UM Grace Case

During the past week, Judge Donald Molloy dismissed two defendants, ruled on two critical motions and revealed a deadline for his ruling on another.

The prosecution said that they didn’t have enough evidence to prove their case against Robert Walsh on April 27 and defendant William McCaig on April 30. Three defendants remain to face the charge of conspiracy: Robert Bettacchi, Jack Wolter and Henry Eschenbach.

Molloy ruled on April 28 that there were insufficient grounds to dismiss the trial due to prosecutorial misconduct. The day before, Grace attorney David Bernick, argued that the testimony of a number of the prosecution’s witnesses had included “overwhelming and uniquely pervasive” perjury. But Molloy said in his opinion, “Incompetence is not bad faith. Poor planning is not malice. A systemic flaw is not always flagrant conduct. And the damage, while serious, is not irreparable.”

Molloy ruled that he would not strike of Robert Locke’s testimony, but that the jury could not use it in determining Bettacchi’s guilt. The defense was allowed only limited cross-examination of Locke, without re-direct. Also, all evidence introduced through Locke was allowed to remain as part of the case.

With the Rule 29 motion to acquit hanging over the court for the past 10 days, Molloy finally said on April 30 that he would reserve his ruling until after the jury reaches a verdict. If Molloy decides to acquit under Rule 29, the prosecution may appeal the decision to the Ninth Circuit because Molloy waited until after the jury had reached its decision to make his.

The defense team began calling witnesses this week and plans to conclude its presentation by May 6. The next day, the jury will hear closing arguments and possibly enter deliberation by May 8.

Bernick used former Grace executive vice president Elwood “Chip” Wood to counter the conspiracy charges and some of Locke’s testimony, asserting Locke’s memos were inconsistent with Grace policies. Then Bernick got a chance to question Locke and argued that Locke had a “special” relationship with Robert Marsden, an agent for the Environmental Protection Agency, in an effort to discredit Locke.

A quick succession of defense witnesses moved through the courtroom over the next couple days. Many testified about details that would deny the count of conspiracy: former Grace environmental engineer Randy Geiger; Kathryn Coggon, lawyer for Grace who dealt with the EPA’s 104E request; Lawrence Albert Dolezal, former Lincoln Country Commissioner; Eric Moeller, former Grace geologist; and Mike McCaig, son of the now dismissed William McCaig.

The testimony of Dale Cockrell, lawyer for the Kootenai Development Corporation, and Patrick Platenburg of the Montana Department of Environmental Quality went against the knowing endangerment counts regarding the sale of Grace property. Suresh Moolgavkar testified to oppose Dr. Aubrey Miller’s evidence with regard to the second knowing endangerment count. In order to counter one of the obstruction of justice counts, William Cocoran, Grace vice president of public and regulatory affairs, testified that Grace had written the EPA about Zonolite Attic Insulation and the EPA had not disproved Grace’s data.

The defense claimed to have trouble bringing in the rest of their witnesses so court is recessed until Tuesday at 9 a.m.

– Laura Lundquist and Will Grant (Posted 4 p.m.)

Thursday afternoon continued following afternoon recess with David Bernick continuing his examination of Dr. Suresh H. Moolgavkar, an epidemiologist and bio-statistician from Bellevue, Washington.

Dr. Moolgavkar testified that EPA estimates overestimate the risk of lung cancer associated with exposure to Libby asbestos and that any accurate risk assessment should have been based on Libby-specific data. Moolgavkar testified that, “In referring to cancer, the Libby samples are less potent or less toxic than those used in the EPA estimates. For mesothelioma, there is no data indicating an increased risk for exposure greater than 15 fibers per milli-year.”

Direct examination of Dr. Moolgavkar then moved to the findings of the ATSDR Mortality Study, which focused on community exposures, which were at a much lower dose than occupational exposures. The study compared mortality rates in Lincoln County with background rates for the state of Montana and the United States. Moolgavkar testified that, looking only at cancer rates, the difference between Lincoln County and background rates was statistically insignificant. Similarly, he testified to statistically insignificant rates for mesothelioma, COPD and asbestosis. He stated, “There is no observed risk increase from environmental exposure.”

Dr. Moolgavkar went on to impeach some of James Lockey’s prior testimony, stating that it is probable that Lockey underestimated exposure levels before 1973. Moolgavkar also testified that Lockey overestimated the asbestos potency in Libby.

At 4:13 prosecutor Kris McLean began his cross-examination. Moolgavkar was consistently resistant to McLean’s lines of questioning. At on point, McLean asked Dr. Moolgavkar, “There are many exposure pathways, other than being a miner. Is that part of your determination?” To which Moolgavkar responded, “That is not what I said, for the second time.”

On cross, Moolgavkar testified that if you have an epidemiological study, it trumps any other kind of evidence.

Moolgavkar was particularly resistant to one of McLean’s questions. When asked if one needs dose information to determine the cause of an asbestos related disease, Moolgavkar responded, “Are you prejudging the cause? If you’re prejudging the cause then the question is circular. If you prejudge that a disease is caused by asbestos, then the diseased is caused by asbestos. I cannot answer the question.”

Mclean did manage to impeach Dr. Moolgavkar, over objection by Bernick, eliciting that W.R. Grace paid him for his research and that he had worked for the company in prior litigation. McLean also used his cross-examination to request expert preparation materials that apparently hadn’t been produced to the prosecution. Judge Molloy directed Moolgavkar to provided all the requested data.

– Bert Certain 12:00 pm

Late yesterday, Judge Molloy indicated that he would reserve ruling on the defense Rule 29 motions to acquit until after the jury had returned a verdict.

During the week, the parties and the public have waited anxiously for Judge Molloy to rule on the defendants’ motions for acquittal under Rule 29.  The tension mounted throughout the week as the prosecution dismissed two individual defendants:  Robert Walsh and William McCaig.

During yesterday’s afternoon recess, Judge Molloy asked for all counsel in his chambers.  Upon returning to the courtroom, the case proceeded with defense witnesses.  It was not until after the jury was excused for the day that the subject of the in-chambers conference became apparent.  David Krakoff, representing defendant Eschenbach, asked the court to reconsider his “inclination” to reserve ruling under Rule 29(b).

Rule 29(b) allows a court to let a case go to the jury for a decision and then grants the court the power to dismiss the case in the event the jury returns a verdict against the defendants.  Rule 29(b) states:

The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.

While the court stated that he had not made up his mind on the issue, it was his “inclination” to let the jury make a decision and reserve his ruling on acquittal until after the verdict.  In other words, if the jury convicts, the court would consider whether to overturn the convictions of the defendants.  If the jury acquits, then the court would not have to make a ruling on the defendants’ motions for acquittal.

It was this point that David Krakoff argued emotionally to Judge Molloy yesterday.  Krakoff urged the court not to wait until after a jury verdict of conviction because then the “momentum” is in favor of affirming the jury’s verdict.  Krakoff suggested that his experience has been that judges have been unwilling to overturn jury verdicts.  Realizing that his argument may have suggested that Judge Molloy was unwilling to make a difficult decision in the face of public opinion, Krakoff immediately back-pedalled.  Judge Molloy related an ancedote about another case in which he had gone against the grain of other judges’ rulings and expressed his ability to make difficult decisions that he felt were legally compelled.

Judge Molloy told the parties that the jury would hear closing arguments in the case on Thursday.

Earlier in the trial, and several times in his orders, Judge Molloy has expressed his disagreement with the government’s case as to conspiracy and the Clean Air Act violations.  Judge Molloy has repeatedly asked the prosecution for their evidence of conspiracy and to explain their theory of conspiracy.  Since the only charge Eschenbach is facing is conspiracy, it appears that the judge will not eliminate the conspiracy charge from the jury’s consideration.  The prosecution will have the opportunity to explain their theory behind the conspiracy and convince the jury that there is sufficient evidence of conspiracy to convict beyond a reasonable doubt.  Since Eschenbach is not charged with violating the Clean Air Act, the court’s inclination sheds no light on possible acquittals on the Clean Air Act counts (Counts II, III, and IV of the indictment).

— Andrew King-Ries (posted 5/1/09, 6:45 a.m.)