UM Grace Case

Bettacchi’s defense was in full force today as witnesses were called to demonstrate Grace’s complete transparency regarding the health risks of the Libby property that was sold or transferred after the closure of the mine.

The first witness of the morning, former Libby city attorney Mark Fennessey, testified to the environmental concerns the city had with property Grace donated to the city. While the city planned to use the property to attract industry to the area, the environmental concerns of asbestos contamination and diesel fuel spills raised red flags.

However, Fennessey testified that he, city council, and the mayor had been advised of the location of the hazards and the specific type of risks they threatened. In fact, the city acknowledged that it has been given sufficient opportunity to examine and assess the three subject areas that were at risk. Further, the city said it would assume full responsibility for the costs of operating, maintaining, and removing or remediating the three subject areas as may be required by law. However, Fennessey said Grace took further action to clean up the area, and even postponed closing on the property in order to mitigate potential risks.

On cross, Kris McLean brought out that while everyone was aware of the asbestos issues, not everyone was clear on the immediate health problems associated with the property. In fact, none of Grace’s disclosures spoke directly to the health problems of the property.

Then, Patrick O’Toole for Mr. Bettacchi called the next witness. Joseph Rogan, a former Grace controller, further testified to the donation of Grace property to the city of Libby. While the city would not agree to provide indemnity to Grace against third party claims or against currently unknown issues on the land, Rogan said Grace did not have any reason to believe that any further environmental issues would be identified in the future.

Finally, Frongillo called Melvin Parker back to the stand. What started as a professional exchange quickly escalated to a battle of divergent viewpoints with coarse words and harsh accusations. Frongillo’s main attack centered on the date of Parker’s awareness of the health risk of his property.

Frongillo pressed Parker about a conversation he had with Patrick Plantenberg who had worked for the state on the reclamation of the Grace property. Plantenberg had done an extensive analysis on the mine, and claimed to have supplied Parker with language that specifically warned Parker of the health risks associated with the property. However, Parker stood strong in claiming that he had never seen the analysis, and that he did not base any of his actions on the information contained within it.

To emphasize his point, Frongillo compared the language in Parker’s management plan with that of the environmental analysis Parker claimed to have never seen. He took Parker word for word through two paragraphs of the environmental analysis, and then compared it side by side to language from his own management plan. Frongillo started accusing Parker of plagiarizing the analysis, which would make it impossible for Parker to have never seen the document. Parker maintained, as he had testified before, that the language came from an independent source, and that Mr. Frongillo was welcome to investigate the language from that document if he liked.

Frongillo then launched his full-scale attack on Parker, claiming he lied and plagiarized to protect his own interests. “You care more about the money that is sitting in your pocket than you care about this criminal trial,” cried Frongillo. Frongillo then told Parker he had one more issue he needed Parker to resolve before he could go back to where he came from.

Over Parker’s objections, Frongillo attempted to corner Parker into saying he wanted to keep the vermiculite on the property. Parker resisted Frongillo’s advances by claiming that the vermiculite was no good to him unless it had already popped, and further stated that he had done Grace a favor by relieving them of their obligation to remove the material. Frongillo never quite got the words of surrender he was looking for, but he continued to press Parker further. Parker finally called the last shot when he told Frongillo that he was starting to sound like he was done.

Frustrated, Frongillo spouted, “You went forward with the deal with your eyes wide open,” and the morning was called for recess.

– Kathryn Mazurek (10:25 a.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.)

 The defense continued its case this afternoon, as W.R. Grace attorney Walter Lancaster (no relation) examined geologist and former Grace employee, Eric Moeller. Moeller arrived in Missoula less than an hour before testifying, following a whirlwind trip from Germany, a trip which began earlier in the week when he learned that Grace wanted his testimony. Lancaster had Moeller describe his history, both as to his education and experience as a geologist, but also as a Grace employee. Moeller has worked for Grace in various duties around the country, including at the Libby mine and at Grace headquarters in Cambridge, Massachusetts, although he is now a private consultant.

Moeller had originally been considered as a prosecution witness, but it was the defense who ultimately called him. He testified about the conditions he remembered from working at Libby, as well as his efforts (when he worked in Massachusetts) to help former Libby manager Alan Stringer, the deceased former defendant, answer the EPA’s second 104(e) request for information. When asked about the conditions of the mining efforts, Moeller said, “This isn’t pick and shovel mining anymore, most things are mechanized,” and, in regards to miners and dust, that most of the time, “[t]he worst they would get is some mud on their boots.”

On cross examination prosecutor Kevin Cassidy got Moeller to tell the jury that he had never actually seen the EPA’s request in its entirety. After a few other questions and a brief redirect, the defense called Dr. Suresh Moolgavkar, their expert in epidemiology, biostatistics, and quantitative risk assessment. After defense attorney David Bernick laid extensive foundation, Judge Molloy ruled Dr. Moolgavkar could testify as an expert in these areas. Using detailed slides as demonstrative exhibits, Bernick had Moolgavkar testify about methodological flaws in the EPA’s determination of the risk to Grace workers. Moolgovkar, as an expert in epidemiology, testified that the Grace employees’ data should be best analyzed as a “cohort study,” a statistical method less reliable than a “randomized trial” (consisting of random control and exposure groups), but significantly more reliable than an “ecological study” (where entire populations are examined with no control groups). When Moolgavkar got to a slide where he summarized his finding in such a way as to tell the jury that the EPA had significantly overestimated the risk to Grace employees when compared to three other analyses of the same data, prosecutor Kris McLean objected for lack of disclosure.

After excusing the jury, Molloy heard arguments on the objection. McLean claimed that the defense had not appropriately informed the prosecution of the substance of Moolgovkar’s testimony, thereby preventing preparation of a proper cross-examination. Bernick replied by pointing out specifics in one of the defense disclosures, and Molloy overruled the objection. The court then took a brief recess.

Mark Lancaster – posted 5:22 pm

Defense witness William M. Corcoran, Vice President of Public and Regulatory Affairs for W.R. Grace & Co., testified late Thursday morning under the direction of defense attorney Bernick.  Corcoran joined W.R. Grace & Co. in 1999 with the responsibility for environmental, health and safety, communications and governmental affairs.

Corcoran wrote an infamous letter, dated April 10, 2002, to Christine Todd Whitman, the then Administrator of the EPA.  The Government pulled direct quotations from the letter to use in the indictment, Count VII, Obstruction of Justice against Grace. In 2001-2002, the EPA proposed to declare a federal public health emergency across the United States because of Zonolite Attic Insulation (ZAI). The letter followed a meeting about ZAI between the EPA and Grace.  In the letter, Grace recommended that the EPA should not declare a public health emergency because Grace’s independent scientific and statistical data showed little risk—to human health or the environment—from properly installed ZAI.

The indictment, Count VIII, Obstruction of Justice states:

W.R. Grace did corruptly obstruct, impeded, and endeavor to . . . in a letter to the Administrator of the EPA . . . “Grace’s expanded vermiculite, which was used in ZAI, poses no risk to human health or the environment.” “ . . . [ZAI] contains biologically insignificant amounts of respirable asbestos fibers;” “. . . it is reasonable to expect that disturbance of [ZAI] will not result in hazardous levels of airborne asbestos fibers;” and “. . . there is no credible reason to believe that ZAI has ever caused an asbestos-related disease in anyone who has used in his/her home.”

Corcoran testified that Grace’s letter petitioned the Government to make a scientific determination about ZAI.  According to Corcoran, the Government has not disproved Grace’s scientific and statistical data.  In fact, Bernick introduced a couple of studies that corroborated Grace’s scientific data about ZAI.  One example, a NIOSH study, stated that a public health emergency in connection with ZAI was unwarranted.  Corcoran stated that W.R. Grace had hoped that the EPA would respond to the content of the letter—but the EPA failed to do so.  The EPA ultimately decided not to declare a public health emergency.

Bernick switched back and forth between the letter and the indictment to show that the information in the letter did not corruptly obstruct or impede the Government, but instead recommended a course of action.

— Audrey Schultz (posted 3:10 pm)