Week 10: Two defendants walk, defense promises short case as they take the field
During the past week, Judge Donald Molloy dismissed two defendants, ruled on two critical motions and revealed a deadline for his ruling on another.
The prosecution said that they didn’t have enough evidence to prove their case against Robert Walsh on April 27 and defendant William McCaig on April 30. Three defendants remain to face the charge of conspiracy: Robert Bettacchi, Jack Wolter and Henry Eschenbach.
Molloy ruled on April 28 that there were insufficient grounds to dismiss the trial due to prosecutorial misconduct. The day before, Grace attorney David Bernick, argued that the testimony of a number of the prosecution’s witnesses had included “overwhelming and uniquely pervasive” perjury. But Molloy said in his opinion, “Incompetence is not bad faith. Poor planning is not malice. A systemic flaw is not always flagrant conduct. And the damage, while serious, is not irreparable.”
Molloy ruled that he would not strike of Robert Locke’s testimony, but that the jury could not use it in determining Bettacchi’s guilt. The defense was allowed only limited cross-examination of Locke, without re-direct. Also, all evidence introduced through Locke was allowed to remain as part of the case.
With the Rule 29 motion to acquit hanging over the court for the past 10 days, Molloy finally said on April 30 that he would reserve his ruling until after the jury reaches a verdict. If Molloy decides to acquit under Rule 29, the prosecution may appeal the decision to the Ninth Circuit because Molloy waited until after the jury had reached its decision to make his.
The defense team began calling witnesses this week and plans to conclude its presentation by May 6. The next day, the jury will hear closing arguments and possibly enter deliberation by May 8.
Bernick used former Grace executive vice president Elwood “Chip” Wood to counter the conspiracy charges and some of Locke’s testimony, asserting Locke’s memos were inconsistent with Grace policies. Then Bernick got a chance to question Locke and argued that Locke had a “special” relationship with Robert Marsden, an agent for the Environmental Protection Agency, in an effort to discredit Locke.
A quick succession of defense witnesses moved through the courtroom over the next couple days. Many testified about details that would deny the count of conspiracy: former Grace environmental engineer Randy Geiger; Kathryn Coggon, lawyer for Grace who dealt with the EPA’s 104E request; Lawrence Albert Dolezal, former Lincoln Country Commissioner; Eric Moeller, former Grace geologist; and Mike McCaig, son of the now dismissed William McCaig.
The testimony of Dale Cockrell, lawyer for the Kootenai Development Corporation, and Patrick Platenburg of the Montana Department of Environmental Quality went against the knowing endangerment counts regarding the sale of Grace property. Suresh Moolgavkar testified to oppose Dr. Aubrey Miller’s evidence with regard to the second knowing endangerment count. In order to counter one of the obstruction of justice counts, William Cocoran, Grace vice president of public and regulatory affairs, testified that Grace had written the EPA about Zonolite Attic Insulation and the EPA had not disproved Grace’s data.
The defense claimed to have trouble bringing in the rest of their witnesses so court is recessed until Tuesday at 9 a.m.
– Laura Lundquist and Will Grant (Posted 4 p.m.)
Posted: May 1st, 2009 under News.
Tags: Eschenbach, Geiger, Grant, Jury, Locke, Lundquist, McCaig, Rule 29, Week 10, Wolter, Wood
Comments
Comment from Terry Trent
Time May 2, 2009 at 8:15 pm
Does anyone else think it is a mistake for the defense to tell Libby there is no increased risk of disease? They were doing so well by explainng all teh steps they took to decrease exposures (after all that is all that is required of EPA. How coudl teh governetmn be angry about somebody following their own standards?).
They get many more “experts” telling Libby that they don;t see what they actually see every day, and they could truly end up convicting their clients.
Anyway, my feeling was the Grace would do best simply to fess up to the excess disease rate but stay with what works. And I loved hearing, “we didn’t know about teh excess toxicity”..beaseu that was teh truth.
TTrent
Comment from Terry Trent
Time May 2, 2009 at 8:20 pm
Please excuse the previous spelling. I hit the wrong button…big time!
Does anyone else think it is a mistake for the defense to tell Libby there is no increased risk of disease? They were doing so well by explaining all the steps they took to decrease exposures (after all that is all that is required of EPA. How could the government be angry about somebody following their own standards?).
They get many more “experts” telling Libby that they don’t see what they actually see every day, and they could truly end up convicting their clients.
Anyway, my feeling was that Grace would do best simply to fess up to the excess disease rate but stay with what works. And I loved hearing, “we didn’t know about the excess toxicity”…..because that was the truth.
TTrent
Comment from John Derry
Time May 3, 2009 at 1:17 am
I was wondering if you were going dyslexic on us.
And yep more testimony like Dr. Moolvackars would be another step backward.
Sad part is too many in Libby believe that dribble.
As to Mr. Nelson’s request. I’d agree, although I’ve lost hope for justice and would settle for the truth. Maybe then we could start doing things right.
Anybody that thinks that will happen,,, I’ve still got some ocean front property right here in good “oll Libby. for sale – cheap.
Comment from Jose Jimenes
Time May 4, 2009 at 12:24 am
I am beginning to think that those of us who live in Libby would be better off without the help of you outside experts and political wannabees.
Comment from Terry Trent
Time May 4, 2009 at 8:47 am
Dear Jose,
The problem is that the rest of America would not be better off without Libby! There are 3,000 mesotheliomas per year in America, roughly 2 per year in Libby. Environmentally induced meso will increase as government allows increased populations to reside on (for lack of a better word for description) “friable” surface amphibole deposits. I am not certain that the outside experts you refer to are trying to help Libby all that much (although I know they have wanted to in the past, me included). They want Libby to help America and to help medical science in a dignified rather than experimental lab rat sort of way. The ways to do that (help America). Demand Public Health Emergency. Demand Health Care for the victims. Demand that EPA recognize the existing science on mineral fiber toxicity. Demand compensation for pain and suffering. IN short demand our Public Health agencies get their act together. Those things would help America immensely on this topic. And I think Baucus and Boxer are thinking the same way.
Best regards,
Terry
Comment from John Derry
Time May 4, 2009 at 8:24 pm
Those demands would help getting things on the right track, for sure. But with the two party system in place, not much chance do I see of that happening. (broken getting more broke)
And Jose’s right — we here in Libby would just as soon let the world pass us by. We want to listen to 70’s songs on the local radio stations ( well maybe a couple from the 80’s) and be left alone.
And what’s going on ( up above)? Joan wants to sell weight loss? and a couple of strange guys??
Comment from John Derry
Time May 4, 2009 at 11:13 pm
Mr. Trent you are right when you say to “dazzle the locals with BS. and they’ll be a meek as cattle going to slaughter”.
Last week the Montanian ran ( on the front page) an article about the peer suit for the “Rumple Report”. What percentage bothered to read this do ya suppose? and what percentage could connect the dots?
They are good folks, most don’t have a mean bone in their body, but that it how it is.
Comment from Cathy
Time May 5, 2009 at 6:28 am
Terry, could you document the two cases of meso in Libby every year? I have been interested that the numbers for deaths and disease have not changed since the initial inquiry here almost 8 years ago? Is there a location for follow up medical numbers – other than Whitehouse?
Comment from Terry Trent
Time May 5, 2009 at 8:24 am
Cathy – No I can’t document it. ATSDR was supposed to do that, but failed to mention any of the mesos in the reports I read. The places to check for documentation or references to documentation, are Brad Black, Whitehouse (of course), Gayla Benefield, Clinton Maynard (can refer you) and Bruce Case. ATSDR should have teh data, but getting it may be difficult, I don’t know why. I will be happy to send you any e-mail addresses ff you send me an e-mail at ttrent1@juno.com.
Mesos, as I am certain you know, are hard to pin down for Libby, since ATSDR dodged the subject. Corbett McDonald started the count with occupatonal, Brad Black added to this with environmental. Bruce Case addressed the occupational mesos since McDonald’s time. I am of the opinion that they haven’t even really started yet since latency is probably 56 years mean or average. Is it really 2 per year? I am not certain, but that seems about right for the time being.
Best,
TTrent
Comment from Bruce Case
Time May 5, 2009 at 9:40 am
Cathy, currently the number of “documented cases” in Libby is one fatal case per year, according to NIOSH.
In June of last year NIOSH published up-to-date data from the National Center for Health Statistics multiple cause-of-death data for deaths 2000 to 2004.
This is online at
http://www2.cdc.gov/drds/WorldReportData/SubsectionDetails.asp?ArchiveID=1&SubsectionTitleID=20
(CLICK ON the table 7-10 at the bottom to see the data).
From 2000–2004 (five years) there were five total fatal cases in Lincoln County, three male and two female. This compares to, for example, 75 fatal cases in Jefferson Parish Louisiana in the same time period (Jefferson Parish is a county south of New Orleans which had an asbestos manufacturing plant which distributed asbestos wastes – of which about half was crocidolite (amphibole) – all over six neighborhoods; it also had and has shipyards).
On the other hand the population of Lincoln county is very small, so the five cases “translated” into 56.1 cases per one million population over age 15 (comparison figures were population estimates from U.S. Census Bureau). This, at a total of one death per year, makes it still third highest in the nation in RATE.
Also, we should note that this relates only to deaths in any given year, not to new cases diagnosed in any given year, which, while usually roughly parallel, are not the same.
In 2006 I presented 29 cases from Libby at the International Mesothelioma Interest Group in Chicago (published in the Journal Lung Cancer) which were the total I could locate to that point through a variety of records and sources; mainly published but some unpublished but verified with medical data although not verified pathologically by me personally. These included still-living cases at the time this was written.
These were substantially similar to those published later by Dr. Whitehouse in Am J Indust Med. Indeed, some of the medical data was provided by a lawyer who was working closely with Dr. Whitehouse, but I had independent information from the open literature on about 23 cases.
Most mesothelioma cases – dead or alive – were of course past WR Grace workers, but some were certainly neighborhood cases. I did not have full exposure histories so cannot be sure how many were “only” environmental. Exposure to amphibole asbestos for mesothelioma causation is heterogeneous as Mr. Trent has noted, and there are likely to be exposure “hot spots” in Lincoln county still just as there are in Jefferson Parish.
I hope this helps.
Comment from givens
Time May 5, 2009 at 1:37 pm
Thanks for the documentation, very interesting.
Comment from givens
Time May 5, 2009 at 3:23 pm
What is the theory about why Bonner County Idaho has a number of cases than Lincoln County Montana? I believe the communities are similar in size and essentially in occupations, aren’t they?
Comment from Bruce Case
Time May 5, 2009 at 9:54 pm
To try to answer givens last question:
I can only guess, I’m afraid. When you have such small numbers (both in numbers of cases and in total population – Bonner county has only about 36,000 people) some of it could be chance; after all, about 20% of mesotheliomas are not due to asbestos exposure (far higher in women).
Still, I’d say with these numbers that chance or lack of exposure are unlikely here (here being Bonner County). 8 of the 9 fatal cases reported over the five years (2000 to 2004) were in men, unlike Libby and Jefferson Parish LA (35 to 40% women) where there are almost certainly more “environmental” and “household exposure” cases.
This suggests – but doesn’t prove – that the cases in Bonner county may be due to occupational exposure, as causative exposures on average occurred many decades ago, and it was mainly men who were the working population at that time.
But – where did the exposure come from? If anybody knows anything about this part of Idaho, speak up! I do not.
I do notice on the county website however that “The population has been growing steadily and has averaged 7 to 8 percent growth per year in the past five years. Many of the people who relocate here are seeking a better quality of life and easier access to the recreational opportunities our area offers”. That could mean retirees moving in, and if they were moving in from say, the shipyard areas in Washington State, and had been exposed there earlier in their working lives, that would be an explanation. But it is clearly speculation on my part.
Comment from Mike Crill Missoula,Mt
Time May 6, 2009 at 12:13 am
Mr.Case, may I direct you and ALL of you to, Meso in Montana. A study done from 1979 to 2002 documenting Meso deaths along rail road routes ALL OUT OF LIBBY MT. This study shows just Montana but I am sure a map to the USA, where 80% of this deadly tremolite asbestos was shipped to…ALL out of Libby. This will explain alot. Course as you know also Mr Case, this is but a fraction of the truth of the sick and dying people who didn’t make the Meso study but live like 90% of Libby folks with Plural which ends in Meso…as you know also. Lets bring the railroad in this Mr Case. After all, WR Grace produced it and RR shipped it….for WR Grace.Let me know what you think Mr.Case.Thank you. ps.Have you ever looked at this as a Holocaust sorta??? I do.
Comment from Terry Trent
Time May 6, 2009 at 8:38 am
If I may interject? Human populations develope along 1. Coast lines 2. Rivers 3. Railroad lines.
Human mesothelioma occurs along 1. Coast lines 2. Rivers 3. Railroad lines.
The devil is in the details.
TT
Comment from givens
Time May 6, 2009 at 2:13 pm
Yes, the devil is in the details because there are many who live and lived in Libby who are very healthy and doing well but who also had significant exposure.
Comment from Mike Crill Missoula,Mt
Time May 6, 2009 at 6:18 pm
Oh but Mr. Givens, if you believe the experts and scientists and not me then repeat after me. Everyone in Libby Mt will die from asbestosis if they do not die from something else first. Makes alot of sence since 1999, that only 250 people are dead and 1800 diagnosed/dying. All those dead inbetween are natural causes/heart attacks,etc etc…ALL caused by Asbestos/Tremolite/Libby…Keep downplaying the truth. It will catch up to you sooner or later. No one in Libby dies of natural anything…since 1963. Wake up sheeple wake up…
Comment from Francis
Time June 1, 2009 at 2:19 pm
I think that it might be a mistake for the defense to tell Libby that the risk of disease is not increased?
I think it is going to be really tough to get through the EPA “standards” that were followed.
Comment from The Meaning Of Life
Time May 1, 2009 at 11:07 pm
Lets wait tuesday then.