UM Grace Case

 The government called Lerah Parker to the stand with Kris McLean conducting the direct examination. McLean started by asking about the Parkers’ nursery business and how they came to buy the screening plant from Grace for their nursery. He asked Lerah to explain how the Parkers used the different parts of the property in their business. Lerah showed the greenhouses, herb beds and long shed on an aerial photo (exhibit 785 previously admitted) and reported that the long shed was used to store nursery equipment as well as over 100 RVs and vehicles as a side business.

McLean tried to introduce a number of photographs into evidence, largely unsuccessfully. The defense objections were based primarily on Federal Rules of Evidence 401 and 403 as well as the fact that the photos were outside the time period of the litigation. After five failed attempts to admit photos of the Parker grandchildren, McLean moved on to the dust problems the Parkers experienced from Rainy Creek Road. Lerah testified that the long shed was always dusty from the wind blowing dust around or from logging trucks coming down Rainy Creek Road and that she would clean it out with big push brooms while a wearing white cotton mask. One photo of road dust taken by Lerah in 1997 or 1998 was not admitted (proposed exhibit 734), but a second one taken on April 25, 2000, was. Exhibit 735. Lerah reported taking this photo to try to get the county commissioners to do some kind of dust abatement.

McLean then began asking Lerah when and how the Parkers learned that their property had hazardous materials. One exhibit, a letter from Alan Stringer dated March 2, 2000 (admitted as exhibit 629B) gave the Judge pause. The defense objected to it as irrelevant and on 403 grounds. Judge Molloy paused for quite some time, mulling it over before finally overruling the objection and admitting the letter, which said in highlighted part:

“I knew that there was a health problem associated with exposure to asbestos for both employees and their families when the mine and mill were operating.”

The defense unsuccessfully objected to another letter from W.R. Grace to the Montana Department of Mines dated November 22, 1992, and signed by Alan Stringer. The objections were based on foundation, incompleteness and hearsay. Nonetheless, the letter was admitted in its entirety, and said in pertinent part:

“Average exposure at Highway 37 was the highest of all the sampling points . . . .”

This letter led Lerah to ask Stringer over coffee if he knew of the dangers when he sold the property to the Parkers. For more on this, see Laura L. Lundquist’s post of 4:00 pm.

After cross examination by Jack Wolter’s attorney and a very short redirect by McLean, Lerah Parker was dismissed from her subpoena by the Judge. McLean next called Dr. Alan Whitehouse to the stand and began laying his foundation as an expert witness before the lunch recess was called.

Photo evidence successfully admitted:
Exhibit 801: taken by Lerah of the tunnels under the property used by the Parkers to grow mushrooms. The photo showed numerous 4 gallon buckets of vermiculite filled by the Parkers, according to Lerah’s testimony. Additional vermiculite was shown lying on the ground all around the tunnel entrance. The photo was objected to on the grounds of FRE 401 and 403 as well as “prior ruling,” but Judge Molloy overruled and admitted the exhibit.

Exhibit 738: a collage of 4 photos taken by Lerah sometime after 2000 to show the EPA what was left on the property. The photo showed piles of raw vermiculite reported by Lerah to be 30 feet by 8 feet and 9 feet tall.  McLean asked Lerah to point out where the vermiculite was in each photo.

Exhibit 735 shows a cloud of dust above Rainy Creek Road just after a red truck drove up the road. This was taken by Lerah in 2000 to convince the commissioners to do dust abatement.

Photo evidence not admitted:
Pictures of the Parkers’ grandchildren sitting or playing on the ground of their property with vermiculite lying or scattered around, and photos of dust coming off Rainy Creek Road toward the Parkers’ property. Lerah said the photos were taken between 1994 and 1998. The defense objected to each of them on grounds of FRE 401 and 403 and because they were taken outside the time period being covered by this trial.

By the third photo, defense attorney Carolyn Kubota objected to Lerah describing the contents of the photos (my granddaughter playing on the ground surrounded by vermiculite rocks) before they were properly admitted. This objection was sustained and McLean proceeded more carefully in trying to authenticate the photos for admittance as evidence.

The problem here is that through the verbal description of what was in the photos and Lerah’s obvious emotional reaction to them, the jury was getting a mental image of a piece of evidence that was not going to be admitted into evidence for reasons of relevance, unfair prejudice or for being outside the time frame of the litigation. McLean was getting half if not all of what he hoped to show the jury, even with sustained objections.

 –Janet Harrison (5:00 pm)