Grace Continues Cross-Exam of Dr. Miller
After a brief afternoon recess, Grace continued its cross-examination of Dr. Miller. The cross examination was broken down into two parts: the presentation of a statistical study by the defense that contradicts Miller’s testimony about certain low-dose diseases and their ties to COPD and lung cancer, and; the presentation of evidence by the defense that various government agencies, including the EPA, OSHA, and the Consumer Products Safety Division, knew of harmful asbestos in Libby vermiculite as far back as 1971, and failed to take any action to remedy the problem for decades.
Dr. Miller’s role as a central figure in the EPA’s 1999 investigation of Libby makes him an important witness for the prosecution, but it also makes him an important witness for the defense, especially regarding the knowing endangerment charges that have been filed against Grace. After Bernick finished his cross-exam of Miller by pointing out differences in his opinion and the results of a particular study that found no statistically significant correlation between COPD and lung cancer and asbestos exposure at low dosages, Frongillo began a line of questioning that will likely play a significant role in the trial.
Two of Grace’s primary defenses in this case are: (1) that the U.S. Government and the State of Montana had a chance to prevent this from happening, and (2) that Grace did not have a duty to disclose evidence that merely corroborated what the government already knew. Today, those in the courtroom saw the beginnings of this defense. With a well-prepared chart and calendar, the defense established that Dr. Miller was called to Libby in 1999, but, by 1971, the EPA knew that Libby vermiculite contained harmful asbestos particles — only months after EPA’s formation in 1970.
The defense also presented evidence that the vermiculite obtained from Libby was used at a Scotts Turf Builder factory in the 1970s, and that several workers at the factory developed abnormal plaques in their lungs due to intense exposure to Libby vermiculite. As a result, an EPA priority review report was triggered after O.M. Scott self-reported incidents of worker injuries from asbestos exposure. Not only was the EPA included in the investigation, but OCEA and the Consumer Products Safety Counsel also played important roles in it. The final report found as many as 32 abnormal chest x-rays in workers at the O.M. Scott factory. In other words, according to the defense, the EPA, OCEA, and the Consumer Products Safety Counsel knew as early as 1980 that Libby vermiculite was a harmful product–at which time Dr. Miller and Paul Peronard, two central figures in the eventual large-scale Libby cleanup efforts, were young men.
Grace’s meticulous recitation of the government’s knowledge of the dangers of Libby vermiculite suggested that Grace’s defense in this case is to raise simple questions to the jury: Why did it take so long for the EPA to step in and help people in Libby? Why wasn’t the government warning Libby about the dangers of the vermiculite it was mining and shipping across the country?
If the Grace defendants can successfully impugn the government’s handling of the Libby area, they may successfully deflect enough attention from their own conduct to seriously undermine many of the government’s star witnesses, or at least the agencies they worked for.
At the end of the day, Grace indicated that no fewer than three defense attorneys (including Frongillo) would question Miller tomorrow. If today’s developments provide any guidance, the court will hear a barrage of examples of how the government, despite its knowledge of the problems in Libby, took decades to help the citizens in Libby, and acted only after a Seattle Post-Intelligencer article put Libby on a national stage.
Michael Doggett, 11:40 P.M.