Bernick objects to Dr. Whitehouse’s testimony
After the jury was dismissed due to illness early Wednesday afternoon, Molloy and the attorneys for both sides returned to the courtroom at roughly 3:30 p.m. to discuss the testimony of Dr. Alan Whitehouse, a pulmonologist from Spokane.
The discussion kicked off with a little humor when Judge Molloy couldn’t find his pen and defense attorney David Bernick then asked Molloy to allow him a moment to gather his thoughts.
“Maybe if you don’t have your thoughts together I don’t need my pen,” Molloy said with a smile.
After gathering his thoughts, Bernick began challenging, once again, the opinion of Dr. Whitehouse by pointing out the need to demonstrate the relationship between the “release” and “risk” of asbestos. Bernick said this distinctinon can only be made through a quantitative risk assessment. Whitehouse did not have such an assessment.
“His [Whitehouse’s] material was essentially his case reports,” Bernick told Molloy, pointing out that Whitehouse didn’t use epidemiology. “He just talked about his own anecdotal experience with his own patients …there was no methodology.”
Describing Whitehouse’s testimony as “insulting,” Bernick said that he came in and told the jury to simply ‘accept his word.’
“The jury needs to be told that that kind of testimony doesn’t cut it,” Bernick said. “That is his say-so.”
According to Bernick, the issue with Dr. Whitehouse’s testimony is the opinion he offered and his basis for it and not his qualifications as a clinician.
“When he says that there’s a problem in Libby, he’s suggesting something beyond differential diagnosis,” Bernick said. “This case requires that the jury be told scientifically that a risk has arisen as a result of environmental factors.”
Following Bernicks objection, Molloy read aloud a large section of Whitehouse’s testimony to Eric Nelson, an Environmental Protection Agency attorney for the prosecution.
“Doesn’t he [Whitehouse] undermine his own opinion when he says he’s relying on his common sense?” Molloy asked. “We’ve got fifteen people here with common sense…they [the jury] need, if anything, his science.”
Nelson assured Molloy that Dr. Whitehouse was “only part of our case” before Bernick stepped in once more.
“He [Whitehouse] doesn’t have anything that actually fits into the analysis,” Bernick said. “He made the admissions … it was crystal clear.”
Molloy thanked both sides for their arguments before recessing the court until 8:30 Thursday morning when Dr. Daniel Teitelbaum, a retired expert in toxicology and the government’s next witness, is expected to begin his testimony — assuming the sick jurors are feeling well enough to proceed.
–Chris D’Angelo (posted 7:00 p.m.)