March 9, 2009
All blog posts filed March 9, 2009, are duplicated here in reverse chronological order. Read from the bottom up.
The Definition of Danger and Dr. Miller’s Testimony – Analysis
On March 9, with the jury dismissed due to an ill juror, the prosecution and defense began a lively argument over several key issues, with the testimony of Dr. Aubrey Miller being the first. [Defense motion to exclude Miller’s testimony docket #968]
Concerning the testimony of Miller, clad in his U.S. Public Health Service Commissioned Corps uniform (which looks like a Navy uniform), defense attorney Scott McMillin contended Miller used the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) standard for endangerment, which differs from the Clean Air Act’s (CAA) definition of endangerment. As a result, McMillin argued Miller’s testimony would be prejudicial, pursuant to FRE 403, because it uses a different endangerment standard.
Defense attorney David Krakoff continued the argument by averring that Miller’s testimony will create confusion for the jury and thus be prejudicial as a result [referencing FRE 403]. The confusion would result in “letting the cat out of the bag” and therefore “place the defense in an untenable position if Dr. Miller is deemed an expert and can provide testimony as such.” Furthermore, Krakoff contended a limiting instruction pursuant to FRE 105 would not satisfactorily “put the cat back in the bag.”
Molloy had previously ruled Miller was an expert. See docket #744. However, Molloy did not rule on today’s question of whether Miller should be allowed to testify to endangerment or whether a FRE 105 limiting instruction would be appropriate.
The central argument between the prosecution and defense was the standard for “danger” in CERCLA versus the CAA. The defense used this argument for two purposes: (1) to entirely prevent Miller from testifying, and (2) to restrict his testimony to not include any references to endangerment because it would confuse the jury. The full analysis of the different language, including modifiers used in the acts, and their implications of the legal argument can be read here.
–Christopher Orman
Posted: March 9th, 2009 under Law.
Tags: CERCLA, Miller
Comments: 7 | [edit]
Toxicologist Miller due to testify Tuesday
Court reconvened at roughly 1:15 p.m. after a truncated morning in which the jury was dismissed because one juror had taken ill. A seemingly frustrated Judge Donald Molloy returned this afternoon to tell the courtroom that the sick juror was at the doctor’s office and that the physician would call him with an update as to whether or not he would be well enough to continue in the morning.
“If he can’t, we will proceed with an alternate juror,” Molloy said.
With the trial itself at a standstill, Molloy took up where the morning had let off, questioning the prosecution about the relevance of a number of exhibits to which the defense had objected. The exhibits included both pictures and air samples from around Libby, including the high school track area, the middle school and the skating rink.
“What’s being described in these exhibits is that when you disturb these materials asbestos is released,” said assistant U.S. attorney Kris McLean, who assured Molloy that each was designed to illustrate exposures of people at locations described in the indictment.
Following McLean’s initial response to Molloy’s questioning, a number of defense attorneys raised additional concerns regarding the exhibits in question, all of which are to be offered during the testimony of Dr. Aubrey Miller, a toxicologist for the EPA’s Region 8 office in Denver and the government’s next expert witness.
Defense attorney for W.R. Grace, Scott McMillin, argued that the problem with a number of the air samples is that they are based on worker cleanup and not “normal” activities such as raking or mowing grass.
“They’re [the prosecution] using the most aggressive cleanup methods to show their testing,” he said. “The government is cutting the data every which way they can.”
David Krakoff, representing Henry Eschenbach, also objected to the exhibits saying that they are not relevant to the issues involved in this case. “It puts a false notion in the minds of the jurors…and we have to fight uphill,” he said.
“The gatekeeper role of the court is very, very important, and we ask the court to exercise it here.”
Molloy ended the day by reminding everyone that the trial will continue tomorrow. “I want to make clear we’re starting the trial at 8:30 tomorrow morning…we’re going to move forward,” he said in a stern voice.
Court will reconvene with Miller expected in the witness stand.
–Chris D’Angelo (posted 5:45 p.m.)
Posted: March 9th, 2009 under News.
Comments: 4 | [edit]
Are Proposed Exhibits an Eleventh Hour Effort?
At 1:15 this afternoon, in the absence of the jury, Assistant U.S. Attorney Kris McLean argued for the admission of a series of exhibits the government provided to defense early this morning. The jury was absent due to the untimely illness of one of the jurors. McLean went through the proposed exhibits one by one, beginning with Exhibit 811 and finishing with Exhibit 827. For each exhibit McLean gave a brief summary as to why the exhibit is relevant and should be admitted in conjunction with the testimony of Dr. Aubrey Miller, the government’s next expert witness.
In essence, exhibits 811 through 816 provide studies of air samples taken at various sites throughout Libby. These sites are not located at the Grace mine and include locations such as the Parker’s long shed, the high school track, and the Libby skating rink. These studies consisted of workers performing cleanup duties while wearing pump equipment that reads the concentration of asbestos fibers in the air. The individual workers who participated in the cleanup studies performed daily tasks such as running on the track, playing in dirt, mowing the lawn and sweeping. The pump equipment would then estimate the amount of asbestos fibers inhaled while such common activities where being performed.
During McLean’s explanation of Exhibit 811, Judge Molloy requested the relevance of these proposed exhibits. McLean responded that these studies go to show the effects of asbestos on the residents of Libby, not the workers of W.R. Grace. For instance, when you sweep the floor in the Parker’s long shed, asbestos is released into the air and inhaled in dangerous amounts. Judge Molloy then inquired as to whether the government was seeking to admit these exhibits to prove the actual or intended release. Although not providing a direct response, McLean asserted the dangerous materials that become airborne when performing daily activities such as sweeping came from the Grace mine, were deposited by Grace and therefore are connected to Grace.
Exhibits 817 through 827 consist of time weighted studies that correlate to exhibits 811through 816, as well as other air sample studies conducted in various locations throughout Libby. McLean did not discuss these exhibits in great detail, indicating that Dr. Miller would be able to provide a more effective explanation of their value and relevance.
At the close of McLean’s argument Judge Molloy reiterated his concern that the proposed illustrative exhibits will be offered to prove a release by Grace. McLean asserted the exhibits provide circumstantial evidence of such releases. Judge Molloy voiced his disagreement with McLean’s argument, indicating that even if certain activities discussed in the exhibits did occur, they do not prove that Grace caused the release of the asbestos into the air. McLean then countered that they may prove Grace caused someone else to release the asbestos into the air. Judge Molloy further disagreed with McLean, stating the mental state in the Clean Air Act is raised to willfully and therefore will not be satisfied by McLean’s proposal.
The main arguments raised by defense counsel regarding the exhibits were delay, potential to mislead, prejudice and burden shifting. Defense attorneys Scott McMillin and Thomas Frongillo disputed the admission of the exhibits based on their late disclosure. Both attorneys indicate that presenting the defense with new exhibits on the morning before they are to be discussed by the expert witness constitutes an inappropriate delay. McMillin twice reminded the court that in addition to the late disclosure, the defendants had only received the first half of the offered exhibits. Frongillo categorized such delay as an eleventh hour attempt to surprise the defense. Last minute admission of the exhibits does not allow the defense to prepare an adequate response or an effective cross examination of Dr. Miller.
In addition, defense attorney David S. Krakoff labeled the last minute exhibits offered by the government as confusing, misleading and ultimately prejudicial. Krakoff argued that the prejudicial effect of the exhibits outweighs their probative value and puts a false notion in the mind of the jurors. For this reason, he argued that Judge Molloy should use Rule 403 of the Federal Rules of Evidence, which prevents evidence, including relevant evidence, from coming in if “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
The final substantial argument voiced by the defense was advanced by Frongillo, who stated the admission of such exhibits would shift the burden of proof from the government to the defense. If the defendants have to engage in vigorous cross examination in order to disprove the relevance of the proposed exhibits, then the government’s burden to prove their case beyond a reasonable doubt is shifted.
After the arguments for and against the admission of the exhibits had been voiced, Judge Molloy emphasized that trial will resume at 8:30 tomorrow morning. Judge Molloy wanted all parties to be absolutely clear that trial will take place tomorrow morning even if that means an alternate juror will be used to substitute for the ill juror. Judge Molloy did not offer a ruling on the admission of the exhibits but indicated that he would come to a decision before tomorrow’s commencement of trial.
— Shannon Foley
Posted: March 9th, 2009 under Law.
Comments: 1 | [edit]
Testimony of Dr. Miller Delayed and Disputed
The government’s presentation of evidence was delayed Monday morning by an empty seat in the jury box. The juror called in sick, and Judge Donald Molloy announced that the juror would be contacted to determine when the juror will be able to return. If the juror will not be able to return soon, an alternate juror will take his place. The jury was instructed to return at 1:15 p.m.
The jury was released by 9:08, after which Judge Molloy heard two issues raised by Scott McMillin, defense attorney for W.R. Grace. First, McMillin took issue with seven exhibits (exhibit numbers 811-816, 823) that the government provided to the defense this morning. The exhibits, as Assistant US Attorney Kris McLean later explained, are compilations of data that would be offered for demonstrative purposes during the testimony of Dr. Aubrey Miller, the government’s next witness. McMillin made a string of reasons for his objection to the use of the data, including that he had not been given time to examine the compilations, the government did not provide the underlying data in the reports, the data was irrelevant because it was collected during the cleanup, there was no proper foundation for its admission, the data included information regarding acts outside the time frame relevant to these charges, and the compilations violated pretrial orders excluding certain types of evidence, like data that made correlations between soil samples and air samples.
The second issue raised by McMillin concerned whether Dr. Miller could testify. Over the weekend, the defense filed a motion to exclude Dr. Miller from testifying. (Docket number 968). Before McMillin argued the request to block the testimony, Judge Molloy asked, “I’ve ruled on Dr. Miller, haven’t I?” (See Judge Molloy’s order permitting Dr. Miller’s testimony at Docket number 744.) Despite Judge Molloy’s earlier ruling that Dr. Miller’s testimony is admissible under the Federal Rules of Evidence 702 and Daubert, the defense argues that Dr. Miller’s testimony should be excluded because it does not “fit” the exact issues in this case. The defense argued that Dr. Miller was qualified in administrative or regulatory procedures, namely CERCLA liability, and that expertise does not “fit” the criminal endangerment issue under the Clean Air Act (CAA) presented here. Accordingly, the defense argues, Dr. Miller should not be able to testify. The defense further argued that Dr. Miller’s testimony would unfairly prejudice the defendants, and the difference between CERCLA and CAA standards would confuse the jury.
McLean responded to the first issue by explaining how the government intended to use the exhibits as demonstrative aids to the testimony of Dr. Miller. He assured the court that the compilations were based only on data from the admissible time periods. As for the second issue, he responded that the objection to Dr. Miller’s testimony went to the “weight and not the admissibility” of the offered testimony. McLean argued that the jury should be allowed to hear and to weigh the probative value of Dr. Miller’s expert conclusions.
Next Judge Molloy questioned McLean on the relevance of proposed exhibit 823. Exhibit 823 compiled data collected by clean-up workers who wore asbestos monitors while doing activities common to the Libby resident, like raking leaves, mowing grass, etc. Judge Molloy asserted that this evidence is only relevant if the government’s theory of the law regarding what constitutes a “release” is correct. Judge Molloy asked how the data could be relevant, since “Grace didn’t cause any of these releases.” McLean responded that though these were simulated “releases” for the purpose of testing, the circumstantial evidence was admissible because it had a propensity to prove other elements of the charged offenses.
McMillin responded that the government should not be able to introduce unfairly prejudicial evidence under the guise of demonstrative evidence. Further, he argued that the evidence was not relevant because the government could not establish that the fibers in those soil samples were placed there by W.R. Grace.
Defense attorney, Thomas Frongillo, then asked the court to take judicial notice of the absolute absence of any laws concerning asbestos levels in soil. He then argued the defense that asbestos fibers naturally exist in the environment around Libby. Finally he argued the testimony of Dr. Miller and the exhibits were not relevant because both are based on data compiled “years after, in a staged experiment by government officials” designed “to connect Cambridge executives” who signed over the property by deed in 1993.
The defense has proposed a legal definition of “release” in its proposed jury instructions, which can be found at page 31 of docket number 719. The defense defines “release” as “the movement of material, in this case asbestos fibers, into the air. Once released material settles out of the air, the release ends. If the material later re-enters the air, that is a new and separate release.”
by Nick Lofing
Posted: March 9th, 2009 under Law.
Comments: 7 | [edit]
Trial postponed due to juror’s illness; new evidence debated
It was over before it started in court this morning.
Court participants arrived having braved the -1 degree windchill as a bitter wind roared through Missoula’s Hellgate Canyon at a steady 20 mph. They entered the calm of the Russell Smith courthouse only to learn that one of the jurors was ill. Judge Donald Molloy pointed to the empty chair in the jury box with barely concealed irritation and said the court needed to determine exactly how ill the juror was before they could decide how to proceed. Acknowledging that raw winter days are when people are going to get sick, he said that regardless, court could not proceed. He dismissed the jury until 1:15 p.m., at which point the court hopes to know better if trial can proceed today, or if it needs to transition to an alternate juror and start again Tuesday.
With the trial postponed for the morning, attorneys for several defendants brought up objections they hoped Molloy would consider out of earshot of the jurors. As of this morning, the defense had received seven summaries of 106 data sets that would be included as part of the expert witness testimony, mainly that of Aubrey Miller. The defense wanted the judge to hear their objections in summary and rule on them now. They said the jury would see the defense in a bad light if they had to jump up and down 106 times, objecting to each data set in turn.
Grace attorney David Bernick told Molloy that since they hadn’t received all the data, just the summaries, they couldn’t speak to much of it. But they argued against any data that was outside the trial time frame of 1999 to 2005. They also objected to data showing specific asbestos levels in the soil. They said the prosecution was trying to create a “soil-to-air correlation” by showing the amount of asbestos in the soil and saying this amount ended up in the air when people disturbed the soil. The prosecution said that was not the way it intended to use the data.
The defense was also concerned about data showing air samples with asbestos concentrations around areas, such as Mel and Lerah Parkers’ long shed, where people were doing routine chores such as raking and digging. The defense said since there is naturally occurring asbestos in the soil around Libby, the prosecution could not link the data with anything showing that the disturbed asbestos resulted from the Grace operations. The prosecution countered that they were not trying to show cause and effect; that this data is just another component of the whole, showing the way all these things come together to affect the people of Libby as the result of the Grace operation.
Molloy questioned the prosecution’s logic a number of times, still coming back to the question of how someone raking the dirt in 1997 had to do with Grace air releases after 1999. When the defense then tried to follow the judge’s line of questioning, saying the prosecution’s arguments were “spurious,” the judge said, “They may not support your line of argument; that does not mean that they are meaningless.”
Finally, the defense said they wanted to preclude the testimony of Dr. Aubrey Miller. The judge pointed out that he has already approved the testimony of Miller. The defense argued that Miller was going to use some of the data in question to support his opinion. More to the point, apparently, was that Miller had dealt with “endangerment” under the CERCLA or Superfund definition and would tend speak in terms of understanding risk in managing a Superfund cleanup. The defense said this was about “endangerment” as defined under the Clean Air Act, and that it was being used in a criminal trial, not a cleanup. The prosecution said that they thought the jury could differentiate between CERCLA and the Clean Air Act, and if need be, the judge could give them instructions prior to deliberation.
The judge gave counsel a final chance to add anything else and, without ruling, said he would see everyone back in court at 1:15. The legal teams bundled up and headed back out into the Hellgate winds.
– Laura L. Lundquist (posted 11 a.m.; edited 3:43)
Posted: March 9th, 2009 under News.
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