March 10, 2009
All blog posts filed March 10, 2009, are duplicated here in reverse chronological order. Read from the bottom up.
Miller continues testimony, explains EPA testing
The U.S. government funneled much of its case through expert witness Aubrey Miller early Tuesday afternoon. The prosecution presented and entered into evidence numerous demonstrative exhibits and studies in which it asked Miller his opinion and how he came to the conclusion that Libby was unsafe and in desperate need of a cleanup.
Miller spoke quietly and slowly, looking at the jury most of the time, as he explained the science behind the testing that the EPA conducted in Libby. He kept a large binder of documents at the stand and read from it when citing examples of test results.
“I’m really trying to make this concept as clear as I can,” Miller said.
That concept is that of asbestos levels in a testing sense. There are several numbers, figures and benchmarks from different entities that conclude what is a safe level of asbestos. For example, the Occupational Safety and Health Administration standards of permissible levels differ from the Environmental Protection Agency standards. At one point, Miller said that even if a testing site results in figures below the permissible level, the area can still be contaminated and dangerous.
One test included simulating Libby residents’ activities and recording the asbestos levels produced by those activities. These simulations included children playing in the dirt and adults raking and adults mowing the lawn. No children were involved with the particular test; rather, EPA workers would sit in the dirt with a plastic shovel and pale and dig around, according to Miller.
The defense objected to nearly every test result chart entered into evidence. Nearly every objection was overruled. But just prior to the afternoon recess, defense attorney David Bernick told Judge Donald Molloy that the afternoon was merely a “document exercise” and that the prosecution nearly presented its entire case through a single witness. Bernick implied that his team needed the rest of the day to prepare to cross examine and figure out who is going to ask which questions.
Molloy agreed with Bernick’s response to the afternoon testimony and asked McLean if he had a lot more exhibits and tests to go over. The government, in fact, had several more documents to go over.
At this point, Miller had stepped down from the stand and an unidentified individual sitting next to his seat in the audience said, “You’re lucky they’re probably not going to cross you today.”
-Kelsey Bernius (posted 11:45 pm)
Posted: March 10th, 2009 under News.
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Miller Gives Ultimate Opinion
Kris McLean finished laying the foundation for Dr. Miller’s ultimate opinion this afternoon by examining Miller on several more studies that he used, in conjunction with his work in Libby, to formulate his opinion.
The first was a Grace study entitled “Cause of Death of 66 Libby Employees.” Over defense relevance objections, the study was admitted (apart from the title page, as was the case with most of the studies) into evidence. Miller explained that the study compared the deaths of 66 of Grace’s Libby employees between 1950-1981 to the average death rate for lung cancer of white males in the United States during that same time period. Libby’s employee lung cancer death rate was almost three times higher than the national average, with 14 men dying from lung cancer during that time, while only 5 died on average. See government exhibit 314.
The next study was another document Miller received from Grace when he arrived in Libby in 1999. It was an x-ray study performed on Grace employees in 1985 that measured total exposure to asbestos, number of years worked, and presence of lung disease. Miller began explaining the significance of the study–that workers who had much lower levels of asbestos exposure than prior studies were still being diagnosed with lung disease–but just as he was getting into the details of the study, Judge Molloy sustained a defense objection of undisclosed expert testimony. See government exhibit 484.
McLean moved on to a community mortality study that showed the people of Libby’s rates of asbestosis to be 40-80 times higher than the national average, their rate of lung cancer to be elevated 30%, and the presence of eight cases of mesothelioma in the Libby area. The mesothelioma rates could not be compared to a standard average because the disease is so rare standardization statistics have not been measured. Miller testified the diagnostic rate for mesothelioma is 1/1,000,000. Miller then attempted to discredit a Grace study which showed lower rates of disease in Libby by pointing out that the Grace study took the worker population out of the Libby statistics, but did not remove the worker population from the general population statistics. Thus, Miller believed the comparisons were inaccurate.
Finally, Miller testified about two studies done by a Dr. Lockey from Ohio in 1984 and 2005. Miller examined these studies because he was seeing a lot of cases of asbestosis in the Libby population, and the studies examined workers at a vermiculite processing facility who were exposed to much lower levels of asbestos than the Grace mill workers. These workers had similar lung diseases to the non-workers in Libby, such as pleural plaques, and Miller testified that the fact that these comparatively low exposures were causing lung disease in the Ohio workers could help explain the growing number of similar diagnoses in Libby.
Lockey performed a follow-up study in 2008. Lockey had followed the diseased workers through 2005, and their rates of lung disease had risen from 2% in 1984 to 28% in 2005. This study also used the lowest asbestos exposure levels ever reported in medical literature, which Miller said was significant because even seemingly small and insignificant exposures to asbestos, such as raking up piles of it or mowing over it, can cause disease in a relatively short period of time. The defense then objected to undisclosed expert testimony and moved to strike. McLean said the testimony had been disclosed, and pointed Judge Molloy to specific pages within the discovery documents. Molloy was unconvinced: he sustained the objection, and struck Miller’s final answer from the record.
Sensing the jury’s fatigue after the long day of detailed expert testimony, McLean prompted Miller for his ultimate opinions. For detail on his opinions, see Josh Benham’s posting. The defense objected to Miller’s opinions under Rules 702 and 703, and defense attorney Krakoff requested a limiting instruction as to Miller’s testimony that the conditions in Libby still pose an imminent danger to its citizens. Molloy instructed Krakoff to draft his instruction and then he will decide whether he will use it to instruct the jury and limit Miller’s testimony.
Katy Furlong (posted at 8:30 p.m.)
Posted: March 10th, 2009 under Law.
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Miller: Libby asbestos still a health risk
Dr. Aubrey K. Miller’s opinion concluded the Tuesday afternoon session of the W.R. Grace trial: Asbestos exposure in the Libby, Mont. “community… pose(d) a clear danger then, and it still does now. It’s an imminent danger.”
Miller’s conclusion came at the end of a long day of testimony by the public health expert witness. Miller considered a multitude of studies and figures, analyzing the correlation between asbestos exposure rates in people and its effect on the human body.
In the late afternoon Miller, a toxicologist and occupational health specialist for the federal government, compared a 1984 study of Ohio workers with vermiculite exposure to Libby workers and residents. Miller said the findings in Ohio were similar to what he discovered in Libby.
Miller explained how both studies incorporated an “estimate of total exposure over time.”
Based on the data, he concluded that even people exposed to extremely low levels of asbestos can develop asbestos-related diseases if that exposure is over a long time. The Libby study showed very high rates of asbestosis and elevations of lung cancer in the area, Miller said.
As the day neared an end, Miller offered another study with, in his mind, pertinent information for the trial. Assistant U.S. attorney Kris McLean stopped him.
“I think we’re tired of asking about studies,” McLean said.
After an objection by the defense was overruled by Judge Donald Molloy, McLean asked the question the government had been building momentum toward all day: Did Miller believe the asbestos levels constituted a health risk?
“The asbestos seen in Libby is clearly hazardous,” Miller said. “It was shown to cause asbestos related diseases in workers … and the community.”
The illnesses “expand a range, and anyone exposed to it has propensity for a disease,” including people with low exposure rates, Miller said.
A critical point Miller emphasized during this part of the testimony was that exposure to asbestos is not easy to care for or prevent. He used the example of a fast-acting acid, which you can see, smell and feel.
“It’s an uncontrolled release, that’s the problem,” Miller said when asked to explain why the danger was ‘imminent.’ “People can interact with it. It’s a cumulative effect, where fibers go in lungs … causing a disease to occur over time.”
When Dr. Miller was finished with his expert opinion Molloy dismissed the witness until 8:30 Wednesday morning, when the cross-examination of Miller by the defense is scheduled to begin.
Molloy also instructed lawyers for W.R. Grace that on Wedensday he will not allow any “tag-teaming” of the witness by the defense. Each lawyer will have to pick out areas to cross-examine and stick to it, the judge cautioned.
–Josh Benham (7:35 P.M.)
Posted: March 10th, 2009 under News.
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Dr. Miller Tells the Jury of Libby’s Past Asbestos Toxicity
Just after lunchtime, Assistant U.S. Attorney Kris McLean continued his direct examination of Dr. Aubrey Miller. Dr. Miller began by discussing several demonstrative exhibits (documents which contain no unique substance of their own, but distill and interpret substantive relevant evidence). These exhibits detail asbestos levels in the air during the EPA work in Libby over the last decade, and summarize the detected amounts of asbestos fibers around the “breathing area” of EPA employees. They also list the number of times that asbestos levels rose above a set “Permissible Exposure Level” (PEL) or a more serious “Short Term Exposure Level” (STEL), contamination levels put forth by the Occupational Safety and Health Administration (OSHA), as guidelines for workers dealing with toxic asbestos. Not having heard all of Dr. Miller’s testimony, I assume the objective danger levels of these OSHA standards contemplate EPA workers wearing protective suits while working in asbestos-laden areas.
Dr. Miller testified regarding several contentious reports, which showed incredibly high ambient asbestos levels during the EPA’s work. Each time Mr. McLean moved the Court to allow Dr. Miller to offer his opinion regarding these exhibits the defense immediately objected. Judge Molloy allowed most in, but pointed out each time that the defense had preserved its objections for the record and that the jury should remember a strongly worded instruction regarding the function of these particular demonstrative exhibits given before the lunchtime break. (See Kirsten Madsen’s post below for details about the judge’s cautionary instructions.)
The exhibits summarized contamination levels at various sites in the Libby area, from former Grace sites such as the extraction plant and the screening plant to more public locations such as the middle and high school sports tracks, all areas apparently once highly toxic. As Dr. Miller’s testimony regarding these demonstrative exhibits wrapped up, Mr. McLean elicited testimony that a permissive exposure level is merely an arbitrary benchmark of a lower and presumably safer level of ambient asbestos, as compared to an short-term exposure level, but that no level is completely safe.
As Dr. Miller’s direct examination testimony continued he summarized a series of tests conducted by the EPA in Libby, all of which were designed to ascertain the contamination levels experienced by the town’s citizens. EPA employees, presumably in full protective suits, engaged in activities such as mowing a lawn for an hour or so, or sitting in a sandbox while playing with a plastic pail and shovel to simulate a child’s activities. Dr. Miller testified that a “thimble-full” of the sandbox material in that test contained millions of asbestos fibers.
As the afternoon break approached, Dr. Miller testified to having reviewed certain relevant epidemiological studies. Both the National Institute on Occupational Safety and Health, or NIOSH, and W.R. Grace, had conducted studies on hamsters and company employees, respectively. Dr. Miller discussed how these studies had helped in his understanding of mesothelioma and other “health effects” related to the asbestos exposures in Libby. Dr. Miller and Mr. McLean discussed a lot of the testamentary foundation for these studies. However, the attorney and his expert never quite got around to discussing the actual substance of the science. As Mr. McLean tried to have one study introduced, the defense put up a series of spirited and reasonable objections. Judge Molloy reserved the right to consider ruling on the admissibility of that study, leading Mr. McLean to move the admission of another exhibit, once again into a barrage of objections.
Judge Molloy sharply informed the jury that it was time for the 3:00 recess and had everyone stand to see the jurors out the door. After the jury left he quizzed the lawyers on their rationale for admission or non-admission of the evidence. Mr. McLean worked out a deal to allow admission of one of the studies he wanted (provided he remove a letter attached to the front of it), but Judge Molloy wouldn’t allow admission of the other exhibit. He felt the document reached beyond the scope of Dr. Miller’s qualifications as an expert witness. Defense counsel David Bernick then stood and moved the Court to call the end of today’s testimony before the beginning of cross-examination. Mr. Bernick informed the Court that Dr. Miller had gone far beyond the narrow focus the defense had expected, and that Mr. Bernick and his colleagues would need the evening to prepare a proper cross-examination. Judge Molloy asked Mr. McLean how much the prosecution had left to ask Dr. Miller on direct, and appeared satisfied that those questions would take a sufficient amount of time to prevent defense counsel from having to make a hasty cross-examination. Another defense attorney, whose name I unfortunately missed, then rose and made a passionate argument as to the impropriety of the prosecution’s use of Dr. Miller’s testimony. He argued that the prosecution had used Dr. Miller to sneak evidence in the “back door,” evidence the prosecution could not otherwise use. After listening to these arguments, Judge Molloy called for a ten minute recess to consider how to proceed.
– Mark Lancaster (7:30 p.m.)
Posted: March 10th, 2009 under Law.
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Documents underlying Dr. Miller’s opinion subject to limited use
Kris McLean continued his direct examination of Dr. Miller after the mid-morning break, laying the foundation for Dr. Miller’s expert opinion. See also Motion in Limine and Arguments on March 9, 2009.
Judge Molloy issued multiple “cautionary” instructions to the jury regarding the documents underlying the opinion of Dr. Aubrey Miller. Defense objections concerned the issue of vermiculite’s propensity to release asbestos and specifically, that the documents be considered for no other reason. Judge Molloy seemed to agree with these objections, frequently giving his cautionary instruction: take particular note of the date, these documents are “long before any activity suggest to be illegal” and go only to the nature of the material and its propensity to release asbestos into the air.
Following another objection, Molloy admonished the jury that the documents “only relate[] to fibers at issue and Defendants’ knowledge,” and that they are not evidence of release or endangerment, nor do they concern releases after November 3, 1999. He issued a version of this cautionary instruction nine other times, reminding the jury the documents go only to the propensity to release, and not the concentration; to pay attention to the dates, as the Clean Air Act was not enacted until 1990; that the document has the limited purpose of establishing the foundation of the expert’s opinion, and can address ambient releases only; and that the documents have only limited relevance in that a violation of OSHA standards is not a criminal violation.
Those cautionary instructions aside, McLean successfully and methodically discussed the series of documents relied upon by Dr. Miller. For each exhibit, McLean asked Dr. Miller if the exhibit was a record from W.R. Grace, if Dr. Miller relied on and used the document, what made the document important, and how the information informed his expert opinion. The jury viewed exhibits regarding controlled air drop sampling (Government Exhibits 40, 48), simulated attic release tests and transfer tests (Government Exhibits 310, 24A), tests on “clean” asbestos (Government Exhibit 239A), sampling of end-user customer uses (Government Exhibits 151 (refused), 153), and tests regarding engineering controls (Government Exhibits 154 (refused), 191, 192). McLean and Dr. Miller also went through exhibits regarding internal salting tests (Government Exhibit 70), discussing controlled sampling where a known quantity of asbestos is added to “clean” material, the material is then disturbed, and sampling follows.
Numerous other exhibits were offered to show the jury what Dr. Miller relied on to form the opinion he will, presumably, give this afternoon. Although McLean has not yet specifically asked Dr. Miller to give his expert opinion, Dr. Miller continually declared that the documents showed that vermiculite has a strong propensity to release, and that the releases were in high concentrations, even from small amounts of vermiculite. Dr. Miller testified that asbestos was released easily, spread quickly through the air, and lingered even after dust had settled. Judge Molloy struck, however, Dr. Miller’s characterization of the release tests as “astounding.”
As to the demonstrative exhibits prepared by Dr. Miller, Judge Molloy explained they are not evidence, and will not go with the jury into deliberations—they are only to assist Dr. Miller in explaining his testimony. Dr. Miller’s testimony is the evidence, not the exhibits. McLean first offered Government Exhibit 811. This document summarizes samples taken inside the long shed at the screening plant while a worker was sweeping dry dust. Defense counsel lodged several objections so rapidly, that I missed not only the first one, but also which attorney made them. The gist of the objections was that the date of the documents is important (specific to Government Exhibit 811, 6/15/00), the relevance may be limited (as to 811, that the samples were taken after the Parkers had begun clean-up), and the documents raise issues under the Confrontation Clause of the U.S. Constitution. Judge Molloy took the objections under advisement, acknowledging they would be applied to the entire series of demonstrative exhibits offered by the government.
After giving a brief lesson in the difference between an “old” microscope (PCM, or phase contrast microscope) and the newer microscopes (TEM, or transmission electron microscope), Dr. Miller explained how to compare data from the recent tests to data from old tests. The science talk seemed to intrigue some jurors, while others stared elsewhere. Dr. Miller expounded on a few more acronyms on the demonstrative exhibits and the jury was dismissed.
Judge Molloy recessed court for lunch until 1:15 p.m. and heard argument in chambers. Unfortunately, neither the Judge nor counsel spoke near enough to a microphone to hear what the subject of in chambers argument would concern. –Kirsten Madsen
Posted: March 10th, 2009 under Law.
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Direct Testimony of Expert Witness Dr. Aubrey K. Miller, March 10, 2009
Despite defense counsel’s objections aiming to limit Dr. Miller’s expert testimony, the government was able to conduct direct examination and admit some photographs into evidence.
Captain Aubrey K. Miller, MD, MPH, a physician in the U.S. Public Health Service and a Senior Medical Officer and Toxicologist for the U.S. Environmental Protection Agency (EPA), Region 8 Office, qualified as an expert and testified this morning for the government.
Dr. Miller testified that the discovery of asbestos-related diseases in non-workers was highly significant because to his knowledge, as of 1999-2000, there had been no prior reported cases of non-workers contracting or dying from an asbestos-related disease.
In November of 1999, Dr. Miller traveled to Libby to investigate the asbestos problem. He took photos, admitted as exhibits 752, 760, 761, and 779. He traveled to Spokane to speak with Dr. Whitehouse, who had examined several Libby patients. Non-worker asbestos disease statistics prompted Dr. Miller to set up an office in Libby to provide medical screening and further investigation. He wanted to document the prevalence in health effects and abnormalities, do a mortality study, and figure out the exposure pathway. After research, Dr. Miller concluded that the asbestos was airborne, and that the exposure pathway was through the ambient air.
Bases for Dr. Miller’s opinion included literature with respect to asbestosis, meetings with experts around the United States, information and testing available to W.R. Grace, and medical studies with regard to W.R. Grace.
Defense counsel made several objections today including Fed. R. Evid. 403, Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time, Fed. R. 803, Hearsay, Fed. R. Evid. 402, Irrelevant Evidence, Fed. R. Evid. 702, Testimony by Experts, and Fed. R. Evid. 703, Bases of Opinion by Experts. Although some objections were sustained, the government was usually able to rephrase the question. There were no objections sustained that resulted in any major upset for the government, up to 10:00 a.m. when recess was called.
– Noelle Harrison
Posted: March 10th, 2009 under Law.
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Miller’s testimony continues through objections
Dressed smartly in a naval uniform, bespectacled toxicologist Aubrey Miller explained the nature and dangers of vermiculite asbestos to the jury in his testimony late Tuesday morning.
Using Grace documents, most dated prior to 1990, the year the Clean Air Act was amended to criminalize key allegations in this case, Miller explained how the company tested or vermiculite asbestos and gave his opinion on the results of those tests.
Miller explained “time-weighted averages,” or the amount of asbestos a Grace worker was exposed to in a typical eight-hour shift. He found that, according to the Grace documents on hand, some of the results showed that workers were exposed to dangerous levels of asbestos. The documents also pointed to tests showing high levels of asbestos in attic insulation and in the “time-weighted averages” of consumers of the company’s vermiculite.
Grace tested attempts to control the amount of asbestos fiber released but found that they ultimately failed, according to Miller and two Grace documents dated prior to 1990.
Miller’s testimony came with a slew of objections from the defense, most of which dealt with relevance and the time limits on evidence. This caused Judge Donald Molloy to repeatedly remind the jury that, because of the 1999 statute of limitations, none of the found asbestos levels were “illegal” at the time.
At one point, one defense attorney attempted to explain her objection to a proposed government exhibit. Molloy, who has made clear he wants objections to be filed succinctly by reference to the legal grounds for the objection, interrupted her, saying, “don’t give me a speech, just tell me what your objection is.”
Defense attorney David Bernick remained quiet throughout the proceedings leaving the objections to a second Grace attorney who lodged more than fifteen objections in the span of two hours.
- Nate Hegyi (posted at 1:46 p.m)
Posted: March 10th, 2009 under News.
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Government begins direct examination of expert witness
Toxicologist Aubrey Miller took the witness stand Tuesday as the government continued to build the core of its case against W.R. Grace and the five executives and supervisors on trial. A juror whose illness Monday delayed the trial was back in the jury box on Tuesday.
Miller, a toxicologist and occupational health specialist for the federal government, focused on building an understanding about asbestos and asbestos-related diseases. Miller discussed several factors that determine if an individual is likely to contract an asbestos-related disease.
“One factor is the time you get exposed. The earlier you’re exposed, the longer you have to exhibit the disease,” Miller said. “Asbestos fibers, when they get into your lungs, they don’t dissipate. As you keep breathing in asbestos, your dose goes up. The fibers are scarring the lungs. That’s called asbestosis. As exposures increase, you begin to show signs of it,” he said.
In November 1999, Miller, along with Dr. Christopher Weis, responded to articles in the Seattle Post-Intelligencer about asbestos contamination in Libby. While in Libby, Miller said he, Weis and Paul Peronard, the EPA’s on-scene coordinator, spoke with local officials to assess the situation
Miller said he was surprised at what he saw. He had seen a lot of cases of asbestos disease before and anticipated that the newspaper reporter had exaggerated.
“It was hard to imagine this disease so widespread outside the workplace,” Miller said.
Miller’s focus, while in Libby on his initial visit, was to examine the public health in the community to see if the claims about non-occupational illness were true. While in Libby, Miller said he met with Gayla Benefield and spoke with her about her mother Margaret Vatland. Miller said he took an interest in this case because Vatland was not a worker.
“To see someone who had died of asbestos related disease who was not a worker was unheard of,” Miller said.
Miller said he also had the opportunity to tour Libby and visit the mine site, lumber mill and the screening plant during his visit.
–Kalie Tenenbaum, 10:55 a.m.
Posted: March 10th, 2009 under News.
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