The Definition of Danger and Dr. Miller’s Testimony – Analysis
On March 9, with the jury dismissed due to an ill juror, the prosecution and defense began a lively argument over several key issues, with the testimony of Dr. Aubrey Miller being the first. [Defense motion to exclude Miller’s testimony docket #968]
Concerning the testimony of Miller, clad in his U.S. Public Health Service Commissioned Corps uniform (which looks like a Navy uniform), defense attorney Scott McMillin contended Miller used the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) standard for endangerment, which differs from the Clean Air Act’s (CAA) definition of endangerment. As a result, McMillin argued Miller’s testimony would be prejudicial, pursuant to FRE 403, because it uses a different endangerment standard.
Defense attorney David Krakoff continued the argument by averring that Miller’s testimony will create confusion for the jury and thus be prejudicial as a result [referencing FRE 403]. The confusion would result in “letting the cat out of the bag” and therefore “place the defense in an untenable position if Dr. Miller is deemed an expert and can provide testimony as such.” Furthermore, Krakoff contended a limiting instruction pursuant to FRE 105 would not satisfactorily “put the cat back in the bag.”
Molloy had previously ruled Miller was an expert. See docket #744. However, Molloy did not rule on today’s question of whether Miller should be allowed to testify to endangerment or whether a FRE 105 limiting instruction would be appropriate.
The central argument between the prosecution and defense was the standard for “danger” in CERCLA versus the CAA. The defense used this argument for two purposes: (1) to entirely prevent Miller from testifying, and (2) to restrict his testimony to not include any references to endangerment because it would confuse the jury. The full analysis of the different language, including modifiers used in the acts, and their implications of the legal argument can be read here.
–Christopher Orman
Posted: March 9th, 2009 under Law.
Tags: CERCLA, Miller
Comments
Comment from David F. Latham, editor, The Montanian, Libby, Montana
Time March 10, 2009 at 4:29 am
As I recall, Dr. Aubrey Miller is not in the U.S. Navy, but rather the U.S. Public Health Service which is headed by the U.S. Surgeon General. Their uniforms are like the Navy’s but the collar insignia is different. The agency’s website says:
“The U.S. Public Health Service Commissioned Corps is an elite team of more than 6,000 full-time, well-trained, highly qualified public health professionals dedicated to delivering the Nation’s public health promotion and disease prevention programs and advancing public health science. Driven by a passion for public service, these men and women serve on the frontlines in the Nation’s fight against disease and poor health conditions. As one of America’s seven uniformed services, the Commissioned Corps fills essential public health leadership and service roles within the Nation’s Federal Government agencies and programs.”
Comment from Terry Trent
Time March 10, 2009 at 10:03 am
Wow! David Latham. Should Libby stand up and salute? Hum a few bars of old glory? Hmmm, perhaps you missed the Daily Interlake article which accurately describes how every citizen’s health in Libby takes second seat to a paranoid financial construct of doom and gloom. Always has. And the pawns used to carry out the bad news are the very same dedicated officials you speak of? If so take a look. http://www.dailyinterlake.com/articles/2008/09/26/news/news02.txt
Dr. Bruce Case wore that uniform, headed a regional office for them. Is actually dedicated to truth and human health in this matter. Was a part of Dr. McDonald’s contingency for Libby in the 1980s. And surprisingly is an actual “asbestos” expert. If you are opposed to doing the research, which I understand how that could be since it is hard work to uncover a history such as Libby’s as played out in Universities across our country, and around our world, then perhaps you may wish to confer with those who actually lived it, before the people of Libby and WR Grace knew much of anything about it? Or at least wait until Miller’s testimony can be de constructed, which it will be. Then you might whistle a different tune or at least use fewer physical digits while saluting.
TTrent
Comment from David F. Latham, editor, The Montanian, Libby, Montana
Time March 10, 2009 at 10:13 am
See what I mean, Irle?
Comment from Terry Trent
Time March 10, 2009 at 10:28 am
Very clever David. Not what one would expect from a stand up and direct member of a community though. If you have something to say then say it.
TTrent
Comment from I White
Time March 10, 2009 at 11:23 am
Yes, I see what you mean David. A bit rabid I’d say.
Comment from Terry Trent
Time March 10, 2009 at 11:47 am
Well, I suppose “rabid” is indeed accurate. I have had the feeling that it has been much better than newspaper men and others watching the members of their community die preventable deaths, without ever saying a word. Then later saluting the people who did it to them. Better to limit ones speech to correcting other’s poor English rather than actually making a difference. But then, that is just me.
TTrent
Comment from Mike Crill Missoula,Mt
Time March 9, 2009 at 6:57 pm
Amazing how much trouble calling a duck a duck, can be.Like saying Tremolite asbestos does not kill you while thousands suffer and die. How bout the whole truth and nothing but the whole truth.