UM Grace Case

Following the afternoon recess, Bernick resumed his cross of Lockey, attempting to undermine his testimony on direct. He began the cross by attempting to show that the correlation between dosages and diseases may not be as significant as Lockey, or the prosecution, would have the jury and/or public believe. The entire cross-examination consisted largely of complicated lines of questioning that criticized the scientific veracity of Lockey’s exhaustive studies.

Bernick first began his cross-examination after the afternoon break by sketching out the Lockey’s study by methodically describing the studies of cumulative fiber exposure. He first criticized the obvious differences in the studies, noting that in the first study, less than 1 fiber year of concentration would have been no different than the community in general, but in the second study, exposures of less than 1 fiber year were included. In this same vein, Bernick asked several questions of Lockey in an attempt to show that several participants in the study apparently had pleural disease at a level no greater than the exposure of community members–although, according to the the defense, these were not statistically significant, a fact that, if true, would undermine the community exposure argument.

Bernick, through Lockey, criticized several other “wrinkles” in the study. One of these “wrinkles” was that, when all the variables were considered, only the highest quartile of exposures showed what Bernick termed a “scientifically significant” deviation from the baseline of Lockey’s study. Other limitations of the study involved the participants themselves. These alleged problems were twofold: Lockey’s study did not consider the overtime of Libby mine workers, and many of the workers in both studies dropped out between the first and second study—some because of the precise medical problems the studies were designed to measure (in other words, the second study actually underestimated the sickness of the Libby miners included in the first study). Still other problems resulted from an allegedly disproportionate exposure at the beginning of the study (which Lockey did not validate through his testimony, but the defense alleged in its leading questions), and difficulties in measuring the exact exposure through inadequate measuring instruments during the initial sampling.

Although it may seem counterintuitive to allege that the asbestos exposures in Lockey’s study were “front-loaded” during Grace’s ownership of its Libby property, the defense may be trying to establish that the lion’s share of the exposure of Grace employees occurred prior to the enactment of the criminal provisions in the Clean Air Act, and Grace continued to improve the safety of its property and products–and allegedly, had some success.

At times during the cross-examination, the exchanges between Bernick and Lockey became testy. In one particularly damaging exchange for Grace, Lockey testified that even the very low exposure rates were statistically significant. According to Lockey, at the very lowest rates of exposure—which even Bernick admitted in his cross were the levels the community was exposed to—showed at least 6 times the national average for pleural plaque development in the Libby participants, as compared with the rest of the United States. This testimony was given against the backdrop of suggestions by the defense that no correlation could be shown until a much higher level of exposure that Lockey considered the “mean” exposure rate of plaque development in study participants.

The defense’s cross-examination concluded with questioning from Frongillo effectively showing that the study could not effectively differentiate between tremolite, winchite, and richterite, the latter two of which are not in a NIOSH definition of asbestos provided by the defense, and also represent up to 95% of libby asbestiform material. Lockey responded to this line of inquiry by noting that any hard fibrous material lodged in the lung could easily cause pleural disease.

During approximately the last 30 minutes of the afternoon, the prosecution began and ended its redirect of Lockey. Despite the prosecution being overruled on the vast majority of their objections during cross, the objections of the defense were sustained on redirect nearly every time they were made, for various reasons, including: leading; form of the question; relevance; and testimony outside the scope of the witness’ expertise. Despite the extreme constraints placed on the prosecution, they were able to ask enough questions to conclude their redirect by the end of the day.

The trial will resume tomorrow with a full day of prosecution witnesses, as the prosecution nears the conclusion of its case in chief.

Michael Doggett, Posted at 12:15 A.M.