UM Grace Case

The list of contested witness testimonies that Judge Donald Molloy must consider continues to grow. This morning’s rapid questioning added two more to the two contested last night by the defense.

Molloy began the morning listening to the wrangling of prosecutor Kris McLean and defense attorney David Bernick over the admissibility of various testimonies. Last night, Bernick submitted a motion to bar the testimony of Lerah Castleton, daughter of past witnesses Mel and Lerah Parker. Bernick argued that the testimony would be prejudicial against Grace if it involved the emotion that the court witnessed in the testimony of Lerah Parker. He also said it was cumulative, meaning it supposedly would involve the same evidence that the court already heard from the Parkers. McLean argued that it contributed to the Clean Air Act evidence. Defense attorney Thomas Frongillo strode to the lectern, read parts of Lerah Parker’s testimony and asked how her daughter’s testimony could be any different.

“It is a stick of dynamite in this case, a month after we have already heard it. A month ago, we heard the Parkers, and Lerah Parker cried all the way through her testimony. And now, when the prosecution’s case is heading south, they want to bring someone else in to influence the jury,” Frongillo said.

The defense also protested the testimony of John Kratofil, who helped lay down vermiculite as part of the Libby school running tracks. McLean wanted this testimony because he said that Grace did not disclose the hazards to the school district so it is evidence of obstruction.

Molloy decided to allow Castleton’s testimony as long as there was no histrionics and warned the prosecution that the testimony would be tightly limited to things that hadn’t been heard before or he would throw it all out. As the defense tried to argue more against Kratofil, Molloy said he didn’t like to keep the jury waiting and said everything else would have to wait.

Once the jury was present, the attorneys seemed to try to make up for the delay by plowing through the questioning of four new witnesses.

First to the stand was Bruce R. Zwang, a 49-year-old Libby native who worked for Grace from 1981 until the mine closed in 1990. He worked a few different jobs and eventually ended up as the screening plant supervisor. He was asked questions about the respirator and clothing policies at the screening plant and said he always wore a respirator in the open storage area, otherwise known as the long shed. He said no showers were provided for workers.

He described vermiculite piled 20 feet high in the long shed and said it was still there when the mine shut down. Rejected product was stored for a short time in the area known as “the meadows,” an open area near the long shed. He knew that Libby people, including those not working for Grace, came to gather vermiculite for their personal use. He didn’t think anything of it even though he knew there was asbestos in it because the same thing was being sold to people nationwide. The defense made sure that he said the supervisors never said there was a danger in people gathering vermiculite concentrate, presumably this enables the defense to deny the conspiracy charge.

Next up was Robert Beagle, a former employee who worked for Grace from 1969 to 1992. Like Zwang, he worked a number of jobs including truck driver and crane operator. The prosecution was careful to acknowledge that he has a lawsuit pending against Grace and his testimony was very short.

Beagle was involved in tearing down the Grace property after the mine closed so he was able to testify that there were still vermiculite piles at the screening plant and export plant after the mine shut down. The area wasn’t fenced off and he knew that Libby people went there to get vermiculite.

A different side of the story came from Kelly Watson, a retired train engineer who worked for Burlington Northern Railroad. He worked in Libby between 1981 and 1988, moving cars loaded with unexpanded vermiculite over the five miles between Libby and the export plant. He would push 18 hopper cars at a time twice daily over the distance. The cars had flip lids but he testified that the lids didn’t always close well, and material was always leaking out at the export plant and at the train yard in Libby. He regularly had to clean the dust off of his train engine. Bernick asked if he had a lawsuit against Burlington Northern. Watson said he does not.

The final witness of the early morning session was Barry Dofelmere, another Libby native, who worked in the timber industry. From 1986 until 1992, he worked for a logging company that cleared and thinned the timber on Grace property. On an aerial photograph, he outlined how they logged all around the Grace mine and on both sides of Rainy Creek Road.

He testified that he regularly followed Grace trucks that sanded Rainy Creek Road, the road between the mine and the screening plant, and the road along which the Parkers ended up living. One day, he followed a truck up to the mine because he was meeting some managers there and witnessed the truck backing up to the vermiculite tailings and being loaded with tailings. He said he asked Alan Stringer at the time if he knew vermiculite contained asbestos.

“He said it wasn’t a problem because most of the asbestos comes out in the process,” Dofelmere remembered.

Bernick asked if Dofelmere knew the road was owned by the county and was cut through a vein of vermiculite. This point appeared to be showing that any responsibility for vermiculite fibers from the road belonged to someone other than Grace. After questioning Dofelmere about the locations he logged and the time frame, Bernick stated that Molloy should instruct the jury that they should not consider Dofelmere’s testimony in relation to the Clean Air counts.

As Bernick and McLean started to confront each other directly, Molloy called a halt and released the jury. Then it was back to one-on-one, or more like three-on-twelve, between the prosecution and the defense as Bernick lambasted both Dofelmere’s and Watson’s testimony. Each testimony addressed one of the obstruction counts but both are outside the applicable time frame. McLean said that Dofelmere’s comments went to the conspiracy count because Grace withheld information about using vermiculite tailings to sand Rainy Creek Road. Molloy expressed confusion about Watson’s testimony, and as Bernick launched into another demand to have it stricken, Molloy abruptly recessed the court.

– Laura L. Lundquist (posted 12:53 p.m.)