Miller Gives Ultimate Opinion
Kris McLean finished laying the foundation for Dr. Miller’s ultimate opinion this afternoon by examining Miller on several more studies that he used, in conjunction with his work in Libby, to formulate his opinion.
The first was a Grace study entitled “Cause of Death of 66 Libby Employees.” Over defense relevance objections, the study was admitted (apart from the title page, as was the case with most of the studies) into evidence. Miller explained that the study compared the deaths of 66 of Grace’s Libby employees between 1950-1981 to the average death rate for lung cancer of white males in the United States during that same time period. Libby’s employee lung cancer death rate was almost three times higher than the national average, with 14 men dying from lung cancer during that time, while only 5 died on average. See government exhibit 314.
The next study was another document Miller received from Grace when he arrived in Libby in 1999. It was an x-ray study performed on Grace employees in 1985 that measured total exposure to asbestos, number of years worked, and presence of lung disease. Miller began explaining the significance of the study–that workers who had much lower levels of asbestos exposure than prior studies were still being diagnosed with lung disease–but just as he was getting into the details of the study, Judge Molloy sustained a defense objection of undisclosed expert testimony. See government exhibit 484.
McLean moved on to a community mortality study that showed the people of Libby’s rates of asbestosis to be 40-80 times higher than the national average, their rate of lung cancer to be elevated 30%, and the presence of eight cases of mesothelioma in the Libby area. The mesothelioma rates could not be compared to a standard average because the disease is so rare standardization statistics have not been measured. Miller testified the diagnostic rate for mesothelioma is 1/1,000,000. Miller then attempted to discredit a Grace study which showed lower rates of disease in Libby by pointing out that the Grace study took the worker population out of the Libby statistics, but did not remove the worker population from the general population statistics. Thus, Miller believed the comparisons were inaccurate.
Finally, Miller testified about two studies done by a Dr. Lockey from Ohio in 1984 and 2005. Miller examined these studies because he was seeing a lot of cases of asbestosis in the Libby population, and the studies examined workers at a vermiculite processing facility who were exposed to much lower levels of asbestos than the Grace mill workers. These workers had similar lung diseases to the non-workers in Libby, such as pleural plaques, and Miller testified that the fact that these comparatively low exposures were causing lung disease in the Ohio workers could help explain the growing number of similar diagnoses in Libby.
Lockey performed a follow-up study in 2008. Lockey had followed the diseased workers through 2005, and their rates of lung disease had risen from 2% in 1984 to 28% in 2005. This study also used the lowest asbestos exposure levels ever reported in medical literature, which Miller said was significant because even seemingly small and insignificant exposures to asbestos, such as raking up piles of it or mowing over it, can cause disease in a relatively short period of time. The defense then objected to undisclosed expert testimony and moved to strike. McLean said the testimony had been disclosed, and pointed Judge Molloy to specific pages within the discovery documents. Molloy was unconvinced: he sustained the objection, and struck Miller’s final answer from the record.
Sensing the jury’s fatigue after the long day of detailed expert testimony, McLean prompted Miller for his ultimate opinions. For detail on his opinions, see Josh Benham’s posting. The defense objected to Miller’s opinions under Rules 702 and 703, and defense attorney Krakoff requested a limiting instruction as to Miller’s testimony that the conditions in Libby still pose an imminent danger to its citizens. Molloy instructed Krakoff to draft his instruction and then he will decide whether he will use it to instruct the jury and limit Miller’s testimony.
Katy Furlong (posted at 8:30 p.m.)