Through the questioning of four witnesses, the defense showed that Grace took action to monitor and reduce workplace dust, that company executives weren’t afraid to take their families to the mine, which they wouldn’t have done if they had known the dangers of breathing Libby dust, and that a copy of an environmental assessment was sent to Mel and Lerah Parker, who bought former Grace property.

Randy Geiger, the engineer and overseer of Grace’s air quality tests, testified that Grace took a series of steps to reduce workplace dust. Dust mitigation efforts were directed at different stages of processing the ore and at different locations on the mine property. Ventilation was a primary concern, Geiger said, and the company installed air filters and ducts to give workers cleaner air to breath.

On cross-examination of Geiger, prosecuting attorney Kris McLean suggested the ventilation was ineffective. “Are you familiar with the phrase ‘The solution to pollution is dilution’?” McLean asked Geiger.

Geiger said he knew the phrase, and McLean said the ventilation system was nothing more than diluting the air. But Geiger said there was also filtration of the air. Outside air was brought in, dusty air was emitted outside the workplace and outgoing air was filtered, Geiger said.

Defense attorney Walter Lancaster was brief in his redirect examination of Geiger and sought only to show that Grace’s dust controls were effective and made the workplace safer. Lancaster referred to test results that showed acceptable levels of fiber concentrations.

“All the numbers (fiber concentration levels) are a fraction of PEL’s (permissible exposure levels) and internal goals, isn’t that right?” Lancaster asked Geiger.

“Yup,” Geiger said.

The defense then called Mike McCaig to the stand, son of former Grace manager and defendant in this case William McCaig. Mike McCaig is a computer programmer from Simpsonville, South Carolina. He grew up in Libby and graduated form Libby high school in 1989.

Through Mike McCaig’s testimony, the defense showed that William McCaig brought his family up to the mine, used mine products in the family garden and wouldn’t have done so had he known the health risk of breathing dust from the contaminated vermiculite.

Defense attorney Elizabeth Van Doren Gray also wanted to know about Mike McCaig’s high school experience. McCaig said he was on the football team and played in the school marching band. Van Doren Gray wanted to know how he could play on the team and in the band at the same time.

“I’d have to run to the locker room, pull, off my shoulder pads and run back out on the field,” McCaig said to the bemusement of the court.

“Did this happen every game?” Van Doren Gray asked.

“Every game when the band had to play,” McCaig said.

The defense also called Dale Cockrell to the stand, who testified earlier in this trial. Cockrell is an asbestos lawyer from Kalispell, Mont., and represented Kootenai Development Corporation in the sale of former mine properties.

Defense attorney David Bernick questioned Cockrell about his interaction with the Environmental Protection Agency. Cockrell said EPA promised him immunity from liabilities associated with the mine in exchange for using the mine as a dump site for contaminated mine products and tailings. But Bernick pointed out that this agreement never came to fruition and that EPA didn’t hold up its end of the bargain. Cockrell agreed that the agreement was never finalized and that KDC stock was sold to Grace. Bernick also noted that EPA recommended the sale and looked forward to working with Grace.

The defense’s final witness of the morning was Patrick Platenburg of the Montana Department of Environmental Quality. Platenburg began working for the DEQ in 1995 and worked for the Department of State Lands from 1987 to 1995. He was involved in the 1993 draft environmental assessment of cleaning up the Libby mine site.

He testified that Libby resident and owner of former mine property Mel Parker was concerned about cleanup of the mine site and his property. Mel and Lerah Parker bought property that was the former Grace screening plant and full of contaminated vermiculite tailings. The prosecution claims that Grace failed to disclose the health hazards the Parkers faced.

Bernick presented a document from 1993 that acknowledged a phone conversation between Platenburg and Parker, and asked how Platenburg responded to this conversation.  Platenburg said he sent a copy of the draft environmental assessment to the Parkers.

Platenburg’s testimony rebuts the prosecution’s charges of knowing endangerment, Count III of the superseding indictment. The prosecution charges that Grace put the Parkers in imminent danger when the company sold them the ex-screening plant.

–Will Grant (posted 2:45 p.m.)

“I am not prepared to do it in the absence of knowing what the government’s position is and the defense’s position,” Molloy said. “I am not going to shoot from the hip on this one.”

The issue with Locke stems from his testimony earlier in the trial. Locke testified under oath that he had a conversation with former Grace executive and defendant Robert Bettachi about whether Grace should sell its Libby properties. According to Locke, Bettachi said “caveat emptor,” meaning “buyer beware” in response to Locke’s concerns. However, this contradicted testimony Locke gave to a grand jury in 2005, where he said that he never discussed property sales with Bettachi.

Molloy referenced a past 9^th Circuit Court case, U.S. v. Chapman, which was ultimately dismissed due to similar issues. Molloy said that letting Locke continue in the case “would not be consistent” with the U.S. v. Chapman decision. However, the judge reiterated that he had not yet made his  decision. Regarding the possibility of a case dismissal, Molloy said, “I’m not prepared to go there.”

If Locke is allowed to continue, the defense may cross-examine him at a later date. The jury, which was not present today, will return to court at 8:30 a.m. next Tuesday, Molloy said.

After Molloy’s address to the court, government prosecutor Kris McLean went through a series of exhibits he wants admitted into evidence. He presented many of the exhibits as proof of specific overt acts listed in the government’s case against the defendants.

Many of the exhibits were memos or letters between the defendants, and several were additions to already admitted exhibits. One exhibit was a copy of a NIOSH report sent from defendant Robert Walsh to several other Grace executives, with handwritten notes from Walsh on it. One note said “Not true, but o.k,” in response to a line in the study that read “no cases of fibrosis were observed among workers with less than 30 f-y” (fiber years).

Another was a letter from defendant William McCaig to other Grace employees discussing an interview he had with a reporter about Libby asbestos. The document said that McCaig told the reporter that the tremolite asbestos hazard was not understood completely but was “discussed.”

Along with the NIOSH study, several of the exhibits involved the asbestos study done by Dr. McDonald for Grace. Most of exhibits involving the McDonald study were correspondences between Walsh and defendant Henry Eschenbach.

Several of the McDonald study exhibits included Grace employee death certificates. Appearing irritated, Molloy pointed out that only one of the certificates in the first McDonald study exhibit involved death from cancer. Other deaths stemmed from a variety of causes such as car wrecks and suicides. Molloy worried that the collection of death certificates could lead the jury to false conclusions.

“The problem is, if those go in, what’s the jury going to do, sit in the back room and say, ‘All those guys died because of Grace’?” Molloy said.

McLean explained that the death certificates were just part of the exhibit, and can be left out if needed.

“We can’t really explain why these were collected and forwarded on as they were,” McLean said.

Molloy did not indicate which, if any, of the exhibits will be admitted at the conclusion of McLean’s presentation. Instead, discussion was set to continue after the noon recess.

–Ryan Thompson (posted 1: 42 p.m.)

In an attempt to lay foundation for Lemen’s testimony, Cassidy questioned Lemen about his education, experience, publications and general duties. Cassidy tried to illicit testimony from Lemen as an expert in epidemiology and an expert industrial hygienist. After repeated objections from Grace defense attorney David Bernick regarding questions about industrial hygiene, Judge Molloy dismissed the jury to discuss the matter with counsel. Bernick argued that Lemen may testify about epidemiology, but he is not qualified to testify as an expert on industrial hygiene. Cassidy argued that he could lay the proper foundation to show that Lemen is also an expert in industrial hygiene. Judge Molloy quickly resolved the matter by telling Cassidy that the Government only disclosed Lemen as an expert in epidemiology so they do not get to offer him as an expert industrial hygienist, “period.”

The jury returned and Cassidy continued with his direct examination asking Lemen questions about epidemiology. Lemen explained that the task of an epidemiologist is to go to an area where people are getting sick and try to determine why they are getting sick. According to Lemen the basis of all disease is based in the action of material and what it does to cells in the human body.

When asked about his expert opinion regarding the danger of exposure to vermiculite, Lemen testified that exposure to vermiculite is an asbestos related disease. Asbestos related disease is a dose response disease which means that the higher the exposure, the higher the risk of getting the disease. Lemen stated that when fibers are respirable, as they are with asbestos, then the risks start adding up and become cumulative. When asked about Libby in specific, Lemen testified that as long as there is potential for exposure to asbestos in the community, then there will be a substantial risk to the individuals in that community.

-Shannon Foley (5:00 p.m.)

After the termination of McLean’s direct examination, W.R. Grace defense attorney, Walter Lancaster, conducted a brief cross-examination of Geiger. Lancaster primarily questioned Geiger on what the Government told him in regard to evidentiary issues and the witness testimony of Paul Peronard. Judge Molloy brought Lancaster’s line of questioning to a close indicating that a Rule 615 Motion had been granted which allows the exclusion of witnesses so that they may not hear the testimony of other witnesses. As a result of this motion the Government had no obligation to provide Geiger with Peronard’s testimony and Lancaster should move on from the issue.

William Coates, defense attorney for William McCaig, continued the cross examination of Geiger but only asked him whether the wetness of the track would affect the amount of fiber release. Geiger indicated that he assumed the fiber release would be lessened if the track was wet. David Krakoff, defense attorney for Henry Eschenbach, briefly questioned Geiger about whether W.R. Grace conducted health surveys and chest exams of their employees to track their overall health. Geiger indicated that Grace did in fact take such measures.

Carolyn Kubota, defense attorney for Jack Wolter, finished the cross-examination of Geiger by asking about Wolter’s aggressive goals of lowering fiber exposure. Geiger affirmatively answered that Wolter did make lower fiber exposure a priority, approved funding for lowering fiber exposure and ultimately drove fiber exposure levels down. McLean’s re-direct was short and to the point merely asking Geiger how many times he recalled Henry Eschenbach visiting the Libby plant site during his 14 years of employment. Geiger indicated he only recalled a few visits during his initial years of employment.

The two witnesses that were scheduled to follow Geiger were skipped due to stipulation between the parties. Judge Donald Molloy requested McLean instruct the jury on the meaning of this stipulation. McLean told the jury that both parties were stipulating that Grace donated mill tailings to Libby High School and Junior High for the surfacing of their tracks. As a result of this stipulation, the testimony the two scheduled witnesses would have provided is now unnecessary.

The Government then called Leroy Thom to the stand. Thom is a small business owner in Libby who worked for Grace from 1974-1992. The Government’s attorney, Kevin Cassidy, questioned Thom about his duties at Grace during 1991 and 1992, considering the mine was shut down in 1990. Thom explained that he was involved in the tearing down of the mill. Cassidy asked Thom if he recalled seeing vermiculate and Thom replied, “Yes, lots.” Cassidy then requested Thom describe what he saw, but the defense quickly objected citing relevance and cumulative. Judge Molloy sustained the objection. Cassidy proceeded to question Thom about whether vermiculite was available for the people of Libby to take home and put in their gardens and whether he observed other Grace workers covered in dust. Defense counsel objected to both lines of questioning once again citing relevance and cumulative, but Judge Molloy overruled both objections and Thom answered both series of questions in the affirmative. The only cross-examination that was conducted on Thom was when Coates asked him if Bill McCaig ever took vermiculite home to put in his garden. Thom said he did not know and was released from the stand.

The Government then called Francis Landis, a retired Grace employee, as their next witness. Landis was a member of the crew in charge of tearing down the screening plant. On direct examination Landis was asked about his observations of wind blowing dust around. The defense attempted to strike this portion of the testimony but Judge Molloy overruled. On cross-examination Walter Lancaster inquired as to whether Landis recalled wearing any sort of fiber monitor during the demolition. Initially Landis expressed that he did not recall wearing one, but after the defense provided a document suggesting otherwise Landis said that although he doesn’t remember, it is possible that he did wear such a monitor at some point during demolition.

Landis and the jury were dismissed for the day and Judge Molloy called for a brief recess. Before leaving the courtroom, Judge Molloy suggested that McLean and David Bernick, attorney for W.R. Grace, discuss and resolve their witness issues. According to Judge Molloy, if the parties fail to resolve their issues then he will, however, this is not an invitation to not resolve things.

-Shannon Foley (5:00 p.m.)