April 20, 2009
Below are all blog posts file Monday, April 20, 2009, in reverse chronological order. Read from the bottom up.
Dr. Lemen says there is an imminent risk of exposure, and Judge Molloy hints about how he might rule on some of the defense motions to exclude testimony.
At promptly 3:00 p.m., prosecutor Kevin Cassidy got to the main theme of his direct examination of Dr. Lemen. When Cassidy asked if he had an opinion about whether there was an imminent risk of exposure Dr. Lemen said yes. David Bernick promptly objected for lack of foundation, but the objection was overruled and Dr. Lemen was allowed to assert that there was an imminent risk of exposure in Libby.
Dr. Lemen added that people may be exposed from a variety of sources including their gardens. Speaking directly to the jury, Dr. Lemen explained, â€śThe more pathways they are exposed to, the greater the accumulation will be in their body.â€ť
Bernick began cross examination of Dr. Lemen after the 3:00 p.m. recess accompanied by 2 dry erase boards. Cross examination quickly became argumentative with Bernick repeatedly interrupting Dr. Lemen and Dr. Lemen giving numerous nonresponsive answers. On several occasions Bernick asked Dr. Lemen if he knew specific dates and figures from studies he had cited during his direct examination. Rather than answering â€śyesâ€ť or â€śnoâ€ť Dr. Lemen continuously asserted that his testimony was â€śnot a memory contest.â€ť
At one point Dr. Lemenâ€™s nonresponsive answers were so lengthy and off topic that Bernick asked Judge Molloy, â€śPlease stop the witness.â€ť Molloy responded, â€śYou are here as a witness, not a lawyer. I donâ€™t want to have to intervene with every single question. If you want to be a lawyer go to law school.â€ť Several of Dr. Lemenâ€™s nonresponsive statements were stricken from the record.
After redirect Judge Molloy asked the government if it had any more witnesses. Kris McLean responded that it might, but asked that the topic be taken outside the presence of the jury. After the jury was allowed to leave the courtroom, McLean explained that Robert Locke was available to testify and the government was still seeking clarification from the defense on whether it wanted to continue to cross examine Locke. McLean also added that the government needed to know about the status of several of the defenseâ€™s other motions before it could make the final determination of whether to close its case.
Judge Molloy conceded that there were still unresolved issues and that he was working on them; however, he added that more motions were filed by the defense at 9:15 Sunday night.
Regarding Lockeâ€™s testimony, Bernick conceded that no matter what the outcome of its motions to exclude testimony, Grace did not want Locke back on the stand under any circumstances. Bernick explained, â€śGraceâ€™s position would be that we would have Lockeâ€™s testimony stricken because it is tainted.â€ť The rest of the defense attorneys present unanimously agreed that their clients did not want to see Locke back on the stand. Bernick explained that Grace had not filed its most recent motion regarding Locke although it still intends to do so.
McLean responded on behalf of the government that it would still like to re-direct Locke. Judge Molloy admitted the need to address the issue but concluded that it could not be resolved today.
Before bringing the jury back into the courtroom Judge Molloy explained how he was leaning with regards to the motions to exclude the testimony of Dr. Miller and Dr. Whitehouse. Judge Molloy suggested Dr. Millerâ€™s testimony would probably stand. Regarding Dr. Whitehouse, Judge Molloy explained that he did not intend to strike all of Dr. Whitehouseâ€™s testimony although the projections made by Dr. Whitehouse that were not based on science probably would be stricken. Judge Molloy did not commit to his statements or actually make any kind of ruling but McLean thanked Judge Molloy for the insights.
Before the jury filed back into the room Bernick informed the court that Grace also intended to file a motion to strike the testimony of Dr. Lemen not related to epidemiology.
The jury was read the long jury instruction at the end of the day which directs the jurors to avoid discussing the case or doing any research about the case. The long jury instruction was chosen because it is unclear as to whether the jury will be needed tomorrow afternoon. If the jury is not called in tomorrow afternoon, the next time it will be present will be April 28th.
â€“Paul Nicol (posted 9:15 pm)
A series of increasingly testy exchanges was eventually interrupted by a rebuke from Judge Donald Molloy, as defense attorney David Bernick cross-examined government witness Dr. Richard Lemen on Monday.
Bernick began by pointing out that Lemen was receiving $350 an hour for his testimony, $50 less than his usual rate.Â Bernick characterized this as a â€śgovernment discount.â€ť
After reviewing Lemenâ€™s experience testifying as an expert witness in asbestos lawsuits, Bernick questioned Lemen about when he had last read a pair of epidemiological studies examining various aspects of the public health crisis in Libby.Â When Lemen said that it had been several months since he had read them, Bernick responded with incredulity bordering on shock.
â€śYouâ€™ve got two studies to read, but you were too busy,â€ť Bernick said.
â€śIâ€™ve got a case in my office this long,â€ť Lemen said, gesturing with his arms spread out as he referred to the massive quantity of documents related to the trial.Â â€śI was not proffered just to talk about two studies.â€ť
Bernick began to ask Lemen another question when Lemen interjected.Â â€śIâ€™m ready to talk about those studies any time you want to,â€ť Lemen said.
Bernick responded by asking Lemen about the cutoff date of one of the studies.Â â€śI cannot remember everything,â€ť Lemen said. â€śShow me the studies and Iâ€™ll look at that and we can show it to the jury.Â Iâ€™m not going to play a memory game with you.â€ť
Eventually, Bernick asked Lemen about a third study by the Agency for Toxic Substances and Disease Registry examining mortality rates in Libby.Â Bernick asked Lemen if he had read this study over the weekend.
â€śYes,â€ť Lemen said.
â€śOh good, so that one is fresh in your mind,â€ť Bernick said.
â€śSir, I am not as good as you apparently because I donâ€™t remember everything without having it in front of me,â€ť Lemen replied.
â€śI apologize.Â I was being a little flip on that and I apologize,â€ť Bernick said.
Going over some of the details of the study, Lemen repeatedly responded to Bernickâ€™s questions by demanding to see the study and have it displayed to the jury, a concession Bernick apparently did not want to make.
In a later question, Bernick stated that Lemen had â€śusedâ€ť one of the studies in previous testimony, and then asked him if that was true or false.Â Lemen replied saying, â€śI donâ€™t know what you mean by used and I donâ€™t want to play a word game with you.â€ť
Examining a part of one of the studies that used data from higher exposure levels to extrapolate mortality risk at lower exposure levels, Lemen took issue with Bernickâ€™s line of questioning again.
â€śYes, if you can get the data itâ€™s best, but waiting until the data comes in is like waiting to count dead people,â€ť Lemen said.
The statement was stricken from the record as unresponsive.Â After this, the exchanges became increasingly tense as Bernick and Lemen repeatedly interrupted each other.Â Lemen accused Bernick of misrepresenting the facts, mixing apples and oranges, and cutting him off.Â Finally, the judge stepped in.
â€śStop,â€ť Molloy said, interrupting both Lemen and Bernick at the same time.Â â€śIâ€™ve heard just about enough argumentâ€¦ youâ€™re here to be a witnessâ€¦ I donâ€™t want to have to intervene with every single question.Â If you want to be a lawyer, go to law school.â€ť
Bernick, now satisfied, asked only a few more questions, to which Lemen gave short answers.
On redirect, prosecutor Kevin Cassidy asked Lemen about details of a few of the studies that Bernick had mentioned, and asked Lemen to talk about a pair of recent studies from France and Germany examining mesothelioma rates in relation to asbestos exposure.Â In the end, Lemen testified that there is no safe exposure to asbestos.
â€śWe canâ€™t identify a dose below which some people wonâ€™t be at risk of developing mesothelioma,â€ť Lemen said.
Then, with the jury out of the room, the judge and the lawyers hashed out some of the issues that remain from previous testimony.Â Molloy has not made a decision about whether to allow government witness and former Grace executive Robert Locke to return to the stand, whether Lockeâ€™s testimony will be stricken from the record, or whether some or all of the charges will be thrown out.
Molloy indicated that the testimony of Dr. Aubrey Miller will stand, but some of Dr. Sheldon Whitehouseâ€™s testimony will be struck â€“ specifically projections related to his â€ścommon senseâ€ť as opposed to his scientific testimony.
Bernick informed Molloy that he would be filing a motion to strike all of Lemenâ€™s testimony where he was not talking about epidemiology.
After that, Molloy brought the jury back into the room to let them know that they might not be needed in court tomorrow, but they should call in around 11:00 am to find out for sure.Â After tomorrow, court is scheduled to be in recess until next Monday, while Molloy leaves town to see his sonâ€™s graduation from flight school.
â€śIâ€™ll see you when I get back, and when I get back weâ€™ll have at least one more naval aviator,â€ť Molloy said.
Court is in recess until 9:00 a.m. Tuesday morning.
â€“Daniel Doherty (posted at 7:40pm)
On Monday afternoon Kevin Cassidy called Dr. Richard Allen Lemen as an expert witness for the prosecution. During direct Dr. Lemen indicated that he was a retired epidemiologist for the United States Public Health Service and he was present to testify on behalf of individuals with diseases attributed to asbestos. Judge Molloy corrected Lemen, stating that he was actually present to testify on behalf of the government.
In an attempt to lay foundation for Lemenâ€™s testimony, Cassidy questioned Lemen about his education, experience, publications and general duties. Cassidy tried to illicit testimony from Lemen as an expert in epidemiology and an expert industrial hygienist. After repeated objections from Grace defense attorney David Bernick regarding questions about industrial hygiene, Judge Molloy dismissed the jury to discuss the matter with counsel. Bernick argued that Lemen may testify about epidemiology, but he is not qualified to testify as an expert on industrial hygiene. Cassidy argued that he could lay the proper foundation to show that Lemen is also an expert in industrial hygiene. Judge Molloy quickly resolved the matter by telling Cassidy that the Government only disclosed Lemen as an expert in epidemiology so they do not get to offer him as an expert industrial hygienist, â€śperiod.â€ť
The jury returned and Cassidy continued with his direct examination asking Lemen questions about epidemiology. Lemen explained that the task of an epidemiologist is to go to an area where people are getting sick and try to determine why they are getting sick. According to Lemen the basis of all disease is based in the action of material and what it does to cells in the human body.
When asked about his expert opinion regarding the danger of exposure to vermiculite, Lemen testified that exposure to vermiculite is an asbestos related disease. Asbestos related disease is a dose response disease which means that the higher the exposure, the higher the risk of getting the disease. Lemen stated that when fibers are respirable, as they are with asbestos, then the risks start adding up and become cumulative. When asked about Libby in specific, Lemen testified that as long as there is potential for exposure to asbestos in the community, then there will be a substantial risk to the individuals in that community.
-Shannon Foley (5:00 p.m.)
The testimony of Greg Meeker, a geologist with the USGS, primarily dealt with the definition of asbestos. For the prosecution, the goal of the direct examination was to show that the definition of asbestos should be far-reaching. In contrast, the defense focused on single crystals and the colors therein. A secondary argument presented by the defense, of glacial melt and flow, attempted to establish another way in which asbestos was spread throughout Libby.
Prior to morning recess, Kris McLean showed â€śrocksâ€ť (or â€śfiberâ€ť samplesâ€”depending upon which party discussed the samples) which were collected from Libby. These were mere pieces, culled from one to two kilogram samples taken from Libby. The color of the â€śrocksâ€ť shown to the jury was â€śgray,â€ť and it was color that became the focus of Thomas Frongilloâ€™s cross-examination of Meeker.
Frongillo first revealed the types of amphiboles found in Libby. According to the testimony, an amphibole is a silicate which is not combustible. The data presented revealed that in the sample taken from Libby, 84% of the amphiboles were winchite, 11% were richterite, and 6% were tremolite (which adds up to 101%; the result of rounding to whole numbers). Frongillo then used seven learned treatises (FRE 803(18)) to scientifically establish the color of winchite and richterite crystals. All of the treatises established that winchite was blue or pale to blue. While these same treatises stated that richterite was yellow, brown, red, or pink. Frongillo focused on the fact that none of the treatises mentioned gray for winchite and richterite. In contrast, the treatises all referred to tremolite (or asbestos) as being gray.
The rest of Frongilloâ€™s cross-examination then revealed that none of the government regulations included winchite and richterite under its definition of asbestos. The regulations and statutes only mention or reference â€śgray silicate.â€ť Frongillo made this argument for two reasons. First, the implication of Frongilloâ€™s argument was that 95% of the amphiboles in Libby are not regulated by the EPA. Such an argument provides another attack on the EPA and their regulatory practices. Second, Frongillo probably used this strategy to undermine Meekerâ€™s research and journal articles which advocated using a broader definition of asbestos and to regulate a greater amount of amphiboles than are presently being regulated.
Scott McMillin followed Frongillo. His cross-examination of Meeker dealt with glacial melt/flow and how it likely caused amphibole forms to settle in the Libby valley. While interesting, during the cross-examination Meeker interrupted to say he was not an expert on these matters. McLean provided constant objections, most successful, to the scope of McMillinâ€™s cross-examination (FRE 611(b)) and the constant lack of foundation.
Both of the defenseâ€™s legal arguments appeared to have flaws. Frongilloâ€™s references to amphibole color were relegated to â€śsingle crystal analysis.â€ť When there are multiple crystals involved in the analysis, such well defined color limits are not as easy to make. According to Meeker, even single fibers can change from one amphibole type to another along the length of the fiber strand, therefore making color analysis even more difficult. As for McMillinâ€™s legal argument, while the glacial flow may have resulted in asbestos settling into Libby valley, the fact that there was some natural reasons for asbestos occurring does not overcome the anthropogenic (human-based) ways in which asbestos was spread throughout Libby.
â€“ Christopher Orman (posted 5:31 pm)
According to government witness Richard Lemen, asbestos exposure posed an imminent risk to the residents of Libby, Mont. Because the mineralâ€™s needle-like fibers build in a personâ€™s lungs over time, Lemen said that the more asbestos one inhales over time, the more they are pushed toward disease, thus exposure poses an imminent threat.
â€śAsbestos related disease is dose-response relatedâ€¦that is, the higher the exposure, the higher the risk of getting a disease,â€ť Lemen said. â€śThe risk is how much a person takes into their body. As their body accumulates these indestructible fibers, thatâ€™s when we see disease.â€ť
Lemen was allowed to testify Monday only as an expert epidemiologist after Judge Donald Molloy ruled that the prosecution could not also offer him as an expert industrial hygienist because they did not previously disclose him as one. Lemen served in the U.S. Army assessing health issues before going on to a decorated career in the Public Health Service, reaching the highest non-politically appointed position in the agency.
After retiring in 1996, Lemen went on to teach public health at Emory University and also work as an epidemiological consultant for legal matters. Lemen said that he charges $350.00 an hour for his services as a trial witness and has made $38,000 in the four years since the government began building their case against W.R. Grace.
Lemen said that his opinion on the threat posed to the residents of Libby was based on his career, education and also time spent reviewing thousands of articles on asbestos exposure.Â Lemen described an epidemiologist as a medical detective, looking into diseases and trying to determine their cause.
â€śWe want to look at where the most concentrated exposure is happening first,â€ť he said. â€śWe go to areas where people have been found to be sick, and we try to determine why theyâ€™re sick.â€ť
Because the community itself did not have a history of sampling and air testing, Lemen said that he looked to the exposure results from Grace facilities and testing conducted by the Environmental Protection Agency during their clean-up efforts in town. Lemen said it is common to look at a wide array of data when forming opinions on exposure because it can be difficult to get sampling results from individuals.
â€śYou would almost have to follow an individual throughout their daily activities,â€ť he said. â€śThatâ€™s something thatâ€™s very impractical to do.â€ť
Lemen said that measurements from monitors connected to EPA workers digging up vermiculite during the clean up could be similar to the exposure that an average citizen might experience while working in their garden, landscaping or digging a well.
â€śYou know that [the EPAâ€™s] digging into the material,â€ť he said. â€śYou can also have extreme types of disturbances in community activities.â€ť
Kyle Lehman (posted 4:30)
Meeker has been analyzing asbestos for 10 years and described it as a grayish mineral, Frongillo, an attorney for defendant Robert Bettacchi, said.
Three types of asbestos exist in Libby, Frongillo said, and mineralogists have only described one type of asbestos â€“ tremolite â€“ as gray. Tremolite makes up five to six percent of the asbestos in Libby, while winchite and richterite form the rest.
Frongillo asked Meeker if he agreed that scientific descriptions of winchite and richterite did not include the color gray.
â€śYes, but those descriptions are referring to single crystals of the minerals,â€ť Meeker said, talking over Frongilloâ€™s next question.
Frongillo also showed a USGS Web site page that defined asbestos as a generic term for six different fibrous minerals. Winchite and richterite were not among those six types.
â€śAre there any federal regulations that say winchite or richterite are forms of asbestos?â€ť Frongillo asked.
Meeker said no, not to his knowledge.
Scott A. McMillin, an attorney for W.R. Grace, also questioned Meeker.
McMillin showed a slideshow that Meeker and his colleagues had prepared about glaciation in Montana.Â Several of McMillinâ€™s questions about the presentation drew objections from government attorney Kris A. McLean. Molloy agreed with most of McLeanâ€™s objections and advised McMillin to lay a better foundation for his points.
McMillin said that the ice and water that used to cover Libby eroded the mountain where vermiculite was mined, spreading the minerals throughout the town. Asbestos in soil can come from human activity as well as natural geological processes, McMillin said.
Meeker took the stand today before a courtroom that was more sparse than usual â€“ the supporting attorneys for the prosecution and the defense were largely absent from their front-row reserved benches.
Â â€“ Carly Flandro (posted 1:31 p.m.)
Â Court began this morning with United States attorney Kris McLean informing the court that it would not be calling two witnesses: Pollan and Oscar Hernandez.Â Further, the parties stipulated to the Government exhibits 557, 558, 559, and 573.Â MacLean then asked the court to take judicial notice of the Ninth Circuitâ€™s definition of asbestos in United States v. W.R. Grace, 504 F.3d 745, 755 (2007) and admit, for demonstrative purposes, two samples of Libby amphibole prepared by expert witness Greg Meeker.Â The defense objected.
Molloy took judicial notice of the definition of asbestos as defined by the Ninth Circuit: Â â€śa fibrous, non-combustible compound that can be composed of several substances, typically including magnesium. Or, as defined by the CAS Registry, and incorporated by reference into Â§ 7412(b), it is a â€śgrayish non-combustible materialâ€ť that â€śconsists primarily of impure magnesium silicates.â€ť Available at CAS Registry number 1332-21-4.
Molloy admitted the two samples for demonstrative purposes, which were encased within a transparent cylinder within a second transparent cylinder and shown on the Elmo projector.Â The defenseâ€™s objection was that the samples were rocks, not minerals, and the distinction would confuse the jury.Â Judge Molloy determined that the defense could clarify any potential confusion on cross examination.
The government called Greg Meeker to the stand.Â Mr. Meeker is a geologist with USGS who has worked for the past ten years with samples of Libby minerals.Â After laying the foundation for Mr. Meeker to testify as an expert, the prosecution introduced an article he had published in the American Mineralogist journal in December 2003, titled â€śThe Composition and Morphology of Amphiboles from the Rainy Creek Complex, Near Libby, Montana.â€ťÂ See Govt. Exhibit 906 or Defense Exhibit 16023.
Mr. Meeker defined amphibole for the jury as a group of minerals that includes 50-60 different individual mineralsâ€¦Â The minerals in that group have a similar crystal group and chemical make-up, though with significant differences in the chemistry of the minerals in that group.
The government tracked through the article published by Mr. Meeker, asking him to explain the methods and results underlying the paperâ€™s contents.Â The paper concluded that most of the respirable amphibole forms of asbestos in the Libby samples found on Vermiculite Mountain would not be categorized under the nomenclature of the current regulatory structure of asbestos.Â The minerals found in Vermiculite Mountain included mostly amphiboles called winchite (84%), richterite (11%), and tremolite (6%). Â The study proposed that, based on the more precise analysis now used, the regulations should include and classify â€śasbestiformâ€ť or â€śfibrous amphiboleâ€ť in its lists.
Tracing the Ninth Circuitâ€™s exact language, US attorney McLean had Mr. Meeker testify that the Libby samples were grayish in color, non-combustible, composed primarily of impure silicate magnesium, and fibrous.Â The examination revealed the difficulty in defining the Libby substance at issue in this trial and the greater difficulty in attaining uniformity of definitions in the scientific, medical, regulatory, and legal realms.
Defense counsel Thomas Frongillo began his cross examination cordially, but quickly shifted to a rapid-fire examination, in which he attempted to portray Mr. Meeker as an egoist and discredit his testimony through the use of the Handbook of Mineralogy, a learned treatise published by the Mineralogist Society of America.Â Frongilloâ€™s attempt to impeach Mr. Meekerâ€™s testimony picked up, with the expert and the lawyer talking over one another, before Molloy instructed them â€śone at a timeâ€ť and shortly after, called the morning recess.
~ by Nick Lofing
Meeker has managed the USGS electron microbeam laboratory since 1989. Meekerâ€™s testimony focused on research he has done regarding Libby asbestosÂ using electron microprobeÂ technology. ThisÂ technology allows researchers to narrow in on a very small portion of a sample, such as the end of a fiber, many times smaller than the diameter of a human hair, to do precise chemical analysis, Meeker said. The EPA wanted to understand the range of minerals present at the mine, so the USGS took 30 different mineral samples for chemical analysis from different parts of the mine,Â he said. A few government exhibits were shown on the television screens during his testimony, including small samples of amphibole minerals that the USGS collected at the Libby mine which â€śabsolutelyâ€ť contained asbestos, Meeker said. Portions of a paperÂ Meeker wrote on the chemical analysis and morphology of amphibole in Libby for the American Mineralogical Journal, one of the top peer-reviewed journals for his field, was also shown as an exhibit.
Meeker said he has been workingÂ with and analyzing asbestos rock and material forÂ about 10 years.Â He estimated that heÂ has had 11 to 12Â peer-reviewed papersÂ regarding asbestos published inÂ journals.Â Meeker graduated from California State University – Los Angeles, with a bachelorâ€™s and masterâ€™s degree in geology. He lives in Evergreen, Colo., and works in Denver. He was orginally hired as a chemist for the USGS but soon took on his current position. He was also the director and president of a microbeam society for a few years, he said.
The prosecution said that Meekerâ€™s testimony is planned to be followed by that of Richard Lemen. The government also announced this morning that two other witnesses who had beenÂ planned to take the stand todayÂ will not.
â€“ Carmen GeorgeÂ (10:56 a.m.)