April 15, 2009
Below are blog posts for Wednesday, April 15, 2009, in reverse chronological order. Read from the bottom up.
Following the afternoon recess, Bernick resumed his cross of Lockey, attempting to undermine his testimony on direct. He began the cross by attempting to show that the correlation between dosages and diseases may not be as significant as Lockey, or the prosecution, would have the jury and/or public believe. The entire cross-examination consisted largely of complicated lines of questioning that criticized the scientific veracity of Lockey’s exhaustive studies.
Bernick first began his cross-examination after the afternoon break by sketching out the Lockey’s study by methodically describing the studies of cumulative fiber exposure. He first criticized the obvious differences in the studies, noting that in the first study, less than 1 fiber year of concentration would have been no different than the community in general, but in the second study, exposures of less than 1 fiber year were included. In this same vein, Bernick asked several questions of Lockey in an attempt to show that several participants in the study apparently had pleural disease at a level no greater than the exposure of community members–although, according to the the defense, these were not statistically significant, a fact that, if true, would undermine the community exposure argument.
Bernick, through Lockey, criticized several other “wrinkles” in the study. One of these “wrinkles” was that, when all the variables were considered, only the highest quartile of exposures showed what Bernick termed a “scientifically significant” deviation from the baseline of Lockey’s study. Other limitations of the study involved the participants themselves. These alleged problems were twofold: Lockey’s study did not consider the overtime of Libby mine workers, and many of the workers in both studies dropped out between the first and second study—some because of the precise medical problems the studies were designed to measure (in other words, the second study actually underestimated the sickness of the Libby miners included in the first study). Still other problems resulted from an allegedly disproportionate exposure at the beginning of the study (which Lockey did not validate through his testimony, but the defense alleged in its leading questions), and difficulties in measuring the exact exposure through inadequate measuring instruments during the initial sampling.
Although it may seem counterintuitive to allege that the asbestos exposures in Lockey’s study were “front-loaded” during Grace’s ownership of its Libby property, the defense may be trying to establish that the lion’s share of the exposure of Grace employees occurred prior to the enactment of the criminal provisions in the Clean Air Act, and Grace continued to improve the safety of its property and products–and allegedly, had some success.
At times during the cross-examination, the exchanges between Bernick and Lockey became testy. In one particularly damaging exchange for Grace, Lockey testified that even the very low exposure rates were statistically significant. According to Lockey, at the very lowest rates of exposure—which even Bernick admitted in his cross were the levels the community was exposed to—showed at least 6 times the national average for pleural plaque development in the Libby participants, as compared with the rest of the United States. This testimony was given against the backdrop of suggestions by the defense that no correlation could be shown until a much higher level of exposure that Lockey considered the “mean” exposure rate of plaque development in study participants.
The defense’s cross-examination concluded with questioning from Frongillo effectively showing that the study could not effectively differentiate between tremolite, winchite, and richterite, the latter two of which are not in a NIOSH definition of asbestos provided by the defense, and also represent up to 95% of libby asbestiform material. Lockey responded to this line of inquiry by noting that any hard fibrous material lodged in the lung could easily cause pleural disease.
During approximately the last 30 minutes of the afternoon, the prosecution began and ended its redirect of Lockey. Despite the prosecution being overruled on the vast majority of their objections during cross, the objections of the defense were sustained on redirect nearly every time they were made, for various reasons, including: leading; form of the question; relevance; and testimony outside the scope of the witness’ expertise. Despite the extreme constraints placed on the prosecution, they were able to ask enough questions to conclude their redirect by the end of the day.
The trial will resume tomorrow with a full day of prosecution witnesses, as the prosecution nears the conclusion of its case in chief.
Michael Doggett, Posted at 12:15 A.M.
Government witness James Lockey’s testimony concluded Wednesday afternoon after a confusing and forceful cross-examination by defense attorney’s David Bernick and Thomas Frongillo, both of whom called into question the Ohio physician’s studies of O.M Scott workers asbestos exposures.
Ultimately, Lockey’s studies (first in 1980-81 and then again 25 years later), which looked at hundreds of workers at the O.M Scott plant, established the particular toxicity of tremolite fibers as well as the relationship between dose and disease.
Mel and Lerah Parker, both previous government witnesses, were present during Lockey’s cross-examination. At one point Lerah had to excuse herself from the courtroom after coughing incessantly, grabbing an inhaler from Mel on her way out.
Throughout his cross-examination, Bernick attempted to point out the bias in Lockey’s studies, discussing the way in which patients were divided into four quartiles depending on factors such as CFE (cumulative fiber exposure), age and body mass indicators. Bernick said this approach skewed the study since the fourth quartile represented the highest numbers of exposed workers and was the only one that showed a significant difference.
Bernick also stressed that a significant number of workers originally a part of Locke’s study dropped out, likely the ones who knew they weren’t sick and didn’t bother being a part of such a study. Bernick said this also distorted the results.
Following Bernick’s part of the cross-examination, Thomas Frongillo approached the stand as Molloy reminded him not to “plow through” material.
“I won’t plow through any of the material that Mr. Bernick touched,” Frongillo said, gaining laughs from the jury.
Not wasting any time, Frongillo dove into his questioning, referring to an article written by Lockey in 1983 (revised in 1984) in which environmental sampling of work areas at the O.M Scott plant revealed airborne “fibrous tremolite.” In a second article, written 25 years later, Lockey left out “fibrous tremolite” in the title because of “cumulative fiber exposure.”
After establishing that Lockey is neither a geologist nor a mineralogist, Frongillo discussed the OSHA definition of asbestos which doesn’t include winchite and richterite. These two forms – both of which are unregulated by OSHA – make up 95 percent of Libby’s asbestos fibers.
“There’s a major limitation in your article,” Frongillo said.
Lockey responded by saying that “if it (asbestos fiber) gets in your lungs it is potentially hazardous, whether it’s regulated or not regulated.”
Following a few quick re-direct questions from McLean, almost all of which were objected to and sustained, Molloy dismissed Lockey from the stand, reminding him not to discuss his testimony with anyone until after the trial is over.
With nine government witnesses scheduled to take the stand tomorrow, Molloy told the jurors “we are getting toward the end of the government’s case.”
As always, Molloy reminded the jury not to read any news accounts or investigate the case on the Internet. “This case is probably on Facebook,” he said, drawing his usual end-of-the-day laughter. “Just stay away from it.”
Court is in recess until 8:30 Thursday morning, when nine government witnesses will take the stand. “Now I’m getting out of here,” Molloy said.
– Chris D’Angelo (posted 8:55 p.m.)
Physician James Lockey testified Wednesday afternoon about a pair of studies examining symptoms of asbestos exposure in workers at an O.M. Scott plant in Marysville, Ohio. The plant used Libby vermiculite in its gardening products. Under direct examination from prosecutor Kris McLean, Lockey testified that some of the workers suffered localized plaques, diffuse thickening and bloody effusion in the linings of their lungs, even at the relatively low doses seen at the Scott plant.
The first study looked at chest x-rays of workers in 1979 and 1980, the year the plant stopped using Libby vermiculite. The second looked at the same group of workers in 2004 and 2005, excepting those who had died in the interim.
The studies established, possibly for the first time in medical literature, the particular toxicity of tremolite fibers as opposed to other forms of asbestos. Lockey attributed that extra toxicity to several factors, especially the shape of the fibers, their tendency to splinter into multiple fibers and their durability in lung tissue, which he claimed exceeded that of chrysotile asbestos, by far the more common type. The studies also established a strong relationship between the dose of fibers and the likelihood of disease.
“[Tremolite fibers] have a long residence time – they get in your lung and they stay there,” Lockey said. “One fiber may deposit in your lung, but over time it may get thinner and thinner, splitting longitudinally. You may inhale one tremolite fiber and end up with a hundred in your lung … the longer someone works in the work site, the more likely they are to have a disease.”
Lockey also testified that Grace knew about the results of his study in 1982. He presented his findings at a conference attended by Dr. Julie Yang, a chemist employed by Grace at the time, and was subsequently invited to present his findings at Grace headquarters in Cambridge, Mass., at a meeting called by defendant Jack Wolter.
Though the prosecution asked him, Lockey was not permitted to talk about any discussion with Grace employees of a possible study at Grace’s Libby mine or mill sites. Lockey was interested in doing such a study because of the higher exposure rates expected at those sites compared to the O.M. Scott plant. He wanted to see if his original study was “really showing what I think its showing,” Lockey said.
In 2004, when he conducted a follow-up study of the same O.M. Scott workers, Lockey found that many more of them had symptoms. Among living workers who agreed to participate in the second study, an average of 28 percent had developed noticeable changes on their chest x-rays. Those who had higher occupational exposure to the fibers had much higher rates of disease, but all workers had elevated rates relative to the general population.
“A relatively low cumulative exposure to this particular fiber is a definite risk factor,” Lockey said. “Whatever is going on in the lungs … continues after exposure ceases.”
Defense attorney David Bernick, taking up cross-examination of Lockey, spent some time diagramming the various parts of the lung and discussing the nature of changes to the lung and related tissues described in the study. In a lighter moment, Bernick apologized for a poor illustration. Lockey replied saying, “Michelangelo, you are not,” to chuckles from the jury.
–Daniel Doherty (posted at 4:32pm)
The government questioned two new witnesses this morning, Mark Owens, founding owner of Kootenai Development Corp (KDC), and Dale Cockrell, Kalispell attorney for KDC. Owens testified that KDC was created by Mark Owens and his father “Lum” Owens in order to purchase property from Grace in 1994 for both logging of timber and for development. KDC bought the mine site, the flyway and the bluffs from Grace. Owens’s testimony this morning provided the explanation for the naming of the sites “the bluffs”, and the “flyway”. Owens testified on cross from Lancaster that he was the one who named these sites; the bluffs because the property is 30 – 40 feet above the Kootenai River providing great views, and the flyway because it is a migration corridor along the Kootenai River for geese and ducks.
McLean questioned Owens on direct, asking about why KDC bought the property (answer: for the trees), and why they sold it back to Grace (answer: because of fears about liability after EPA came to town). McLean introduced exhibit #635, the 2000 Stock Purchase Agreement between KDC and Grace. McLean asked about the general terms of the agreement, and Owens testified that Grace would purchase three quarters of the stock of KDC and thereby once again own the mine site, the flyway and the bluffs. McLean asked about little else, and the most coherent of Owens’s testimony came on cross.
Carolyn Kubota did the first cross examination of Owens, and walked the jury through his testimony on direct, laying everything out in a clear, sequential manner for the jury’s benefit. Kubota led the jury through the formation of KDC by Owens and his father, the point at which Jack Wolter became 49% owner (leaving Mark Owens as 51% owner), and Wolter’s relationship to Grace at the time. Kubota elicited that Wolter was not on good terms with Grace, and laid the foundation for a lack of cooperation or collusion between Wolter and Grace. Testimony was related to Wolter’s love of the property (“naïve and romantic” as characterized by Owens), his desire to build a house on the flyway property next to the Parker’s property, and his resistance to selling interest in KDC to Grace. The sale ultimately went through because it was what Owens wanted and he held 51% interest.
After break, Grace defense attorney Lancaster performed cross of Owens asking about Alan Stringer’s behavior in initially showing Owens around the properties. Owens testified that Stringer pointed out what tremolite looks like, “educating [Owens] out of concern for his well being.” Lancaster focused on the safety of the sight as evidenced by Montana State DEQ and Lincoln County officials’ awareness of the environmental condition of the properties and their lack of concern about the sale of the properties to KDC.
The government’s next witness was Dale Cockrell, Kalispell attorney representing KDC, Wolter and Owens for the stock purchase agreement. His testimony was quite short with two pieces of evidence showing wire transfer information pertaining to the sale not allowed into evidence due to sustained objections of relevance. There was no cross.
Right before the break for lunch McLean called Dr. James Lockey and walked him through his credentials as an expert witness in occupational and environmental lung disease, and his certification as a B-reader, therefor qualified in the classification of chest radiographs for pneumoconiosis (dust induced lung disease) by OSHA. After lunch, direct of Dr. Lockey will continue.
–Janet Harrison (4:15 pm)
After lunch, Assistant US Attorney Kris McLean spent the remainder of his direct examination on Dr. Lockey’s studies of OM Scott’s workers. Dr. Lockey testified that he conducted two studies of OM Scott workers, the first in 1980-81 and the second, twenty-five years later.
In a confident and measured manner, Dr. Lockey made several important points for the prosecution. The first was that his 1980 study revealed that low doses of exposure to Libby asbestos contaminated vermiculite—even for young workers—caused asbestos related changes in the workers’ lungs. Dr. Lockey testified that the vermiculite that OM Scott’s workers were exposed to was predominately Libby vermiculite. Dr. Lockey testified that this was an unexpected and important finding that had not been seen before in scientific literature.
The second significant point the prosecution made with Dr. Lockey’s testimony related to WR Grace’s knowledge of the dangers of the Libby vermiculite. Dr. Lockey testified that he presented his findings from his OM Scott study at a conference in 1982. At that conference, Dr. Lockey met WR Grace scientist, Julie Yang. Later, Jack Wolter appears to have organized Dr. Lockey to present his findings to WR Grace at their Cambridge offices. While this all occurred prior to the enactment of the criminal provisions of the Clean Air Act (1990), the prosecution seemed to use this to further demonstrate that WR Grace, and its executives, knew of the dangers of the Libby tremolite asbestos.
Third, Dr. Lockey emphasized the dangerousness of Libby tremolite asbestos. He stated that dangerousness (toxicity) of asbestos is a function of three things: dose, durability, and fiber dimension. Libby asbestos causes negative outcomes at low doses, it has very high durability, and its fiber composition is longer and thinner and it breaks apart in the lungs in ways that produce more fibers. According to Dr. Lockey, one fiber of Libby tremolite asbestos inhaled into the lung can break apart into up to one hundred fibers.
Finally, Dr. Lockey discussed his second study of OM Scott workers. According to Dr. Lockey, the significance of the longitudinal study was that 25 years after the exposure ended, the workers had very high rates of pleural changes in their lungs. This was true, even at very low fiber exposures. Dr. Lockey’s second study was published in 2005, so it would not be part of WR Grace and its executives knowledge about the dangers of Libby asbestos.
– Andrew King-Ries (posted 4-15; 3:45 p.m.)
When the Owens family bought 3,600 acres next door to W.R. Grace’s vermiculite mine in 1994, they got a lot more than just the timber they wanted to harvest. They got veins of asbestos in the ground, regular visits from government agencies and their very own air quality tests.
The Owens family formed the Kootenai Development Corporation after buying the property outside Libby. Government witness Mark Owens oversaw logging on the property and reclamation of former mine sites. Owens later sold KDC stock to W.R. Grace and former Grace executive Jack Wolter. On cross-examination, the defense attempted to show that Grace warned Owens of the presence of tremolite asbestos, that Grace did not conspire with Wolter on the sale of KDC stock and that the government, unlike Grace, took no action to warn Owens about the tremolite.
“Grace was open and candid with you about the health risks associated with tremolite asbestos, weren’t they?” asked defense attorney Mark Lancaster. Owens agreed.
Former Grace executive Alan Stringer, a defendant in this case until he died at the age of 62 on Feb. 24, 2007, worked closely with Owens at former mine sites on KDC property. Lancaster asked Owens about Stringer’s advice and involvement.
“He was educating you about tremolite asbestos and how to deal with it,” Lancaster said. “He had enough of a concern to educate you and help you learn about it.”
Owens said that Stringer was helpful, but that he may have failed to communicate the dangers of tremolite. “I went away with the impression it was safe to be on the mine,” Owens said.
But Lancaster pointed out that Stringer was honest with Owens and that if he underestimated the health risks of breathing tremolite, it was not intentional. “His actions were consistent with his words,” Lancaster said. “Isn’t it true that he [Stringer] even brought his daughter up to work at the mine during the summers?”
Owens said he thought that was true.
Montana Department of Environmental Quality was monitoring the air on Owens’ property, and Lancaster wanted to know if they ever warned him about tremolite. Owens said that DEQ told him to stay away from “protected areas” that contained veins of naturally occurring tremolite. DEQ was monitoring the air at several sites on Owens’ property, including Rainy Creek Road, which accessed the mine, and told him that if he avoided these areas, there would be no need for further air monitoring or precautions.
Attempting to show that DEQ did not disclose all of their information on the site to Owens, Lancaster asked, “Do you recall air monitoring results from 1990 and 1991 that showed tremolite concentrations were low?”
Owens said he did not remember seeing those results. Lancaster also asked him, “Were you ever instructed by the county or the state to take special protective measures along Rainy Creek Road?”
Owens said he received no such instructions from either the state or the county on controlling the dust along the road. Rainy Creek Road is the only access to Grace’s former mine and is alleged to have been a source of asbestos-contaminated dust. KDC log trucks used the road to access the logging sites near the mine.
Lancaster then asked Owens about the arrival and involvement of the Environmental Protection Agency. Owens said that he gave EPA access and that the agency wanted to dump mine waste on his property. He also wanted a release of liability to protect him from future law suits. It was difficult to deal with EPA, Owens said.
Dale Cockrell, an asbestos lawyer from Kalispell, Mont., followed Owens’ testimony. Cockrell was instrumental in negotiations between Owens, Wolter and Grace regarding the transaction of KDC stock. Cockrell was responsible for securing money owed to Owens.
On cross-examination of Cockrell, defense attorney Carolyn Kubota attempted to show there was no conspiracy between Wolter and Grace. “Did Jack [Wolter] do or say anything that suggested he and Grace were in concert with each other?” Kubota asked. And Cockrell said no.
The final government witness of the morning was James Lockey, an environmental health professor at the University of Cincinnati and a pulmonary physician. McLean began his direct examination of Lockey by establishing the physician’s expertise and experience.
– Will Grant (posted 2:15 p.m.)
A juror required a wake-up call from the court this morning, and it’s possible that the prosecution has finally received theirs. Government attorney Kris McLean said that they had considered some defense objections, reshuffled their witness list and would probably wrap up their case by Tuesday.
Court was delayed for almost an hour because a juror slept through his alarm. While Molloy waited, he asked the attorneys if there was any business. McLean told the judge that, due to objections of cumulative evidence, the government decided not to call Dr. Chris Weis, which would shorten their schedule significantly. Grace attorney David Bernick uncharacteristically did not object to any of McLean’s statements about the rest of the witnesses to come. Molloy said, based upon this new schedule, it was likely that the prosecution would be done by Tuesday, and the defense would have the rest of that week to prepare their case. Court is expected to be in session only Monday and Tuesday next week.
Once the jury filed in, the government called Mark Owens to the stand. Owens was at one time the major partner in the Kootenai Development Corporation, which purchased the mine properties in Libby, Mont., from W.R. Grace in 1994. Owens told how his father, Galen “Lum” Owens, was interested in the property for its timber. The senior Owens owned a lumber mill, Owens and Hearst, in Eureka, Mont., and regularly purchased timber rights or property. Owens himself was an independent logging consultant, which means his business could harvest timber for anyone who needed it. His company was Owens Ventures.
The senior Owens was the point man during property negotiations, according to Owens, and dealt with Alan Stringer and Jack Wolter. They went on tours of the property and Stringer gave a general explanation of vermiculite and the associated tremolite. Owens said Stringer mentioned that “the mine site was safe unless it was disturbed in an inappropriate manner.” Following this, Owens said he did some research into the mine and vermiculite because he was concerned about liability issues but he was also attracted by the chance to get some business working on the reclamation. In order to buy the property, Owens said he and his father formed the Kootenai Development Corporation.
At this point, McLean showed a few purchasing documents from 1994 containing the signatures of Lum Owens and Robert Bettacchi. Owens said the clinching aspect of the deal was that Wolter agreed to become a partner in the corporation. Owens and his father felt that Wolter could be liaison between the corporation and the state of Montana during the reclamation, even though Owens felt that the state was comfortable with the way the reclamation was going. Owens described walking with Wolter around “the meadows” adjacent the screening plant property, which he called “the fly-way,” and seeing piles of vermiculite. Before the property was sold, he graded over the piles and covered them with fill that he got out of the gravel pit up Rainy Creek Road.
Owens said he became concerned about the property in 1999 when he received the first notice from the Environmental Protection Agency and met with Paul Peronard shortly after. He said Peronard was initially confused about the situation but eventually recommended that Owens sell the property back to Grace. Owens tried to talk to Grace about liability but didn’t get much response. He decided to sell the corporation but had to put pressure on Wolter to sell. Initially, Grace agreed to buy 100 percent of the corporation, but near the end, changed the agreement to only two-thirds of the company. Grace sealed the deal in 2000.
While Owens owned the mine property, he said he did not bar the EPA from access; he just asked that they close the gate. But once Grace owned the corporation, they locked the gates to the EPA. Wolter’s attorney, Carolyn Kubota, pointed out that Wolter had nothing to do with that since Wolter joined Owens “in doing everything he could do to cooperate with the EPA.”
In an effort to distance her client from the conspiracy charge, she repeatedly said Wolter loved the property and she pointed out that he encouraged good forestry practices and that he didn’t want to sell the property and wanted to build a house on it. Wolter wasn’t an employee of Grace when he was contracted to help sell the property. Kubota confirmed with Owen that Wolter didn’t show any concern about vermiculite while walking around with Owens. Owens clarified that Wolter did warn him that he shouldn’t disturb the vermiculite.
Kubota then said she had nothing more since Grace attorney Walter Lancaster would have questions about the vermiculite. Molloy took this opportunity to recess the court.
–Laura L. Lundquist (posted 1 p.m.)
The start of court this morning was delayed by about 45 minutes because a juror overslept. Judge Molloy stated that if everything goes as planned the Government’s case will conclude on Tuesday of next week. Once the juror who overslept arrived, the Government called Mark Owens to the stand. Mr. Owens was the majority owner of Kootenai Development Corporation (KDC). KDC purchased the mine property from Grace in 1994. Mr. Owens testified that he and his father, Lum Owens, purchased the mine for reclamation purposes and to harvest the timber on the property. Prior to purchasing the mine Mr. Owens toured the site several times. He testified that Mr. Stringer told him that tremolite could be hazardous when it became airborne. Mr. Owens stated that Mr. Wolter became involved in the sale and was ultimately given a 49% interest in KDC because of his familiarity with the site and expertise in mining. Mr. Owens also discussed the use of Rainy Creek Road. He testified that Rainy Creek Road was used to access harvested timber by KDC and that on average there were 300-400 truckloads per year for 5 years.
Mr. McLean introduced a number of Government exhibits relating to the sale of the mine site between Grace and KDC without objection from the defense. First, the purchase-sale agreement between Grace and KDC was admitted (Government Exhibit 614). Second, a certified copy of the quitclaim deed for the mine site was admitted (Government Exhibit 616). Third, a certified copy of another quitclaim deed relating to the mine sale was admitted (Government exhibit 615). Fourth, a certified copy of a document entitled “Limited Warranty Deed” was admitted (Government exhibit 618).