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.