UM Grace Case

Defendants’ Joint Motions in Limine

To read more about a specific motion, click on it below:

Motion in Limine – Exclude Expert Witness Dr. Daniel Teitelbaum

In this motion, the Defendants wanted to prevent the Government from introducing testimony from Dr. Teitelbaum and his medical report. In 1976, Dr. Teitelbaum prepared a medical report, at the request of Grace, that included results of chest x-rays of then-current Grace employees. The report lists multiple diagnoses of Grace employees with asbestos-related conditions.

The Judge decided that Dr. Teitelbaum can testify, but only as a factual witness. The Judge will allow the Government to introduce the report into evidence; however, the Judge will not allow Dr. Teitelbaum to testify as an expert about some of his findings since they were speculation and not based on scientific evidence.

Readers can view:

Defendant motion
Government’s response
Defendant reply
Judge’s order

– Audrey Schultz

Defendants’ Motion in Limine – Expert Witness Dr. Aubrey Miller

In this motion, the Defendants want the Judge to exclude the expert testimony of Government witness Dr. Aubrey Miller regarding the danger posed to Libby residents by alleged releases of asbestos into the ambient air after Nov. 3, 1999.

The Defendants argue that Dr. Miller’s testimony does not satisfy the requirement of Fed. Rule of Evidence 702 as interpreted by the Supreme Court in Daubert. The Supreme Court in Daubert set forth a four-part test to ensure that expert testimony “is not only relevant, but reliable.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The test includes four factors that a trial court may, in the exercise of its discretion, consider to assess reliability: 1) whether a theory or technique can be tested; 2) whether it has been subjected to peer review and publication; 3) the known or potential error rate of the theory or technique; and 4) whether the theory or technique enjoys general acceptance within the relevant scientific community.

Dr. Miller, a public health official with the Agency for Toxic Substance and Disease Registry (ATSDR), served as a member of the team that investigated hazardous waste contamination in Libby beginning in November 1999. Dr. Miller has published studies and intends to testify about one report on Libby contamination at the trial.

The Judge denied this motion. The Judge analyzes Dr. Miller’s credentials, the basis for his testimony and theories, and the general acceptance of his theory by the scientific community, thereby identifying him as a relevant and reliable expert witness. Judge Molloy explained that any weaknesses in Dr. Miller’s methods and conclusions should be developed during cross-examination.

Readers can view:

Defendant Motion
Government Response
Defendant Reply
Judge’s Order

For greater discussion on Daubert Motions, click here.

– Audrey Schultz

Defendants’ Motion in Limine – Defendants’ Overt Acts

In this motion, the Defendants attempted to prevent the Government from referencing the Defendant’s actions prior to November 1990 as “overt acts.” In this case, “overt acts” generally reference those acts in furtherance of a conspiracy. The Defense wants the Government to reference those acts carried out before 1990 as “background information” so the jury does not assume those acts prior to 1990 were part of the conspiracy.

The specific criminal provisions of the Clean Air Act, under which these charges fall, were not enacted until 1990. Therefore, the Defense wants to prove that the Defendants did not know they were committing a crime prior to 1990. If the Government defines acts prior to 1990 as “overt acts,” there is potential for the jury to assume these acts were in furtherance of the alleged conspiracy.

The Judge will rule on this motion in limine at trial.

Readers can view:

Defendants’ motion
Government’s response
Defendants’ reply

For more discussion click here.

– Audrey Schultz

Motion in Limine – Government Exhibits: Offers to pay medical expenses

In this motion, the Defendants want to prevent the Government from introducing two exhibits. Both exhibits are letters from an insurance company hired by Grace to extend coverage to Libby residents with asbestos-related disease.

The first exhibit is an example of a letter sent to a Libby resident informing him that he did not have an asbestos-related condition. The second exhibit is a letter sent to a Libby resident explaining that he had an asbestos-related disease. The Defendants are worried that these letters would possibly show that Grace knew that they were liable for the asbestos-related conditions in Libby.

There is a rule used in Court (Federal Rule of Evidence 409) that prevents the use of offers to pay medical or similar expenses to show liability for the injury or disease. However, it is unclear whether this Rule applies to criminal trials. The judge will have to consider whether this Rule applies in this criminal trial and whether the letters will be allowed as evidence for the jury to consider.

Readers can view:

Defendant motion
Government’s response
Defendant reply
Judge’s order deferred until trial

– Audrey Schultz

Defense Motion in Limine – Imminent Danger Expert Testimony

In this motion, the Defendants wanted to exclude any expert opinions regarding “imminent danger” based upon the risk assessments created by the EPA in its CERCLA investigations at Libby beginning in 1999. The Defendants argue that the risk assessments are irrelevant to the Clean Air Act charges, would confuse the jury, and should thus be excluded from the trial. The Government, on the other hand, contends that the assessments are not only relevant to the Clean Air Act counts, but also to the obstruction and conspiracy counts, and the testimony, therefore, should be allowed.

The EPA—in order to determine whether a government CERCLA cleanup was warranted in Libby—attempted to assess the risk to human health posed by the asbestos contamination. The EPA sampled various locations in and around Libby. The Government wants to use this information to help prove ongoing asbestos contamination in and around Libby.

The Defense argued that the language “imminent danger” used by the EPA in its risk assessments will confuse the jury. Since the charges under the Clean Air Act impose criminal liability upon release of a hazardous substance into the air that is known to pose an “imminent danger of death or serious bodily injury,” there is great potential for the jury to assume the use of “imminent danger” in the EPA’s risk assessments is equivalent to the “imminent danger” in the provision of the Clean Air Act.

The Judge granted the motion in part and denied the motion in part. The Judge will not allow Government witnesses to testify about “imminent danger” as it may or may not apply to the provisions in the Clean Air Act. However, Government witnesses will be able to testify about “imminent danger” as it applies to the obstruction and conspiracy counts. The Judge will specifically instruct the jury to differentiate between the different standards of risk: the “imminent danger” with respect to the EPA and CERCLA cleanup and the “imminent danger” with respect to the Clean Air Act.

Readers can view:

Defense Motion
Government Response
Defense Reply
Judge’s Order

– Audrey Schultz

Defendants’ Motion in Limine – Deposition and Trial Transcripts

In this motion, the Defendants sought to exclude the use of prior civil trial transcripts and depositions. The Government would like to use admit the prior testimony under the hearsay exception for co-conspirator statements. The Defense raised a 6th Amendment argument, asserting that the prior deposition and trial testimony is testimonial in nature and the admission would violate their 6th Amendment right to confront witnesses.

The Judge agreed with the Defendants. He granted the motion saying, “Under the Sixth Amendment and Crawford, the government is prohibited from using at a criminal trial any prior testimonial evidence . . . .” However, the Government will be able to use this testimony to impeach a witness.

Readers can view:

Defendant Motion
Government Response
Defendant Reply

– Audrey Schultz

Defendants’ Motion In Limine – Exclude Dr. Arthur Frank

Defendants ask to exclude the testimony of Dr. Arthur Frank as an expert and fact witness because the Government has not identified the opinions he will give or sufficiently disclosed the basis and reasons for those opinions. Although the Government identified him as a witness, it only stated he would “review the medical records of prosecution witnesses … [and] offer an opinion regarding the diagnoses of those witnesses.” The Court ordered supplemental disclosures at the Defendants’ request, but the Government only repeated the same information. Disclosures of expert witnesses, and a summary their opinions and the basis for their testimony is required by the Rules of Criminal Procedure. Because the Defendants “cannot even guess what that opinion might be, except to assume that the opinion is unlikely to be favorable to the defense” they ask Dr. Frank not be allowed to testify.

The Government responds that it has fully disclosed Dr. Frank’s testimony and complied with the “letter and spirit” of the Rules of Criminal Procedure. Per the Court’s order, the Government disclosed the documents Dr. Frank reviewed and relied on, his prior trial and deposition testimony and the contract for his services. The Government explains that Dr. Frank will testify regarding the diseases caused by exposure to asbestos and the manifestations of such diseases, and the higher rate of the diseases in the area around Libby, and “results of worker exposure to Libby vermiculite at other locations.” Because the Defendants have not objected to “this opinion, Defense counsel appear to concede that it is relevant and Dr. Frank is qualified to render it.” After distinguishing the cases cited by Defendants’ the Government asserts that because Dr. Frank isn’t providing a different medical diagnosis of the witnesses, “but rather an incorporation of such diagnosis in his overall testimony regarding the connection between exposure and certain diseases” no further information is required by the Government. The Government concludes that because Defendants’ have not identified any reasons why Dr. Franks testimony is inadmissible, he should be allowed to testify.

The Defendants’ reply that the Government’s disclosures regarding Dr. Frank were impermissibly vague and its Response to this Motion In Limine is the first time the Government has explained that Dr. Frank will not make new diagnoses, but still does not disclose how he will incorporate the diagnoses he reviewed into his opinions. The Defendants assert that the basis of Dr. Franks testimony may be inadmissible, and at least problematic per Daubert, because he does not evaluate asbestos related disease in accordance with the medical community’s standards. For a more complete discussion of the medical community standards and diagnostic methods employed by Dr. Franks see pages 4-6 of the Reply.

Additionally, Defendants have moved to exclude the testimony of Dr. Alan Whitehouse, the treating physician, and if Dr. Franks is relying on diagnosis of Dr. Whitehouse, his testimony is flawed for the same reasons identified in the Whitehouse motion. Defendants’ charge that although the Government has disclosed that Dr. Franks has an opinion it has not disclosed his opinion or any description of what his opinion might be. The Government’s Response provides the first, and only, details of what Dr. Franks will testify about, but still cannot be considered a fully summary of his expert opinion. Without such details or a summary, and with concerns about the admissibility of Dr. Franks findings considering his methodology and potential reliance on the records of Dr. Whitehouse, the Defendants request his testimony be excluded.

No order is available for this Motion.

Readers can view:

Defendants’ Motion
Government’s Response
Defendants’ Reply

For more discussion on Daubert Motions, click here.

–Kirsten Madsen

Defendants’ Motion in Limine – Indoor Release Evidence

In this motion, the Defendants and Government argue over the definition of “ambient air” in the Clean Air Act. The Defendants argued that “ambient air” clearly excludes any indoor air. The Government argued that indoor air should be included in the definition.

Since “ambient air” is not defined in the Clean Air Act, the Judge first determined the proper statutory construction. He concludes that based on both canons of statutory construction and prior case law, “ambient air” should apply exclusively to outdoor air, and thus excludes indoor air.

Since the definition of “ambient air” excludes indoor air, the Defendants want to exclude any reference to Government testing of indoor facilities and the indoor air.

The Judge granted the motion in part and denied the motion in part. The Judge excluded any indoor release evidence as it pertains to the Clean Air Act, but allowed the indoor release evidence as it applies to the obstruction and conspiracy charges.

Readers can view:

Defendant Motion
Government Response
Defendant Reply
Judge’s Order

For greater discussion on indoor release, click here.

– Audrey Schultz

Defendants’ Motion in Limine: Asbestos Definition

In this motion, the Defendants and Government argue over the definition of asbestos as it applies to the Clean Air Act.

The Defense argued a narrow reading of the term asbestos set forth in the civil regulations that implement the Clean Air Act; this definition excludes the minerals that comprise the majority of the amphibole found in Libby (amphibole defines a particular group of common rock-forming silicate minerals). The definition found in the regulations list six minerals and excludes other asbestiform minerals.

The Government urged the Judge to adopt a broad construction of the term asbestos to include all of the minerals comprising the “Libby amphibole.”

The Judge granted the Defendants’ motion and adopted the Defendant’s narrower definition of asbestos that consequently excluded the majority of the amphibole minerals and thus, evidence, found in Libby.

The Government appealed the Judge’s decision to the 9th Circuit Court of Appeals.

The 9th Circuit Court of Appeals panel reversed the decision by Judge Molloy regarding the definition of asbestos. The Court stated, “This ruling eliminated from trial evidence of releases of 95 percent of the contaminants in the Libby vermiculite—which are asbestiform minerals but fall outside of the six minerals in the civil regulatory definition.” The panel ruled Molloy improperly limited the term, saying asbestos need not include “mineral-by-mineral classifications to provide notice of its hazardous nature, particularly to these knowledgeable defendants.”

Readers can view:

Defendant Motion
Government Response
Defendant Reply
Judge’s Order
Government’s Appeal

For more discussion on Clean Air Act Battles, click here.

– Audrey Schultz

Defendants’ Motion in Limine – NIOSH Study

In this motion, Defendants wanted the Judge to exclude all evidence of alleged attempts to defraud the National Institute of Occupational Safety and Health (NIOSH). The Defendants have been charged with defrauding NIOSH by obstructing an epidemiological study that NIOSH proposed to conduct of Libby workers.

NIOSH wanted to conduct a study involving W.R. Grace workers in Libby. W.R. Grace attempted to persuade NIOSH not to study the Libby workers because it would only show that asbestos was dangerous, and NIOSH would not be able to draw any conclusions from the study about exposure to vermiculite. Additionally, W.R. Grace stated that the results would likely present economic harm. In the process of trying to persuade NIOSH not to do the study, W.R. Grace told NIOSH that it would present its arguments to a higher authority within the government.

The Defendants argued that the conspiracy charge against NIOSH was not an act of obstruction, but an attempt by W.R. Grace to challenge a proposed governmental action within its constitutional right under the First Amendment, the right to petition the government. The Defendants argued that the law cannot and does not prohibit citizens from expressing disagreement with government, and thus Grace’s conduct cannot serve as the basis for criminal liability.

The Government responded tongue-in-cheek by stating that while the First Amendment may protect the Defendants’ right to challenge NIOSH, it does not protect a Defendant’s ability to defraud a governmental agency. The Government asserted that the Defendants have no First Amendment right to mislead the government. The Government stated that this evidence will be viewed in light of the entire conspiracy, which alleges the Defendants were frustrating and impeding governmental agencies. The Government suggested that the proper forum for discussing the Defendants’ conduct is in the jury room.

The Judge denied this motion. The Government will be able to present evidence of the Defendants’ alleged fraud of NIOSH as part of the conspiracy charges and the Defendants may object as they see fit.

Readers can view:

Defendant Motion
Government Response
Judge’s Order

– Audrey Schultz

Motion in Limine – Evidence Showing Fraud

In this motion, the Defendants ask the Court to exclude any evidence that shows that the Defendants had a conspiracy to defraud any party other than the United States or its agencies—largely the EPA. These “other” parties would include: employees of Grace, the families of the employees of Grace, the residents of Libby, and the communities in Lincoln County.

The Government plans to use evidence that includes statements and documents from the “other” parties in order to show that Grace had a conspiracy to defraud the Government—the EPA. The government explains that there is a logical connection between Grace’s actions to mislead those “other” parties about the danger of asbestos, and Grace’s intent to defraud the Government—the EPA.

This will be a key decision by the judge, since the decision will either allow or prevent a large quantity of evidence by the Government.

Readers can view:

Defendant motion
Government’s response
Defendant reply
Judge’s order deferred until trial

– Audrey Schultz

Motion in Limine – Government’s Use of Depositions and Trial Transcripts

In this motion, the Defendants want each Defendant to testify at the trial, in person, instead of through depositions or past trial transcripts. The Defendants, essentially, do not want the jury to know that they have been sued multiple times in civil court for damages because they think that the jury will hold it against them in deciding the verdict.

The government has responded by saying that they will only introduce the parts of the depositions and trial transcripts which are relevant to this criminal case.

The judge will have to decide whether the portions of the depositions and the trial transcripts that the Government wants to introduce into evidence are relevant to the case.

Readers can view:

Defendant motion
Government’s response
Defendant reply
Judge’s order deferred until trial

– Audrey Schultz

Defendants’ Motion in Limine – Health Effects Study

In this motion, the Defendants sought to exclude evidence of health effects studies and product tests conducted or commissioned by W.R. Grace in the 1970s and 1980s. The Defendants argue that the studies and tests are irrelevant to the charges in this case because, as a matter of law, the Defendants were under no legal obligation to inform the EPA of the information contained in the studies.

The Government argues that each of these studies should have been reported under the Toxic Substances Control Act (TSCA), Section 8(e), effective in 1977. The Government argues that the Defendants’ failure to report the studies constitutes an act in furtherance of the defrauding conspiracy.

Section 8(e) states:

Any person who manufactures, processes, or distributes
in commerce a chemical substance or mixture and who
obtains information which reasonably supports the
conclusion that such substance or mixture presents a
substantial risk of injury to health or the environment
shall immediately inform the Administrator of such
information unless such person has actual knowledge
that the Administrator has been adequately informed of
such information.

The Judge denied the motion. He stated that whether W.R. Grace complied with TSCA reporting requirements—and if not—whether it was in furtherance of fraud or conspiracy are questions for the jury.

Readers can view:

Defendant Motion
Government Response
Judge’s Order

For greater discussion click here.

– Audrey Schultz

Defendants’ Motion in Limine – Position as Officer Does Not Equal Knowledge under the Clean Air Act

In this motion, the Defendants want the Judge to bar the Government from arguing or offering evidence that Mr. Walsh, one of the Defendants, is criminally liable for the conspiracy charge solely by virtue of his prior corporate positions as president of W.R. Grace’s Construction Products Division, executive vice-president of Grace Specialty Chemicals Co., and senior vice-president of W.R. Grace.

The Government agrees that the jury should not be permitted to find Mr. Walsh criminally liable based solely on his respective positions in the corporation. However, the Government contends that they should be able to present evidence of Mr. Walsh’s corporate positions for the jury to consider as it decides the culpability of Mr. Walsh.

The Judge denied the Defendants’ motion. He held that these questions should not be decided by the Judge, through a motion in limine, but by a jury at the trial. He stated that any objections should be raised at trial.

Readers can view:

Defendant Motion
Government Response
Defendant Reply
Judge’s Order

– Audrey Schultz

Defendants’ Motion In Limine – Grace Civil Litigation

Defendants ask to exclude evidence of unrelated civil litigation in Government Exhibits 296, 323, and 328, as well as any related testimony or any references in the Government’s opening statement or closing argument. The exhibits relate to civil litigation involving W.R. Grace from 1981-1983. Government Exhibit 323 is an offer referencing intent to settle the lawsuit. Evidence of “offers to settle” are expressly inadmissible by the Rules of Evidence (FRE 408). Government Exhibit 328 is an inter-office memorandum regarding the same offer to settle. Government Exhibit 296 is also an inter-office memorandum referencing the same civil litigation.

Defendants argue that because the exhibits address unrelated civil litigation it is inappropriate in this criminal case. Additionally, the exhibits carry a risk of unfair prejudice and confusion of the issues and should also be excluded. The exhibits discuss an unrelated personal injury lawsuit and reflect the typical negotiations in such cases, explain the Defendants, but bear no relevance or pertinence to this criminal case. The exhibits do, however, have the potential to confuse the jury about the issues in the instant case, and even if they were minimally relevant, have the potential to substantially prejudice the Defendants while adding little to the Government’s case.

The Government argued in response that while other circuits have ruled on the issue of “offers of settlement” being used in a criminal case, this circuit has not. Furthermore, the Government points out that some circuits allow “offers of settlement” from a civil suit to be offered as evidence in a later criminal case because the prosecution of crimes is more important than resolving civil disputes. Other circuits have found such offers of settlement inadmissible in either criminal or civil cases. The rule, argued the Government, “does not operate as a bar to introduction of the evidence in the current criminal case because the current case does not involve litigation of the claim made by [the plaintiff] back in 1981.”

Because the rule allows the evidence to be admitted for other purposes “such as proving bias or prejudice of a witness,” the Government also offered an alternative argument. The Government’s argument is captured in the following statement:

[T]he Government seeks to introduce the evidence to show that the defendants knew their product was causing adverse health effects beyond occupational exposure occurring at the Libby Mine. This, of course, directly refutes one of the primary defenses advanced by the defendants—that technological advances in the 1970s reduced the hazard associated with vermiculite so as to make it safe for ‘downstream users.’

The Government also argued that any alleged prejudice to Defendants posed by this evidence is outweighed by its ability to show that “defendants knowingly placed another person in imminent danger of death or serious bodily harm” and the Court can issue a limiting instruction to the jury to counteract any confusion or prejudice.

There is no Reply to the Government’s Response brief and the Order has been deferred until trial.

Readers can view:

Defendants’ Motion
Government’s Response
Federal Rules of Criminal Procedure
Federal Rules of Evidence

For more discussion on Grace Civil Litigation, click here.

–Kirsten Madsen

Defendants’ Motion in Limine – Fraud on Other Agencies

In this motion, the Defendants move to exclude any evidence of defrauding governmental agencies other than the two identified in the Indictment—the EPA and the National Institute for Occupational Safety and Health (NIOSH). The Defendants argue that the presentation of any other fraud will go beyond the scope of the indictment.

This motion in limine is similar to Defendants Motion in Limine–Fraud on Non-Federal Agencies. While Judge Molloy has yet to rule, these motions will likely be decided jointly at trial.

Readers can view:

Defendant Motion

– Audrey Schultz

Defendants’ Motion in Limine – Admissibility of Co-Conspirator Statements

In this motion, the Defendants request that the Court hold a pre-trial James hearing to determine the admissibility of statements alleged to have been made by co-conspirators, both indicted and unindicted.

The James hearing stems from United States v. James, 590 F.2d 575, 582 (5th Cir. 1979). In James, the court held that a separate hearing out of the presence of the jury—in which the parties develop all pertinent evidence of the conspiracy and defendant’s involvement—may be the optimum method for avoiding inadvertent introduction of hearsay and error, but that these hearings are not always feasible.

The Defendants want a James hearing to determine which evidence by co-conspirators may be allowed during the actual trial. They argue that without a James hearing to determine admissible evidence, they will be forced to object repeatedly throughout the trial. The Defendants argue that this will not only slow the progress of the trial, but could also have a harmful effect on jurors and their attitude toward defense counsel.

The Government argues that a James hearing would be an unwarranted waste of judicial resources and would require the Government to argue its case in chief before the trial. The Government states that a James hearing is not required under Ninth Circuit law and that the Ninth Circuit Court of Appeals has “declined to express a ‘preference’ for pretrial determination of admissibility of the co-conspirator statements.” United States v. Perez, 658 F.2d 654 (9th Cir. 1981). A statement is not hearsay if it is offered against a party and is made by a co-conspirator during the course and in furtherance of the conspiracy. (Fed. R. Evid. 801(d)(2)(E)).

The Judge denied this motion. He stated, “The court has no intention of trying the case in the absence of the jury. The request for a James hearing will accomplish nothing that cannot be just as easily dealt with at trial. . . .”

Readers can view:

Defendant Motion
Government Response
Defendant Reply
Judge’s Order

– Audrey Schultz

Motion in Limine – Exclude Expert Witness Dr. Lockey

In this motion, the Defendants moved to exclude the testimony of Dr. James Lockey. Judge Molloy denied the motion finding that Dr. Lockey’s work was relevant and reliable enough for him to testify to those opinions so long as his testimony was not based on any of the ATSDR results.

The Defendants argued that studies in 1984 and 2004 (the O.M. Scott Study) along with the ATSDR screening program conducted in Libby in 2000 and 2001 are irrelevant. Additionally the Defendants argued that the testimony should be excluded because it would mislead the jury.

In his order Judge Molloy quickly dismissed any reference to the ATSDR screening program reiterating the fact that he had already ruled the ATSDR screening program’s findings were “unreliable and irrelevant” and therefore inadmissible.

Specifically, the Defendants contended that Dr. Lockey’s testimony would be prejudicial because jurors would assume the pre-1999 exposures that Dr. Lockey studied were similar to post-1999 exposures and the burden is on the Government to prove endangerment from releases occurring after November 3, 1999.

After rejecting the majority of the Governments arguments Judge Molloy addressed whether Dr. Lockey would be able to give an opinion about post-1999 endangerment based on the O.M. Scott Study. Judge Molloy concluded that Dr. Lockey’s expert report was sufficient for him to opine as to asbestos-related lung problems post-1999 because Dr. Lockey had cited studies other than the ATSDR screening program in his expert report.

Readers can view:

Defendant motion
Government’s response
Judge’s order

– Paul Nicol

Motion in Limine – Exclude Expert Witness Dr. Black

In this motion, the Defendants moved to exclude the testimony of Dr. Brad Black. Judge Molloy denied in part and deferred in part. Judge Molloy denied the Defendants’ motion to exclude Dr. Black as an expert that had not been disclosed but deferred ruling on the admissibility of Dr. Black’s fact testimony.

The Defendants argued that the Government was attempting to present Dr. Black’s expert opinion under the guise of lay witness testimony. Subsequently the Defendants asserted that Dr. Black should not be allowed to testify because the Government had failed to provide an expert disclosure. The Defendants also argued that pursuant to Fed. R. Evid. 403, Dr. Black’s testimony should be excluded because it has no probative value and might mislead the jury.

The Government did not contest that it had not provided an expert disclosure, instead it reasserted that it only intends to call Dr. Black as a fact witness. The Government explained that Dr. Black’s testimony would be limited to a general discussion of his medical practice and a discussion of the 2005 HNA/Triveris audit which revealed that some patients were told by Grace they were not suffering from asbestos-related disease.

Judge Molloy determined that since the Government was not using Dr. Black as an expert, failure to provide expert disclosure was moot. Judge Molloy went on to conclude that a determination of the admissibility Dr. Black’s fact testimony would have to be made at trial where relevance could be evaluated by what the proof shows.

Readers can view:

Indictment
Defendant motion
Government response

– Paul Nicol

Motion in Limine – Exclude Expert Witness Dr. Whitehouse

In this motion, the Defendants moved to exclude the testimony of Dr. Alan C. Whitehouse. Judge Molloy denied the motion finding that; 1) Dr. Whitehouse is qualified to testify, 2) Dr. Whitehouse’s opinion is relevant and 3) Dr. Whitehouse’s opinion is based on reliable science.

Citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Defendants first asserted that Dr. Whitehouse’s testimony would not speak “clearly and directly” to issues relevant to the indictment. The Defendants alleged Dr. Whitehouse’s testimony would not “fit” the allegations of the indictment because some of Dr. Whitehouse’s patients were diagnosed with having asbestos related diseases as a result of pre-1999 exposures.

The Defendants next argued that Dr. Whitehouse’s diagnostic practices were not in conformity with the medical criteria set forth by the American Thoracic Society. The Defendants asserted that Dr. Whitehouse’s exposure histories are unreliable because they do not contain enough information about “intensity and duration” of his patient’s asbestos exposure.

The Defendants’ final argument specifically targeting the scientific methodology and the structure of Dr. Whitehouse’s Whitehouse Observation Study. The Defendants argued that the diagnosis and the use of Pulmonary Function Tests (PFTs) were unreliable. The Defendants also claimed that the study suffered from selection bias, failed to use control groups and failed to properly report the PFT data. The Defendants characterized Dr. Whitehouse’s methodology as “junk science and junk medicine.”

Despite the fact that the Defendants submitted a 20 page brief in an attempt to prevent Dr. Whitehouse from testifying, Judge Molloy denied the motion with only a few paragraphs.

Judge Molloy gave his opinion of the Defendants’ motion in the following statement:

Careful examination of the opinions offered by Dr. Whitehouse reveals that he is eminently qualified to render the opinions tendered in his disclosure. His opinions bear directly on issues in the case and they are based upon reliable scientific and medical methodologies. The defendants’ nit picking and ad hominem attacks are better saved for argument. He will be allowed to testify in accordance with his disclosure.

Readers can view:

Defendant motion
Government response

– Paul Nicol

Motion in Limine – Exclude Government Witnesses

In this motion, the Defendants moved to exclude lay witness testimony and evidence relating to the Government’s “victim witnesses.” Judge Molloy granted the motion in part and denied it in part. Judge Molloy ordered that the witnesses could not be referred to as “victims” but the Government could still call witnesses to have them testify about “human pathways of potential exposure.”

The Defendants primarily argued that the probative value of the testimony would be substantially outweighed by the prejudicial effect. Specifically the Defendants alleged that the Government is attempting to “play to the jury’s emotions” through the testimony of over 40 witnesses with illnesses to create the impression “that those illnesses relate to the conduct charged in the indictment.” The Defendants cited United States v. Bradley, 5 F.3d 1317, 1321 (9th Cir. 1993), for the assertion that evidence should be excluded if it “provokes an emotional response in the jury” but does not relate to the “guilt or innocence of the crime charged.”

The Defendants also argued that the testimony of the “victim witnesses” would be irrelevant. The Defendants alleged that the testimony of these witnesses would not demonstrate that post-1999 exposures placed individuals in imminent danger of serious bodily harm.

The Government pointed out in its response brief to the Defendant’s Motion in Limine that the standard for evidence to be relevant is low. The Government cited Fed. R. Evid. 401 which sets the standard for relevancy, as evidence with “any tendency to make the existence of any fact” helpful to the determination “more or less probable than it would be without the evidence” admissible. The Government argued that because this evidence was “direct evidence” and would assist the trier of fact it should be admitted.

Judge Molloy ordered that the witnesses could not testify about the “personal effects of any asbestos related disease” but he did not preclude the “victim witnesses” from testifying about “diagnosis of disease” so long as the Government can show that some pathway of exposure relates to the Defendants. Judge Molloy also noted that the number of witnesses may be subject to objection under Fed. R. Evid. 403 and 611 which prohibit waste of time and allow the Court to control the presentation of evidence.

Readers can view:

Defendant motion
Government response
Defendant reply

– Paul Nicol

Motion in Limine – Testimony of Paul Peronard

Readers can view:

Defendant motion
Government response
Defendant reply

– Paul Nicol

Main menu:

Subpages for Legal issues: Pretrial:

Defendants’ Joint Motions in Limine