March 5, 2009
Day 11: A compilation of posts for March 5. Read from the bottom up.
Week 3: Four witnesses finish testifying
A stunted three-day court week saw the wrap up of expert witness testimonies from Paul Peronard, the EPA on-site cleanup coordinator in Libby, and Dr. Alan Whitehouse, a pulmonologist from Spokane, Wash., who brought attention to the high incidence of asbestos-related disease in Libby. Melvin and Lerah Parker, business owners who had purchased property from Grace that was used for Libby’s vermiculite screening plant, also finished their testimonies.
The week started with Judge Donald Molloy calling Monday “a waste of a day” that was perhaps the climax of a victim-witness controversy that has bedeviled the trial. Molloy dismissed the jury Monday saying he wanted to follow orders from the Ninth Circuit Court of Appeals to question victim-witnesses to determine if they could sit in court before their testimonies. However, the appeal backfired for the prosecution as none of the remaining 26 victim witnesses were able to come to Missoula on such short notice. The result scrambled the government’s lineup. Molloy ordered the government to put Mel and Lerah Parker on the witness stand immediately instead of holding them until the finale, as planned. The Parkers’ attorney had filed the victim-witness appeal and the completion of their obligations as witnesses will allow them in the court as spectators.
Peronard finished the final leg of his testimony Tuesday with continued objections from the defense. His expert testimony was limited by the court, and he focused mostly on the EPA’s actions in Libby and Grace’s role in halting the organization’s cleanup efforts. He wasn’t permitted to talk about the possible health implications of asbestos, or bring up information such as data derived from soil samples.
Following Peronard, Melvin Parker testified as a witness. Parker said, “No one told us there were dangers” with the property they purchased in 1992. The defense voiced volleys of objections throughout his testimony, and argued that Parker tried to pretend he was unaware of contamination problems so he could collect money for clean up from Grace and the EPA.
Lerah Parker was called to the stand after her husband finished Wednesday morning, and her testimony was met with fewer objections. After learning of the asbestos contamination in 1999, she said she was informed by a friend that Grace knew about the problem when they bought the property. When she later asked Alan Stringer, the general manager of the Libby mine who sold her the land, if he knew about the health risks when he sold it to them, she said he just set down his coffee and left. Many photos of vermiculite on their property were also introduced as evidence, though others that showed children playing in the dirt-vermiculite blend drew objections and were not allowed.
Testimony from expert witness Whitehouse capped the week. He discussed the progression of asbestos-related disease in specific patients from Libby, and gave the jury a general overview of what asbestos fibers do to the lungs.
“In Libby we have the highest mesothelioma rate in the nation” due to asbestos, Whitehouse said. “I don’t think we’ll see the last of this prior to twenty, thirty years from now.” The defense countered by admitting documents into evidence that cited different medical opinions from other doctors that had examined some of the same patients.
Court will be in recess until 9 a.m. Monday. The court schedule calls for court to be in session four days a week for the next three weeks.
– Carmen George (posted 1:31 a.m.)
Posted: March 5th, 2009 under News.
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Bernick ends cross of Whitehouse, McLean Redirects
On Wednesday afternoon, the Court ended for the week with a cross examination of Dr. David Whitehouse by David Bernick, followed by a brief re-direct from Kris McLean. Throughout the cross-examination, Grace tried to poke holes in Whitehouse’s direct testimony in several areas, including: his opinion of community exposures caused to Libby residents independent of occupational asbestos exposure; differences between Whitehouse’s diagnoses and those of other radiologists who also looked at specific x-rays, and; differences between Whitehouse’s testimony and an epidemiological study done by ATSDR which did not find a significant increase in “community exposures” in Libby when the miners weren’t considered.
A large, and controversial, part of Whitehouse’s testimony was his opinion that there are at least 11 “community exposures” of asbestos in Libby that are not attributable to occupational pursuits. Grace maintains that the only people actually harmed by asbestos were those who had some sort of working relationship with W.R. Grace, the families of miners, or Grace employees—either “residential” or “occupational” exposures. If the jury finds the “community exposures” argument to be true, the scope of Grace’s culpability could extend from the miners, families, and those with “residential” and/or “occupational” exposures—to an entire community sickened by toxic tremolite dust circulating throughout the town which will increase far beyond any current predictions.
Whitehouse’s cross-examination testimony this afternoon was persuasive, and at times combative. Although asked a series of leading questions designed to elicit a “yes” or “no” answer, Whitehouse would often expand and qualify his “yes” or “no” to explain nuances that the question glossed over. The exchange was most heated when David Bernick insinuated that Whitehouse’s methods for determining “community exposure” do not have a proper epidemiological foundation, and are therefore on the lowest rung of the scientific ladder for this determination. At one point, Whitehouse responded by telling Bernick, and the Court, that he was there every day, he saw the people in Libby getting progressively sicker, and that he’s more qualified than anyone else to make community exposure determinations. At one point, Bernick noted that Whitehouse’s expansion on leading cross-examination questions was improper, but he never went so far as to ask the judge to actually admonish Whitehouse. Whitehouse has diagnosed several people with asbestos-related diseases, including the Parkers, and Challinor, all of whom are central figures in the prosecution’s case.
In attacking Lerah Parker’s claim, the defense presented with a good example of evidence that cuts both ways. In asserting that Lerah Parker’s exposure and disease resulted from an early exposure pre-dating the Clean Air Act’s criminal provisions, the defense reminded the jury of the prosecution’s presentation of Lerah playing in asbestos piles as a child. To attack Mel Parker and Challinor’s claims, the defense presented evidence that some doctors disagreed with Dr. Whitehouse’s diagnosis. In addition, the defense presented evidence that Challinor sometimes washed the work uniforms of miners in her chiropractic office before they went home—which brings her illness closer to something resembling an “occupational illness.”
Fortunately for the Whitehouse and the prosecution, none of the people who came to different conclusions were pulmonologists. As such, Whitehouse was able to explain that he doesn’t come to a diagnostic conclusion through one x-ray or image, but uses a number of criteria to determine whether an individual should be diagnosed with an asbestos related illness. He also suggested that some radiologists hedge their diagnoses to include remote possibilities, which ultimately protects them from later malpractice claims.
After Bernick finished his cross, McLean began his redirect. Throughout the redirect, he was very respectful of the jurors and witnesses. Through the meticulous attention he paid to Bernick’s cross, he seized on the defense’s apparent admission that workers came home from the mine with dust on their clothes, a key component of the prosecution’s endangerment claims. Although Molloy allowed the redirect only for a limited purpose, the evidence had an impact. Despite a flurry of objections from the defense’s now famous hardball trial tactics, McLean rehabilitated Whitehouse, to the point where Bernick objected that McLean was presenting cumulative rehabilitation evidence.
At the conclusion of the week’s trial, prosecution lawyer Kevin Cassidy presented what’s to come next week—an exhibit the prosecution believes will be important in proving the obstruction count. Bernick objected to the redacted version of the exhibit, saying that it looks like Grace is “hiding” something. The resolution of this exhibit will likely prove to be an important chapter in the prosecution’s case.
Michael Doggett, posted at 12:07 A.M.
Posted: March 5th, 2009 under Law.
Comments: 6 | [edit]