections were a clear and concerted effort to protect their clients from the Clean Air Act counts. Although asbestos fragments in the air might be a conclusion that the jury could draw after hearing testimony, to Grace it was not a proper suggestion to be made by the prosecution or its witnesses. Grace, particularly Frongillo, objected to any suggestion that soil contamination necessarily equated to ambient air releases, and conveyed his concerns to the Court after the jury was discharged.
Third, the defense had a consistent category of objections arguably of Judge Molloy’s own creation, i.e., based on his prior ruling that only outdoor air releases, not indoor air releases, are releases into the “ambient air” under the Clean Air Act. In particular, the defense and prosecution sparred over whether asbestos testing in certain, essentially “open-air” buildings, such as a garage, could even be admitted. Whenever testimony regarding testing on an open-air building came from Peronard, both David Bernick and Thomas Frongillo objected with the standard objections of improper expert testimony and soil contamination equated to air contamination, and added a third objection that, pursuant to the Court’s rulings, asbestos within the open-air buildings could not be considered an ambient air release.
This pincer attack combination of objections was so successful and jarring to prosecution testimony that at one point, Peronard turned to Judge Molloy and said, “I don’t understand what’s going on here. I don’t really know if I should answer.” In response, Molloy admitted the exhibit in question, but only for the limited purpose of corroborating Peronard’s own experiences, not for explaining the reasons he took steps to evacuate Libby residents from their properties, or for making any inferences about the level of asbestos contamination, if any, in Libby.
At about 4:30 p.m., Judge Molloy excused the jurors, and had a brief conference with the attorneys. Despite their relative success in prohibiting a wide range of prosecution testimony, the defense nevertheless objected to the prosecution’s presentation of Peronard as an expert witness and argued that, despite the limiting instructions and sustained objections, the jury was prejudiced when improper testimony was offered. The judge generally agreed, and noted that the prosecution has plenty of time to digest the contents of his earlier ruling, and ask the proper questions of Peronard if they should decide to call him to the stand in the future.
-Michael Doggett
Posted: February 25th, 2009 under Law.
Tags: Peronard
Comments
Comment from David F. Latham, editor, The Montanian, Libby, Montana
Time February 26, 2009 at 6:27 am
Has the defense made an issue of the fact that the EPA has not yet concluded a toxicity assessment of Libby amphibole, and therefor does not know what concentrations are “safe”?
Comment from bruce
Time February 26, 2009 at 7:28 am
there is no safe level, 1 small sliver can cause (a.r.d) or cancer
Comment from Jean
Time February 26, 2009 at 8:28 am
How can you say there is no safe level? Based on what? Not everyone who has exposure has cancer.
Comment from David F. Latham, editor, The Montanian, Libby, Montana
Time February 26, 2009 at 8:56 am
It’s empirical at best to say “one small sliver can cause A.R.D.” The EPA acknowledges that it does not know the toxicity of Libby amphibole. How will the prosecution prove its case if it can’t determine how much is “unsafe”?
Comment from Mike Crill Missoula,Mt
Time February 26, 2009 at 9:24 am
What about Dr.Irving Selikoff statement:ONE asbestos fiber inhaled into the lungs,LEADS to cancer.
CHILDREN born and raised(Libby) in a asbestos contaminated environment are MORE AT RISK of developing Mesothelioma.Children MUST be made the priority to protect. I believe I will take Dr.Selikoff expertise over anything any one else says.No cure and NO safe limit to exposure.ONE TREMOLITE FIBER.
Comment from md173643
Time February 26, 2009 at 9:46 am
That all leads to another interesting question: what kind of danger is Paul Peronard in? Is it likely that he will contract mesothelioma?
Comment from Mike Crill Missoula,Mt
Time February 26, 2009 at 9:49 am
Everyone who breathes in Libby IS a canidate of Meso.EVERYONE.Stay away from Libby.
Comment from Terry Trent
Time February 26, 2009 at 9:53 am
Dose is the key with every toxin on earth. Yes there are occurrences with every type of toxin where a minor dose can lead to problems. How dose interacts with a persons susceptibility to a specific toxin complicates dose, as with all toxins. Complications with asbestos in general and Tremolite in specific are extremely difficult to determine because we can’t slice people open willy nilly to see what dose they have sustained. Ambient air measurements never ever give a real picture of what a person is expose to. Complicating dose is the latency period for disease to occur which is different for each asbestos disease. All of that said, mineral fiber toxins are not so different than any other toxin on earth, and we figure them out plenty well enough to know what endangers people in general. In fact we have done the very same thing with asbestos even given the huge problems associated with it. That is because we have worked on that problem for over 50 years, with lots and lots of dead people to help us.
Selikoff did not explain himself well enough. Yes, at that point of understanding, which was a long time ago, it appeared that one fiber was where the cancer arose. However, he neglected to say that in each human being who contracted mesothelioma, there were millions and in most cases hundreds of millions of fibers in the lungs. He also neglected to tell everyone, on purpose, that there were orders of magnitude fewer fibers in lungs when the fiber was Tremolite. Dose was obviously much lower for Tremolite to cause disease than it was for Chrysotile.
Just an aside here, since there has never been a single case of human or animal mesothelioma recorded that is related to Richtorite or Winchite fibers, and there have been hundreds of thousands of deaths related to the fibrous Tremolite Actinolite solid state solution, there is the off chance that the only mesothelioma producing element in Libby amphibole is Tremolite. Of course Tremolite is the only of the fibers that is known as “asbestos” so when the prosecution is talking about “asbestos” they are talking about Tremolite, not Libby amphibole, not Richtorite or Winchite, which both remain uncontrolled.
The above should relate to everyone why “real” scientists were required in Libby, but none were ever allowed to come. Although Chris Weis will easily be able to overcome the problems presented with Paul Peronard’s testimony.
Comment from Mike Crill Missoula,Mt
Time February 26, 2009 at 9:55 am
Everyone who breathes in Libby IS a candidate of Meso.EVERYONE.Stay away from Libby.
Comment from Don Wilkins
Time February 26, 2009 at 10:10 am
Peonard being considered an “expert” on the dangers of exposure to the tremolite at Libby really doesn’t matter. There will others within the government’s case that will show the dangers of exposure at Libby.
Comment from md173643
Time February 26, 2009 at 11:06 am
I agree with you, Don. Molloy hinted that the government has several other witnesses at trial. Still, I think Peronard is a good lithmus test of how the questioning will play out.
Comment from Don Wilkins
Time February 26, 2009 at 5:48 pm
Anyone who has worked or been around Peonard knows he can get pretty hyped up when the Grace people were stonewalling him up here. He exploded on Grace a few times during the Community Advisory Committe meetings.
Comment from David F. Latham, editor, The Montanian, Libby, Montana
Time February 26, 2009 at 8:13 pm
Correction: Community Advisory Group meetings.
Yes, I recall that Paul Peronard once blurted disdainfully that Alan Stringer’s answer to a question was “specious.” (Sorry, I can’t remember the question.)
Comment from Mike Crill Missoula,Mt
Time March 24, 2009 at 9:07 pm
Yah and I recall some jerk complaining about the Quality of a DVD made showing a massive exposure and contamination that is now responsible for over 400 yards being cleaned with deadlier soil than what was taken out. Such ignorance at a time of deadly exposure. Who cares now huh David.Print the story David,front page, of the dude who has JUST been diagnosed with asbestosis who has lived in Libby for 5 years front all you people selling Libby as safe. Way I look at it, you all killed that man.And all those 300+ people who have moved to Libby since 1999 being sold Libby as safe.You all remember now that since 1999, I have been telling all who will listen to stay away from Libby as Libby is not safe to anything that breathes. Lawyer Hebling is representing him against Grace.He NEEDS to sue every one of you, even you David as your paper also continues to sell Libby as safe. What do you say now David? I told you so. 10 years David.You could of and should of saved them people.I ask you David, have you too sold your soul to Grace/Libby. Anyway, Paul suckered all of us sheeple when we were wide open for any help after being told the truth.And then the lairs came to town and now the truth is being told. Amen Unbelievable to say the least…Murder…
Comment from David F. Latham, editor, The Montanian, Libby, Montana
Time February 26, 2009 at 6:17 am
What exactly is (are) Peronard’s area(s) of expertise?