UM Grace Case

In an attempt to discredit the testimonies of prosecutorial expert witnesses, Dr. Saresh Moolgavkar, an epidemiologist and witness for the defense, suggested Thursday afternoon that the Environmental Protection Agency had overestimated the environmental exposure risks for the community of Libby, Mont.

“There is … no evidence of an increased risk at Libby from environmental exposure,” he said.

In direct examination under defense attorney David Bernick, Moolgavkar explained that he had analyzed both the findings of Dr. Aubrey Miller and Dr. James E. Lockey in 2008 and subsequently found oversights in both their work.

Moolgavkar said that the techniques of Miller, who found an environmental exposure risk of 1 in 10,000 for Lincoln County, did not allow for data to be as precise as one would get using an epidemiological study.

Citing a decades-long mortality study done by the Agency of Toxic Substances and Disease Registry, Moolgavkar said, “A risk of 1 in 10,000 could never be observed in this kind of epidemiological study.”

Moolgavkar also argued that Lockey’s pleural plaque threshold, or the minimum amount of asbestos exposure needed for one to be at risk for that disease, was underestimated. The witness cited flaws in data analysis and Lockey’s own admission that he may have underestimated due to outside, independent risk factors not related with asbestos.

“If a man smokes 40 cigarettes a day for 40 years, and walks past a bar and gets a whiff of cigarette smoke and gets lung cancer, I don’t think we can say that the secondhand smoke caused it,” Moolgaykar said.

In cross-examination, Moolgaykar was asked by prosecutor Kris McLean to provide the government with the data he used for his analysis. However, in redirect, defense attorney David Bernick said that Moolgaykar’s data was lifted from the government’s own documents.

At one point, McLean began to press Moolgaykar on his connections with W.R. Grace. Moolgaykar said that he had testified for the company twice since 2002 and had worked  once previously with Bernick.

Court is set to resume Tuesday at 9:00 a.m.

- Nate Hegyi (posted 5:58 p.m.)

The defense continued its case this afternoon, as W.R. Grace attorney Walter Lancaster (no relation) examined geologist and former Grace employee, Eric Moeller. Moeller arrived in Missoula less than an hour before testifying, following a whirlwind trip from Germany, a trip which began earlier in the week when he learned that Grace wanted his testimony. Lancaster had Moeller describe his history, both as to his education and experience as a geologist, but also as a Grace employee. Moeller has worked for Grace in various duties around the country, including at the Libby mine and at Grace headquarters in Cambridge, Massachusetts, although he is now a private consultant.

Moeller had originally been considered as a prosecution witness, but it was the defense who ultimately called him. He testified about the conditions he remembered from working at Libby, as well as his efforts (when he worked in Massachusetts) to help former Libby manager Alan Stringer, the deceased former defendant, answer the EPA’s second 104(e) request for information. When asked about the conditions of the mining efforts, Moeller said, “This isn’t pick and shovel mining anymore, most things are mechanized,” and, in regards to miners and dust, that most of the time, “[t]he worst they would get is some mud on their boots.”

On cross examination prosecutor Kevin Cassidy got Moeller to tell the jury that he had never actually seen the EPA’s request in its entirety. After a few other questions and a brief redirect, the defense called Dr. Suresh Moolgavkar, their expert in epidemiology, biostatistics, and quantitative risk assessment. After defense attorney David Bernick laid extensive foundation, Judge Molloy ruled Dr. Moolgavkar could testify as an expert in these areas. Using detailed slides as demonstrative exhibits, Bernick had Moolgavkar testify about methodological flaws in the EPA’s determination of the risk to Grace workers. Moolgovkar, as an expert in epidemiology, testified that the Grace employees’ data should be best analyzed as a “cohort study,” a statistical method less reliable than a “randomized trial” (consisting of random control and exposure groups), but significantly more reliable than an “ecological study” (where entire populations are examined with no control groups). When Moolgavkar got to a slide where he summarized his finding in such a way as to tell the jury that the EPA had significantly overestimated the risk to Grace employees when compared to three other analyses of the same data, prosecutor Kris McLean objected for lack of disclosure.

After excusing the jury, Molloy heard arguments on the objection. McLean claimed that the defense had not appropriately informed the prosecution of the substance of Moolgovkar’s testimony, thereby preventing preparation of a proper cross-examination. Bernick replied by pointing out specifics in one of the defense disclosures, and Molloy overruled the objection. The court then took a brief recess.

Mark Lancaster – posted 5:22 pm

The defense raced closer and closer to finishing their case early Thursday afternoon as two witnesses, a former W.R. Grace geologist and epidemiologist took the stand.

Geologist Eric Moeller, who now does independent consulting for mining companies, found out two days ago that his testimony would be needed this week in Missoula.  Moeller was then in Europe for both business and vacation purposes. He said he hopped on a plane and from Zurich, Switzerland, to Los Angeles to San Francisco, to Denver and finally Missoula, he arrived in town about an hour before his testimony.

Moeller told of his relationship with defendant, co-worker and friend, Alan Stringer, who died in 2007. The two were quite close and they frequently skied together outside of work at Turner Mountain. Moeller said he thought  Stringer would never engage in criminal activities and that he took an active and positive role in the community. Moeller was also involved in a 2004 government deposition about the condition of  the mine.  Moeller did work in Libby until 1984, but later moved to Cambridge, Mass., to work for Grace as a sales manager. Moeller said that Stringer continued to call him and ask him questions that the Environmental Protection Agency had been asking him about conditions in Libby.

Moeller had worked and driven company trucks on Rainy Creek Road and said that the dust didn’t seem to be an  problem when he worked at the Libby Mine. “It’s a mining operation, it’s somewhat dirty. All the mining equipment was pressurized, clean air blown in. The dust wouldn’t get back into the cab. This is not pick and shovel mining anymore,” Moeller said.

The second witness of the afternoon was Dr. Suresh Moolgavkar.  He is an epidemiologist and biostatistician. Bernick began his direct examination of Moolgavakar’s by listing the scientist’s many accomplishments.  Moolgavkar spent his time before the afternoon recess prepping the jury on understanding the scientific method and stopped testimony for the afternoon recess just after 3 p.m.

-Kelsey Bernius      (posted 4:45 pm)

Defense witness William M. Corcoran, Vice President of Public and Regulatory Affairs for W.R. Grace & Co., testified late Thursday morning under the direction of defense attorney Bernick.  Corcoran joined W.R. Grace & Co. in 1999 with the responsibility for environmental, health and safety, communications and governmental affairs.

Corcoran wrote an infamous letter, dated April 10, 2002, to Christine Todd Whitman, the then Administrator of the EPA.  The Government pulled direct quotations from the letter to use in the indictment, Count VII, Obstruction of Justice against Grace. In 2001-2002, the EPA proposed to declare a federal public health emergency across the United States because of Zonolite Attic Insulation (ZAI). The letter followed a meeting about ZAI between the EPA and Grace.  In the letter, Grace recommended that the EPA should not declare a public health emergency because Grace’s independent scientific and statistical data showed little risk—to human health or the environment—from properly installed ZAI.

The indictment, Count VIII, Obstruction of Justice states:

W.R. Grace did corruptly obstruct, impeded, and endeavor to . . . in a letter to the Administrator of the EPA . . . “Grace’s expanded vermiculite, which was used in ZAI, poses no risk to human health or the environment.” “ . . . [ZAI] contains biologically insignificant amounts of respirable asbestos fibers;” “. . . it is reasonable to expect that disturbance of [ZAI] will not result in hazardous levels of airborne asbestos fibers;” and “. . . there is no credible reason to believe that ZAI has ever caused an asbestos-related disease in anyone who has used in his/her home.”

Corcoran testified that Grace’s letter petitioned the Government to make a scientific determination about ZAI.  According to Corcoran, the Government has not disproved Grace’s scientific and statistical data.  In fact, Bernick introduced a couple of studies that corroborated Grace’s scientific data about ZAI.  One example, a NIOSH study, stated that a public health emergency in connection with ZAI was unwarranted.  Corcoran stated that W.R. Grace had hoped that the EPA would respond to the content of the letter—but the EPA failed to do so.  The EPA ultimately decided not to declare a public health emergency.

Bernick switched back and forth between the letter and the indictment to show that the information in the letter did not corruptly obstruct or impede the Government, but instead recommended a course of action.

— Audrey Schultz (posted 3:10 pm)