UM Grace Case

The defense continued its cross examination of Dr. Miller this morning, leading him through a series of questions and answers designed to show one thing: there was no conspiracy by W.R. Grace and its executives.

Court commenced with the defense questioning Dr. Miller about the government’s demonstrative exhibits Nos. 811 and 818, both of which the EPA and  Miller prepared for use in this trial. Exhibit 811 shows the airborne asbestos levels during sweeping activities at the screen plant. Dr. Miller and members of the EPA team decided for this exhibit to eliminate the EPA’s reference to the sample being “indoor air.” Exhibit 818 shows a chart of the samples which used residential benchmarks to determine exposure.

Defense counsel Frongillo repeatedly asked Dr. Miller about previous drafts of both demonstrative exhibits. Dr. Miller said he did have prior versions saved electronically, and Frongillo requested the prior electronic drafts be turned over to the defense before the cross examination of Dr. Miller is finished. Judge Molloy agreed and will require the government turn the drafts over.

Frongillo next questioned Dr. Miller about his involvement in Andrew Schneider’s book, An Air that Kills. Defense counsel used quotes from the book to show the government knew about the friability of the asbestos in Libby and knew of the adverse health effects. Frongillo quoted a passage of the book in which Dr. Weis and Dr. Miller were in Spokane reading four government reports about the asbestos in Libby. The four reports were published by various agencies or contractors of the government in 1980, 1982, 1985, and 1991.

Frongillo carefully steered the testimony to the four reports. The first report was government exhibit 220, named Priority Review Level 1 Report from 1980. In the report, OSHA was investigating workers’ exposure to asbestos-containing vermiculite at O. M. Scott & Sons Co. Frongillo used the report to show that the government knew the vermiculite was friable and knew the friability had adverse health effects. Frongillo concluded his questioning on the first report by showing the defense demonstrative timeline. The date the government knew about the problems in Libby was moved to before 1980.

Frongillo next questioned Dr. Miller about a report prepared by the Midwest Research Institute in 1982. The report was introduced as Defense Exhibit 5523 and was admitted without objection. MRI was a consultant group hired by the government and the government wanted an in-depth analysis of the fibers present for asbestos-containing vermiculite. Frongillo inserted this date into the defense timeline also.

The final report before morning recess was proposed government exhibit 441A, which Frongillo introduced before the government could. The government had no objection to its own exhibit. This report was prepared by Versar, Inc., another government contractor. The report was dated in February 1985, and Frongillo linked the first two reports to the information in this report. This report was an exposure assessment, and Frongillo used the report to show the government was investigating exposure pathways.

Dr. Miller testified he read the reports sometime in early 2000, and Frongillo proceeded to attack the conspiracy charge. Frongillo argued the reports show the government was investigating asbestos-containing vermiculite as early as 1980, and once the government knew of the adverse health effects, the government still did nothing. Frongillo is continuing the defense’s argument that the government should be held accountable for ignoring its own reports and W.R. Grace and its executives should not be held criminally liable.

                                                                                        — Maggie Braun