April 10, 2009
Below is the summary of Week 7 activities, plus blog posts for April 10 in reverse chronological order. The summary is at the top. The posts start from the bottom and read up.
After a week-long break, the W.R. Grace trial resumed at a fast pace on Wednesday, April 8. The three days of court saw discussion of past witness Robert Locke’s potential perjury, a procession of government witnesses, and direct criticism of the government’s methods by Judge Donald Molloy.
Before one juror entered the courtroom on Wednesday, Molloy took up discussion of the defense’s allegations that Locke committed perjury during his testimony two weeks earlier. The allegations stemmed from Locke’s memory of a past conversation with former Grace executive and defendant Robert Bettachi. The conversation centered on whether Grace should sell its contaminated Libby properties, to which Bettachi responded “Buyer beware,” Locke said in his testimony. However, this description contradicted Locke’s testimony during a grand jury investigation of Grace in 2005, where he denied ever discussing the properties with Grace.
“He’s as close as I would ever want to see to perjury,” Molloy said on Wednesday.
The judge said he was not yet ready to make a ruling on Locke and will decide at a later date. The judge could, if he chooses, instruct the jury to disregard Locke’s entire testimony, which spanned several days.
Another controversy arose on Wednesday afternoon, following a day of testimony from former Grace toxicology coordinator Steve Venuti. Molloy dismissed the jury for a 20-minute recess with the intent of discussing upcoming government evidence. He instead criticized the government’s inability, so far, to prove any of the charges leveled against Grace.
“Six weeks we have been at this, and I don’t know what the conspiracy is,” Molloy said. “At some point, you have to prove that there was a conspiracy to do something illegal.”
Assistant U.S. attorney Kris McLean asked Molloy for patience and time to build the case. But lead Grace attorney David Bernick took the opportunity to express his own dissatisfaction with the opposition.
“This case does not have a compass, your honor,” Bernick said, adding that the defense is prepared to file a motion asking the judge to force the government’s case if no action is taken. So far, no motion has been filed and no decision has been announced.
Wednesday’s testimony was dominated by Venuti, the government’s primary witness for the week. Venuti is an industrial hygienist who worked as W.R. Grace’s toxicology coordinator during the 1980s, involving him in Grace’s efforts to reduce airborne fibers from industrial vermiculite products such as attic insulation.
Venuti testified on the results of Grace’s “splitter” tests used on different grades of Libby vermiculite during the late ‘80s. The tests involved wetting down vermiculite in various ways with different liquids, and then splitting each vermiculite sample to make two supposedly identical samples for control and experimental tests. None of the experiment’s methods was able to reduce the airborne fibers released by each sample to below Occupation Safety Health Administration standards, Venuti testified. Read more »
After the morning recess, Judge Donald Molloy took a moment to tell the jury that none of the testimony so far that morning proves any of the endangerment and conspiracy charges Grace is charged with. This practice is called limiting instruction.
“None (of the testimony) goes toward a conspiracy to violate the Clean Air Act,” Molloy said.
The first witness called after the morning recess was Lerah Castleton-Kelly. She is the daughter of Lerah and Mel Parker.
Castleton-Kelly explained that several times she left Libby and then returned to work at her parents’ nursery. Castleton-Kelly said that she and her daughter would play on the Parker’s property daily.
“We were very active, we picked four-leaf clovers and ran around the property,” Castleton-Kelly said.
Castleton-Kelly also said that she and her family wore white cloths over their faces to minimize breathing the dust that accrued when sweeping inside the storage shed on the property.
Castleton-Kelly said she was surprised to find out about the dangers of Libby vermiculite when she read the Seattle Post-Intelligencer article.
Thomas Frongillo cross-examined Kelly and pointed out that both of her parents returned to their property after initial EPA clean-up and continued with activities such as gardening without wearing any protective gear.
“You’re not aware the EPA didn’t require them to wear respirators?” Frongillo said.
Castleton-Kelly disagreed with the leading question and said that she thought the EPA did.
Raymond Keeler, a tow-truck business owner and longtime Libby resident, was the next government witness.
On several occasions, Keeler towed vehicles out of the storage shed for the Parkers. Keeler said there was a good amount of dust in the shed when he was there even though the government’s photo showed no visible dust.
“We’re sitting here today, you and I, talking about some dust in storage shed in Montana,” defense attorney David Bernick said. “There is a lot of dust in Montana.”
Bernick asked if was anything special about the dust in the storage shed. Keeler said not particularly, but that it had a grayish white color.
The last witness of the week was retired elementary school teacher Brad Kelsch, who spent the majority of his time on the stand describing himself as a popular teacher who played sports such as kickball and football with students during recess.
The witness briefly discussed an ice-skating rink built on the Plumber School Field in the late ’70s. Kelsch said he was confused when Grace dump trucks removed material from the rink only days after they initially delivered it.
Kelsch spent the rest of his testimony estimating dates of construction and amounts of vermiculite on the elementary school field. Court will resume Monday morning at 9:00.
–Kelsey Bernius (posted 3 p.m.)
Molloy began the morning listening to the wrangling of prosecutor Kris McLean and defense attorney David Bernick over the admissibility of various testimonies. Last night, Bernick submitted a motion to bar the testimony of Lerah Castleton, daughter of past witnesses Mel and Lerah Parker. Bernick argued that the testimony would be prejudicial against Grace if it involved the emotion that the court witnessed in the testimony of Lerah Parker. He also said it was cumulative, meaning it supposedly would involve the same evidence that the court already heard from the Parkers. McLean argued that it contributed to the Clean Air Act evidence. Defense attorney Thomas Frongillo strode to the lectern, read parts of Lerah Parker’s testimony and asked how her daughter’s testimony could be any different.
“It is a stick of dynamite in this case, a month after we have already heard it. A month ago, we heard the Parkers, and Lerah Parker cried all the way through her testimony. And now, when the prosecution’s case is heading south, they want to bring someone else in to influence the jury,” Frongillo said.
The defense also protested the testimony of John Kratofil, who helped lay down vermiculite as part of the Libby school running tracks. McLean wanted this testimony because he said that Grace did not disclose the hazards to the school district so it is evidence of obstruction.
Molloy decided to allow Castleton’s testimony as long as there was no histrionics and warned the prosecution that the testimony would be tightly limited to things that hadn’t been heard before or he would throw it all out. As the defense tried to argue more against Kratofil, Molloy said he didn’t like to keep the jury waiting and said everything else would have to wait.
Once the jury was present, the attorneys seemed to try to make up for the delay by plowing through the questioning of four new witnesses.
First to the stand was Bruce R. Zwang, a 49-year-old Libby native who worked for Grace from 1981 until the mine closed in 1990. He worked a few different jobs and eventually ended up as the screening plant supervisor. He was asked questions about the respirator and clothing policies at the screening plant and said he always wore a respirator in the open storage area, otherwise known as the long shed. He said no showers were provided for workers.
He described vermiculite piled 20 feet high in the long shed and said it was still there when the mine shut down. Rejected product was stored for a short time in the area known as “the meadows,” an open area near the long shed. He knew that Libby people, including those not working for Grace, came to gather vermiculite for their personal use. He didn’t think anything of it even though he knew there was asbestos in it because the same thing was being sold to people nationwide. The defense made sure that he said the supervisors never said there was a danger in people gathering vermiculite concentrate, presumably this enables the defense to deny the conspiracy charge.
Next up was Robert Beagle, a former employee who worked for Grace from 1969 to 1992. Like Zwang, he worked a number of jobs including truck driver and crane operator. The prosecution was careful to acknowledge that he has a lawsuit pending against Grace and his testimony was very short.
Beagle was involved in tearing down the Grace property after the mine closed so he was able to testify that there were still vermiculite piles at the screening plant and export plant after the mine shut down. The area wasn’t fenced off and he knew that Libby people went there to get vermiculite.
A different side of the story came from Kelly Watson, a retired train engineer who worked for Burlington Northern Railroad. He worked in Libby between 1981 and 1988, moving cars loaded with unexpanded vermiculite over the five miles between Libby and the export plant. He would push 18 hopper cars at a time twice daily over the distance. The cars had flip lids but he testified that the lids didn’t always close well, and material was always leaking out at the export plant and at the train yard in Libby. He regularly had to clean the dust off of his train engine. Bernick asked if he had a lawsuit against Burlington Northern. Watson said he does not.
The final witness of the early morning session was Barry Dofelmere, another Libby native, who worked in the timber industry. From 1986 until 1992, he worked for a logging company that cleared and thinned the timber on Grace property. On an aerial photograph, he outlined how they logged all around the Grace mine and on both sides of Rainy Creek Road.
He testified that he regularly followed Grace trucks that sanded Rainy Creek Road, the road between the mine and the screening plant, and the road along which the Parkers ended up living. One day, he followed a truck up to the mine because he was meeting some managers there and witnessed the truck backing up to the vermiculite tailings and being loaded with tailings. He said he asked Alan Stringer at the time if he knew vermiculite contained asbestos.
“He said it wasn’t a problem because most of the asbestos comes out in the process,” Dofelmere remembered.
Bernick asked if Dofelmere knew the road was owned by the county and was cut through a vein of vermiculite. This point appeared to be showing that any responsibility for vermiculite fibers from the road belonged to someone other than Grace. After questioning Dofelmere about the locations he logged and the time frame, Bernick stated that Molloy should instruct the jury that they should not consider Dofelmere’s testimony in relation to the Clean Air counts.
As Bernick and McLean started to confront each other directly, Molloy called a halt and released the jury. Then it was back to one-on-one, or more like three-on-twelve, between the prosecution and the defense as Bernick lambasted both Dofelmere’s and Watson’s testimony. Each testimony addressed one of the obstruction counts but both are outside the applicable time frame. McLean said that Dofelmere’s comments went to the conspiracy count because Grace withheld information about using vermiculite tailings to sand Rainy Creek Road. Molloy expressed confusion about Watson’s testimony, and as Bernick launched into another demand to have it stricken, Molloy abruptly recessed the court.
– Laura L. Lundquist (posted 12:53 p.m.)