UM Grace Case

A series of increasingly testy exchanges was eventually interrupted by a rebuke from Judge Donald Molloy, as defense attorney David Bernick cross-examined government witness Dr. Richard Lemen on Monday.

Bernick began by pointing out that Lemen was receiving $350 an hour for his testimony, $50 less than his usual rate.  Bernick characterized this as a “government discount.”

After reviewing Lemen’s experience testifying as an expert witness in asbestos lawsuits, Bernick questioned Lemen about when he had last read a pair of epidemiological studies examining various aspects of the public health crisis in Libby.  When Lemen said that it had been several months since he had read them, Bernick responded with incredulity bordering on shock.

“You’ve got two studies to read, but you were too busy,” Bernick said.

“I’ve got a case in my office this long,” Lemen said, gesturing with his arms spread out as he referred to the massive quantity of documents related to the trial.  “I was not proffered just to talk about two studies.”

Bernick began to ask Lemen another question when Lemen interjected.  “I’m ready to talk about those studies any time you want to,” Lemen said.

Bernick responded by asking Lemen about the cutoff date of one of the studies.  “I cannot remember everything,” Lemen said. “Show me the studies and I’ll look at that and we can show it to the jury.  I’m not going to play a memory game with you.”

Eventually, Bernick asked Lemen about a third study by the Agency for Toxic Substances and Disease Registry examining mortality rates in Libby.  Bernick asked Lemen if he had read this study over the weekend.

“Yes,” Lemen said.

“Oh good, so that one is fresh in your mind,” Bernick said.

“Sir, I am not as good as you apparently because I don’t remember everything without having it in front of me,” Lemen replied.

“I apologize.  I was being a little flip on that and I apologize,” Bernick said.

Going over some of the details of the study, Lemen repeatedly responded to Bernick’s questions by demanding to see the study and have it displayed to the jury, a concession Bernick apparently did not want to make.

In a later question, Bernick stated that Lemen had “used” one of the studies in previous testimony, and then asked him if that was true or false.  Lemen replied saying, “I don’t know what you mean by used and I don’t want to play a word game with you.”

Examining a part of one of the studies that used data from higher exposure levels to extrapolate mortality risk at lower exposure levels, Lemen took issue with Bernick’s line of questioning again.

“Yes, if you can get the data it’s best, but waiting until the data comes in is like waiting to count dead people,” Lemen said.

The statement was stricken from the record as unresponsive.  After this, the exchanges became increasingly tense as Bernick and Lemen repeatedly interrupted each other.  Lemen accused Bernick of misrepresenting the facts, mixing apples and oranges, and cutting him off.  Finally, the judge stepped in.

“Stop,” Molloy said, interrupting both Lemen and Bernick at the same time.  “I’ve heard just about enough argument… you’re here to be a witness… I don’t want to have to intervene with every single question.  If you want to be a lawyer, go to law school.”

Bernick, now satisfied, asked only a few more questions, to which Lemen gave short answers.

On redirect, prosecutor Kevin Cassidy asked Lemen about details of a few of the studies that Bernick had mentioned, and asked Lemen to talk about a pair of recent studies from France and Germany examining mesothelioma rates in relation to asbestos exposure.  In the end, Lemen testified that there is no safe exposure to asbestos.

“We can’t identify a dose below which some people won’t be at risk of developing mesothelioma,” Lemen said.

Then, with the jury out of the room, the judge and the lawyers hashed out some of the issues that remain from previous testimony.  Molloy has not made a decision about whether to allow government witness and former Grace executive Robert Locke to return to the stand, whether Locke’s testimony will be stricken from the record, or whether some or all of the charges will be thrown out.

Molloy indicated that the testimony of Dr. Aubrey Miller will stand, but some of Dr. Sheldon Whitehouse’s testimony will be struck – specifically projections related to his “common sense” as opposed to his scientific testimony.

Bernick informed Molloy that he would be filing a motion to strike all of Lemen’s testimony where he was not talking about epidemiology.

After that, Molloy brought the jury back into the room to let them know that they might not be needed in court tomorrow, but they should call in around 11:00 am to find out for sure.  After tomorrow, court is scheduled to be in recess until next Monday, while Molloy leaves town to see his son’s graduation from flight school.

“I’ll see you when I get back, and when I get back we’ll have at least one more naval aviator,” Molloy said.

Court is in recess until 9:00 a.m. Tuesday morning.

–Daniel Doherty (posted at 7:40pm)