March 4, 2009
Day 10 of coverage of the trial: All blog posts filed Wednesday, March 4, 2009, are duplicated here in reverse chronological order. Read from the bottom up.
Dr. Whitehouse concludes testimony as expert witness
The testimony of Spokane pulmonologist Dr. Alan Whitehouse resumed, after an early afternoon recess, with a vigorous cross-examination by defense attorney David Bernick.
Bernick began by discussing the “publicity” surrounding the 1999 Seattle Post-Intelligencer articles and the flow of patients into Whitehouse’s office. Whitehouse testified that over 50 percent of the roughly 1,800 people he saw had no connection to the mine itself.
Speaking to an exhausted looking jury, Bernick displayed several exhibits to be admitted as evidence – all of which were. Among them were documents from Whitehouse and other doctors regarding the diagnoses of patients, including Mel Parker, Lerah Parker and Wendy Challinor.
With each piece of evidence, Bernick compared Whitehouse’s differing medical opinion with those of other pulmonologists and radiologists who also looked at each patient. Assuring Whitehouse that he wasn’t calling into question his professional opinion, Bernick pointed out that “reasonable minds can come to different conclusions about how to read the CT scans.”
Often growing frustrated with the wording of Bernick’s questions, Whitehouse responded by saying that he takes into account many more factors when diagnosing than do radiologists. “The radiologist’s read the films …you’re trying to make these guys out to be diagnosticians,” he said.
Bernick also questioned Whitehouse on a number of definitions, including asbestosis – “asbestos-induced pulmonary parenchymal fibrosis, with or without plural thickening.”
Following Bernick’s forceful cross-examination, prosecutor Kris McLean began his redirect examination of Whitehouse. However, the barrage of objections on the grounds of foundation and relevance from the defense seemed to leave the jury completely confused.
During the redirect, Whitehouse again testified about the major difference in diagnostic procedures between pulmonologists and radiologists. Radiologists do not sit down and put their hands on patients as he does during his diagnosis, Whitehouse said.
Just before McLean finished his questioning he brought to Molloy’s attention an elderly juror who was coughing profusely and seemed to be choking on something. The juror assured Molloy that he was fine.
Molloy concluded the day by reminding the jury not to discuss the case, read or watch any news, do any individual research, or to make up their mind about what the verdict should be until they’ve heard all the evidence. “Keep an open mind until then,” he said.
Court will be in recess until 9 a.m. Monday morning. Court will be in session four days a week for the next three weeks.
– Chris D’Angelo (posted 8:05 p.m.
Contempt Hearing for No-Show Jurors
As testimony continued in Judge Molloy’s courtroom this afternoon, another Grace-related hearing occurred in the magistrate’s courtroom on the first floor of the federal courthouse. Due to an unusually high number of no-show jurors at the Grace trial voir dire on February 19, Judge Molloy asked Federal Magistrate Keith Strong to visit from Great Falls to hold a contempt “show cause” hearing. Failure to show up for jury duty constitutes contempt of court; five members of the Grace trial jury pool did not appear on February 19. Because these contemptuous acts occurred outside of the view of Judge Molloy, each absentee juror was ordered to show the Court either why they were not in contempt, or alternatively, to give evidence that would mitigate the Court’s punishment. An assistant United States attorney and a few lawyers from the Federal Defender’s Office were also present.
Judge Strong began by summarizing every citizen’s duty to serve on juries, and explained that federal courts are required by law to hold such contempt hearings. He then informed everyone present that failure to appear for jury duty can result in a fine of up to $1,000, three days in jail, and community service. He pointed out that every juror who ended up on the final jury had made a significant time sacrifice, a sacrifice these defendants had failed to make. Judge Strong said that although his court in Great Falls pulls jurors from as far away as 400 miles — the farthest of any district in the country — no one has ever failed to appear jury duty in his two years on the bench. He emphasized the rarity of dealing with five absentee jurors. He then apprised the defendants that they had all the rights of a criminal defendant, including the right to counsel and a jury trial, although they could each elect to “take care of it today.”
Of the five absentee jurors, Judge Strong found the contempt of the first three to have been “not willful” and fined each $100. Two of these slept late and immediately called the court on the morning of the 19th, while another testified about the difficulties in delivering mail to her rural address. He admonished them that their conduct was wrong, and confirmed with each that they would not make such a mistake again.
The fourth defendant had moved since receiving the initial summons, and failed to change her address. Judge Strong found that, while her contempt was not willful, the court had mailed the specifics of her jury duty to the exact address she provided, and her failure to receive that notice rested solely on her shoulders. Therefore, her punishment was a $200 fine, due to the more egregious nature of her contempt.
The fifth defendant presented a situation unique to the experience of the court or the attorneys in the room. This absentee juror is solely responsible for the care of her 93-year-old mother, and felt that she had no choice but to ignore her summons. Upon receipt of her first summons, she sent a letter to the court explaining her situation and her beleif that she should not have to appear for jury duty. The clerk of court’s office made a phone call and sent a letter, informing the defendant that she would still have to appear, regardless of her other obligations. She testified to having sent another letter to the court, to which she received no response, and to “hoping it was taken care of.”
This greatly vexed Judge Strong. While the defendant clearly felt she had no choice but to ignore the summons, she remained resolute in her willful and remorseless contempt of court. Judge Strong informed the defendant of the “troublesome” nature of her testimony, given that she had essentially carved out her own private exception to a federal court’s order. Judge Strong reminded her that jurors do not serve only when convenient. He went on to explain that the American judicial system rests on the idea that juries consist of a cross-section of society, and it functions for that very reason.
Furthermore, he pointed out, every potential juror that had attended on February 19 had personal obligations just as she did. Were all citizens to find their own ways out of jury duty, the American judicial system would not function.
In an obvious effort to allow the defendant to salvage her credibility, Judge Strong asked her if she would miss jury duty in the future, to which she replied that would “consider doing it again” if her mother’s health required it. An exasperated Judge Strong pointed out that the defendant had been able to attend today, so her theory that she had to be with her mother at all times was not credible. At this point he appeared ready to impose a sentence fit to punish a willful and contrary contemnor, but stopped to ask the U.S. attorney for his recommendations. The U.S. attorney stated that the defendant was perhaps confused as to the nature of her jury duty on February 19, and had perhaps erroneously thought appearing on February 19 would have resulted in her immediate sequestration for several months. The U.S. attorney thought that such a misapprehension should mitigate her punishment. Judge Strong commended the U.S. attorney’s interest that “justice be done,” acknowledging that the U.S. attorney had just made a compelling argument for the defendant–another unique occurrence. Judge Strong then stated that, based on the government’s recommendation, the defendant would be fined $250, a substantially smaller amount than he had originally considered.
After determining there was no other business, Judge Strong adjourned the hearing.
-Mark Lancaster
Posted: March 4th, 2009 under Law.
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Lerah Parker Takes the Stand
The government called Lerah Parker to the stand with Kris McLean conducting the direct examination. McLean started by asking about the Parkers’ nursery business and how they came to buy the screening plant from Grace for their nursery. He asked Lerah to explain how the Parkers used the different parts of the property in their business. Lerah showed the greenhouses, herb beds and long shed on an aerial photo (exhibit 785 previously admitted) and reported that the long shed was used to store nursery equipment as well as over 100 RVs and vehicles as a side business.
McLean tried to introduce a number of photographs into evidence, largely unsuccessfully. The defense objections were based primarily on Federal Rules of Evidence 401 and 403 as well as the fact that the photos were outside the time period of the litigation. After five failed attempts to admit photos of the Parker grandchildren, McLean moved on to the dust problems the Parkers experienced from Rainy Creek Road. Lerah testified that the long shed was always dusty from the wind blowing dust around or from logging trucks coming down Rainy Creek Road and that she would clean it out with big push brooms while a wearing white cotton mask. One photo of road dust taken by Lerah in 1997 or 1998 was not admitted (proposed exhibit 734), but a second one taken on April 25, 2000 was. Exhibit 735. Lerah reported taking this photo to try to get the county commissioners to do some kind of dust abatement.
McLean then began asking Lerah when and how the Parkers learned that their property had hazardous materials. One exhibit, a letter from Alan Stringer dated March 2, 2000 (admitted as exhibit 629B) gave the Judge some pause. The defense objected to it as irrelevant and on 403 grounds. Judge Molloy paused for quite some time, mulling it over before finally overruling the objection and admitting the letter, which said in highlighted part:
“I knew that there was a health problem associated with exposure to asbestos for both employees and their families when the mine and mill were operating.”
The defense unsuccessfully objected to another letter from W.R. Grace to the Montana Department of Mines dated November 22, 1992 and signed by Alan Stringer. The objections were based on foundation, incompleteness and hearsay. Nonetheless, the letter was admitted in its entirety, and said in pertinent part:
“Average exposure at Highway 37 was the highest of all the sampling points . . . .”
This letter led Lerah to ask Stringer over coffee if he knew of the dangers when he sold the property to the Parkers. For more on this, see Laura L. Lundquist’s post of 4:00 pm.
After cross examination by Jack Wolter’s attorney and a very short redirect by McLean, Lerah Parker was dismissed from her subpoena by the Judge. McLean next called Dr. Alan Whitehouse to the stand and began laying his foundation as an expert witness before the lunch recess was called.
Photo evidence successfully admitted:
Eexhibit 801: taken by Lerah of the tunnels under the property used by the Parkers to grow mushrooms. The photo showed numerous 4 gallon buckets of vermiculite filled by the Parkers, according to Lerah’s testimony. Additional vermiculite was shown lying on the ground all around the tunnel entrance. The photo was objected to on the grounds of FRE 401 and 403 as well as “prior ruling,” but Judge Molloy overruled and admitted the exhibit.
Exhibit 738: a collage of 4 photos taken by Lerah sometime after 2000 to show the EPA what was left on the property. The photo showed piles of raw vermiculite reported by Lerah to be 30 feet by 8 feet and 9 feet tall. McLean asked Lerah to point out where the vermiculite was in each photo.
Exhibit 735 shows a cloud of dust above Rainy Creek Road just after a red truck drove up the road. This was taken by Lerah in 2000 to convince the commissioners to do dust abatement.
Photo evidence not admitted:
Pictures of the Parkers’ grandchildren sitting or playing on the ground of their property with vermiculite lying or scattered around, and photos of dust coming off Rainy Creek Road toward the Parkers’ property. Lerah said the photos were taken between 1994 and 1998. The defense objected to each of them on grounds of FRE 401 and 403 and because they were taken outside the time period being covered by this trial. By the third photo, defense attorney Carolyn Kubota objected to Lerah describing the contents of the photos (my granddaughter playing on the ground surrounded by vermiculite rocks) before they were properly admitted. This objection was sustained and McLean proceeded more carefully in trying to authenticate the photos for admittance as evidence. The problem here is that through the verbal description of what was in the photos and Lerah’s obvious emotional reaction to them, the jury was getting a mental image of a piece of evidence that was not going to be admitted into evidence for reasons of relevance, unfair prejudice or for being outside the time frame of the litigation. McLean was getting half if not all of what he hoped to show the jury, even with sustained objections.
–Janet Harrison (5:00 pm)
Posted: March 4th, 2009 under Law.
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Pulmonologist testimony continues
The testimony of Dr. Alan Whitehouse, a pulmonologist from Spokane who brought attention to the abnormally high rates of asbestos related disease in Libby, continued this afternoon as Whitehouse was questioned by the prosecutor, Kris McLean.
Whitehouse was admitted as an expert witness, and so was allowed to testify about the medical implications of exposure to asbestos, which he described as microscopic needles that “when inhaled… actually penetrate the wall of the air sacs and then penetrate to the outer chest wall in time.” Specific conditions discussed by Whitehouse included fluid in the lung, the scarring of lung tissue, and plaques on the pleural lining of the lung.
Whitehouse described the significance of these plaques, commonly observed in people with nascent asbestos related disease, saying “you need to think about plaque as the initial stage of a progression that leads to severe interstitial disease and then death.”
He described the progressive thickening of the pleural lining as making the lung behave “more like an orange peel than a balloon,” limiting a patient’s ability to exhale. “Basically it’s like having someone tie a strap around your chest,” Whitehouse said.
McLean asked Whitehouse to describe the progression of asbestos related disease in specific cases from Libby. These included a woman, diagnosed with mesothelioma, who lived outside of town and whose only exposure to asbestos was when she would come into Libby one or two times a week to shop. Whitehouse also described the case of a patient who worked at a chiropractor’s office in Libby and was exposed to dust from the work clothes of Grace employees. She developed mesothelioma as well.
Finally, Whitehouse testified to the rarity of mesothelioma, a form of cancer specifically associated with asbestos exposure that he described as generally fatal.
“In Libby we have the highest mesothelioma rate in the nation,” Whitehouse said, “and its strictly due to how much asbestos is floating around.”
McLean’s last question, answered by Whitehouse over the objections of defense counsel David Bernick, concerned the future of the asbestos related disease epidemic in Libby.
“I don’t think we’ll see the last of this prior to twenty, thirty years from now,” Whitehouse said.
Cross-examination of Whitehouse by the defense will commence after an early afternoon break.
–Daniel Doherty
Posted: March 4th, 2009 under News.
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Prosecution Wraps up Direct Exam of Dr. Whitehouse
After the lunch break, Dr. Alan Whitehouse resumed his direct examination, answering questions from Assistant United States Attorney Kris McLean. Initially, Dr. Whitehouse took the jury through a biology lesson, explaining the functioning of the lung and the progression of asbestos-related diseases. According to Dr. Whitehouse, exposure to asbestos is akin to “inhaling a needle.” The needle creates inflammation that can lead to pleural plaques, which may progress until the death of the patient. Dr. Whitehouse described pleural plaques as scarring on the lining of the lung.The government appeared to be using Dr. Whitehouse’s testimony to bolster its allegations that WR Grace and the individual defendants violated the Clean Air Act. Dr. Whitehouse’s testimony appeared relevant in two ways. First, the government needs to prove that the defendants knew that asbestos posed an “imminent danger of death or serious bodily injury.” Dr. Whitehouse testified that exposure to asbestos can creates asbestos-related diseases, including cancers (lung, bowel, mesothelioma) and pleural diseases (plaques, thickening, effusions, asbestosis). He testified that the body cannot rid itself of asbestos and that the disease is progressive. He described it as a continuum that begins with pleural plaque and ends with death.
The government also has to prove that the defendants knowingly released asbestos after the statute of limitations date of November 3, 1999. Kris McLean spent a significant amount of time this afternoon leading Dr. Whitehouse through his diagnosis of several patients with asbestos-related diseases. Dr. Whitehouse testified about four specific patients that he diagnosed as having asbestos-related diseases: Mrs. and Mrs. Parker, Mel Burnett, and Wendy Challinor. Each of these individuals became his patient after 2000 and was diagnosed between 2001 and 2007. Of particular importance, Dr. Whitehouse testified that he first diagnosed Mrs. Parker as having an asbestos-related disease in 2005 and Mr. Parker in 2007. Dr. Whitehouse testified that he saw Mrs. Parker six-to-eight weeks ago and she had a new pleural plaque.
Mr. and Mrs. Parker were in the courtroom during this testimony and watched Dr. Whitehouse show the jury the Parkers’ chest x-rays. Both Mr. and Mrs. Parker became emotional during this testimony, especially when Dr. Whitehouse testified about his observations of the progression of asbestos-related disease from pleural plaque to death.
– Andrew King-Ries (posted 3:40 p.m.)
Posted: March 4th, 2009 under Law.
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Lerah Parker’s testimony smoother than that of her husband
The questioning of Lerah Parker took up the remainder of the morning’s session, with just a glimpse of testimony yet to come from Dr. Alan Whitehouse. Parker’s questioning went much more smoothly than that of her husband, with few objections from the defense.
Parker entered the courtroom for her testimony with some obvious trepidation. A petite woman with graying dark hair and librarian’s glasses, she seemed unsure as she settled into the witness chair. Her initial responses were somewhat hard to hear and she was asked to lean into the microphone. But as her testimony progressed, her resolution appeared to overcome her uncertainty.
At the prosecution’s request, she told her story. She had moved to Libby in 1980 and worked at the sawmill for a bit but was often laid off. She worked for the St. Regis nursery, and when given the chance, purchased the nursery with Mel Parker. They did well and eventually needed to expand. One night, at a social event, she happened to meet Alan Stringer, general manager of the Libby mine. During casual conversation, Stringer learned the Parkers wanted to expand their nursery and offered to sell them land owned by Grace. This was the pivotal moment that Lerah said changed the Parkers’ life was forever.
Soon the Parkers drove up to the property with Stringer. Eventually Striner and the Parkers developed a friendship. They initially chose the property adjacent to the screening plant, figuring the screening plant site would be too expensive. But there were many attractive amenities with the screening plant. The Parkers were shocked with the relatively low asking price and Parker said they couldn’t pass it up. They moved onto the property in 1993 and relocated their business.
During this story, the jury was shown some exhibits but it wasn’t until the prosecution started showing pictures taken by Parker that the defense came to life. The prosecution brought six photographs forward. All six showed Parker’s children and grandchildren playing in the yard and in the vermiculite speckled dirt around the family home. Asked to describe the photos, Parker’s voice cracked as she identified her 2-year-old granddaughter happily sitting amid tulips in dirt studded with vermiculite. Although each photograph was described for the jury, the defense objected to actually showing the jury because the photos were taken before the time being investigated by the trial.
A photo that the jury was allowed to see was taken in 2000 from the Parkers’ porch. It showed a billowing dust cloud kicked up by a truck rumbling past on Highway 37, coming down from the mine. Parker’s anger was evident when she said she took it after hearing about the asbestos danger because “I thought there should be some way to control the dust. ”
“Dust happened all the time,” she said.
She learned about the asbestos problem from the Seattle Post-Intelligencer articles in 1999. Parker recalled her confusion in quiet anger from the stand. “I just couldn’t believe it.” She met with Stringer soon after, but he told her it was just people in town talking. “Gayla was shooting off her mouth,” she remembered Stringer telling her, referring to Gayla Benefield, a Libby resident who would come to lead a local fight to hold Grace accountable for the Libby contamination. Still, Lerha said, shortly after that conversation the Parkers received an offer from Grace to clean up the property.
In March, 2000, the Parkers received a check for $40,000. Parker’s emotion rose again as she talked about the money and she had to stop at one point for a coughing spell.
“I didn’t cash it until the last meeting (in April). I didn’t want the money; I just wanted out of the problem.”
She said part of the reason she didn’t cash the check was a feeling of betrayal. Mike Crill, a Libby resident and vocal Grace critic, had given her a 1992 letter from Grace that explained, “Average exposure (to asbestos fibers) on Highway 37 was the highest of all the sampling points.”
Shocked, she said she asked for a meeting with Stringer. Her voice shaking, she said she asked, “As my friend, when selling us this property, did you know this was going to happen to us?” She said Stringer just set down his coffee and left.
Only one defense lawyer questioned Parker. That was to point out that the letter the Parkers had received from Jack Wolter announcing the availability of the Grace property was obviously a form letter.
Parker was released as a witness and greeted her pulminologist, Dr. Alan Whitehouse as he moved to take the stand. After some initial questioning from the prosecution about his history, Judge Donold Molloy interrupted so the court could recess until the afternoon.
- Laura L. Lundquist (posted 4:00 p.m.)
Posted: March 4th, 2009 under News.
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Bernick’s cross-examination of Whitehouse
Good afternoon. Reporter Chris D’Angelo is in the courtroom. David Bernick proceeds with the defense’s cross-examination of Dr. Alan Whitehouse.
Posted: March 4th, 2009 under News.
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Parker fends off defense accusations
The start of Day Nine of the W.R. Grace trial saw the conclusion of Mel Parker’s testimony, followed by that of his wife, Lerah. Dr. Alan Whitehouse was called to the stand for enough time to recount his personal history before the court recessed.
Parker’s testimony on Wednesday went more smoothly than Tuesday’s somewhat rocky session. On Tuesday, the defense repeatedly objected to parts of his answers. There were fewer objections on Wednesday. Parker appeared rejuvenated and was a somewhat terse but well-spoken witness. The defense was trying to show that Parker knew full well what he was getting into when he bought the property formerly owned by Grace; to demonstrate he was not just an innocent victim. The evidence included a couple of newspaper clippings about the propert from around 1990 but Parker denied having seen them. The defense tried to destroy Parker’s credibility by saying Parker had been informed as early as 1992 of the contamination because of a letter delivered by Libby resident Mike Crill. Parker denied receiving the letter, saying they weren’t in Libby at the time.
The defense went further, trying to insinuate that Parker bought the property with full knowledge of the asbestos contamination because he knew he could make some money from it. The defense showed proposals Parker was offered by the EPA and by Grace, both of which promised money for cleanup and reimbursement.
Grace initially came to the Parkers after the story of Libby’s contamination became well known in 1999. The company offered them first $1.2 million, then later $2 million. The Parkers rejected both offers and suggested $10 million would be more appropriate. The prosecution countered with questions and Parker explained that if that sum appeared greedy, it was not. He and his wife had proposed such an outrageous sum because they wanted to show how ridiculous it was to think any amount of money could make up for what they’ve lost, he said.
“And that’s it – that’s the bottom line,” Parker said.
Parker’s nursery was the largest in the region before they found out about the contamination. The prosecution showed a photo of the nursery before the EPA clean-up and asked Parker what was left now.
Parker’s voice rose and shook a little as he said, “Sir, everything you see in this picture is gone.
“I was 62 years old then and I don’t have the wherewithal to begin again.”
Just as Parker was becoming more impassioned, Judge Donold Molloy sustained an objection of relevance and the prosecution moved on.
The prosecution continued to down play the issues brought up by the defense, particularly with respect to Parker’s credibility. Parker was allowed to say that he wasn’t testifying to anything different than he has before in any case or deposition. It was often difficult to read the documents on the monitors because an entire blurry page would be projected. Parker had trouble identifying some documents and his squinting was often mirrored by that of the jury. In general, the prosecution focused tightly on the critical parts of the document for people, including jurors, the witness and the gallery. Over and over, the prosecution would project the documents used to discredit Parker and say, “Do you see any statement about the dangers of asbestos?” Parker consistently answered “No.”
Mel Parker was finally released, and his wife Lerah was asked to come in. They met as Lerah came through the gallery and stopped to hug each other for a moment. In the arms of his wife, his ordeal over, Parker teared up a bit, a change from the tough exterior he had projected on the witness stand.
- Laura Lundquist (posted 2:55 p.m. Edited 5:30)
Posted: March 4th, 2009 under News.
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Questioning of Dr. Alan Whitehouse to continue
Good afternoon. Reporter Daniel Doherty will continue coverage of testimony by Dr. Alan Whitehouse.
Posted: March 4th, 2009 under News.
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Cross Examination of Mel Parker Concludes
The cross-examination of Mel Parker by defense attorney Frongillo continued this morning. Mr. Frongillo focused on whether Mr. Parker had knowledge that the property he purchased from Grace was contaminated with asbestos prior to November 1999. Mr. Frongillo attempted to admit two newspaper articles into evidence (defense proposed exhibits 5017 and 5020). The first newspaper article was from The Daily Inter Lake and was published May 3rd, 1990 with the headline “Grace Mine Closing; 90 to Lose Jobs.” The second article was from The Western News. The prosecution objected to both articles on grounds of foundation and both objections were sustained by Judge Molloy. Thus, neither of the articles was admitted into evidence.
Mr. Frongillo next focused on an agreement between the Parkers and EPA entitled “Reimbursement Agreement” (defense exhibit 5622). This contractual agreement provided that the Parkers certified the property was purchased with no knowledge of asbestos contamination and they would be paid $546,420.91 by EPA. The agreement was admitted into evidence over a relevance objection by the prosecution. Mr. Frongillo elicited from Mr. Parker that he was paid an additional $840,000 by EPA and that in total EPA paid the Parkers approximately $1.5 million. Mr. Frongillo suggested that to obtain these payments EPA required the Parkers have no knowledge their property was contaminated at the time of purchase. Mr. Frongillo’s line of questioning seemed to be an effort to show the Parkers had a financial interest in testifying that they had no knowledge their property was contaminated. Read more »
Posted: March 4th, 2009 under Law.
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Day 9 – Parker’s testimony continues
Good morning. Reporter Laura Lundquist will cover continued cross examination of Mel Parker by the defense.