Feb. 24, 2009
Postings from Feb. 24, 2009, day four of U.S. v W.R. Grace et al, in reverse chronological order — read from the bottom up.
Paul Peronard, a central figure in the Libby asbestos clean-up, came under heavy fire Tuesday afternoon as defense attorney David Bernick attempted to call the EPA’s emergency coordinator’s authority into doubt.
The prosecution called Peronard as an expert witness in risk assessment, and Bernick took up a vigorous and heated examination of Peronard’s credentials. Bernick questioned the witness’s previous experience with asbestos-related risks, citing a 2002 deposition in which Peronard said that before working the Libby Superfund site, he had no experience with large-scale asbestos cleanup. However, reading from the same deposition, Peronard said that he had worked with asbestos in two other locations . As Bernick continued questioning, Peronard became confused at the attorney’s citations. Judge Donald Molloy called for evening recess at 5:00.
Before Peronard took the stand Tuesday, the government called seven witnesses from Libby. One witness, Wendy Challinor, became distraught when discussing her asbestos-related medical conditions. Afterwords, she sat in the waiting room outside the courtroom, surrounded by friends, and quietly cried.
– Nate Hegyi
At about 3:00 p.m. the government called Ron Anderson to the stand. Anderson was the Lincoln County sanitarian in 1999 when the EPA first responded to Libby. Mr. Nelson did the direct examination of Anderson for the government, asking detailed questions regarding a tour of the Grace export plant and mine on Nov. 16-17, 1999 that Anderson went on. Mike Ray, a former Grace engineer in charge of reclamation activities, led the tour. The tour began at the top of the mountain at the mine site and ended at the export plant at the edge of town. Ray explained to Anderson that the export plant had been cleaned out by removing all the hazardous material from the buildings prior to hosing them out. At the time of the tour, the export plant was owned by Mel and Judy Burnett, and their company Millwork West was operating on the compound.
The tour of the former Grace facilities was performed in response to media coverage of the dangers of asbestos in Libby. Anderson was looking for exposed vermiculite ore on the tour, and he testified that he was not expecting to find any vermiculite still on the site. To his suprise, Anderson discovered bags of vermiculite concentrate in one of the buildings which were split open and exposed to the air. The bags had a warning label on them that warned that the material inside contained up to 1% asbestos. This prompted him to return the following day and take five samples from two different buildings within the export plant. The government carefully established the chain of possession for the samples, and asked Anderson about the results he obtained. None of the samples exceeded the 1% safety standard, and Anderson testified that while he was not concerned that the export plant was a health hazard because of the low results, the results were inconsistent with Ray’s description of the cleanup.
About one week after the tour, the County Health Board had a meeting to discuss the results with the concerned citizens of Libby. At the meeting, the board prepared a list of areas that they were concerned could be contaminated with asbestos. The day after the meeting, the EPA arrived. Anderson shared his sample results from the export plant with the EPA and served as a liason between the EPA and the county.
On cross-examination of Anderson, Mr. Urgenson of the defense discussed a letter sent by Alan Stringer to Anderson regarding Rainey Creek Road. The letter referenced air sampling data taken from the Rainey Creek Road area, and the fact that Stringer’s sample results showed the exposure levels in the air to be well below the OSHA safety standard of .2 fibers/cc. Urgenson also discussed the vermiculite material Grace had donated to the county landfill to use for composting. Stringer told Anderson the material contained less than 1% asbestos, so Anderson mixed the material in with the compost and distributed it to the community.
Mr. Frongillo also cross-examined Anderson. He established that the export plant was donated to Libby in 1994, and that Anderson had no idea how the bag of vermiculite he found might have gotten there. He also pointed out that the Burnetts continued working in the export plant for nearly a year after Anderson’s tour.
Paul Peronard was the next witness to testify for the government. He has been an On-Scene Coordinator (OSC) for the EPA since 1990, and was the On-Scene Coordinator at Libby from 1999-2002, and again from 2006-2008. The government asked Peronard extensive questions about his educational and training background, but the defense objected when he began testifying about asbestos and Libby because he was not yet qualified as an expert.
The government discussed Peronard’s training in detail for several more minutes, including that he spends at least 30% of his time training other OSCs and teaches college classes about asbestos sampling, but when he tried to testify about the risk Libby residents faced from asbestos exposure, the defense objected that he was not qualified to discuss risk assessment. The objection was again sustained, and defense counsel was allowed to question the credibility and expertise of the witness.
In the examination of Peronard, the defense repeatedly pointed out that the Libby site was Peronard’s first site where asbestos was the primary hazardous substance, and that he had not read any scientific articles on asbestos prior to responding to Libby. Peronard responded that he had done the standard EPA training on asbestos, and that two prior sites he had worked on dealt with asbestos issues that were not primary. Defense counsel had Peronard read part of his deposition testimony from 2002 regarding risk assessment, and the risk assessment dance continued until 5:00 when Judge Molloy dismissed the jury.
After the jury left the courtroom, the prosecution and defense discussed any issues they had regarding witnesses and exhibits. Of note, defense attorney Mr. Spivak brought up his motion to dismiss the Clean Air Act Knowing Endangerment charges against his clients, and Judge Molloy said the motion was denied without prejudice, in essence leaving the door open for further argument. Mr. Spivak requested a limiting instruction.
Today’s early afternoon testimony consisted of a series of lay witnesses from the Libby area. The government called each in turn to discuss their exposure and familiarity with vermiculite, especially around the Libby sports tracks and Rainy Creek near the mine. The testimony sparked many objections, as lawyers tried to pin down witnesses as to the specific time frame of their testimony. Both sides were rebuffed when trying to enter exhibits into evidence for similar reasons (e.g., relevance). Included in many objections was the phrase, “403,” a phrase probably confusing to a non-lawyer. A 403 objection comes from Federal Rules of Evidence Rule #403. This rules states that, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Fed. R. Evid. 403. Thus, a 403 objection can serve to keep evidence away from a jury if the evidence would be too inflammatory (for any of the listed reasons).
This afternoon, the jury first heard testimony from a Baptist Minister from Troy, MT, who played baseball on the fields and fished with his young children near the screening plant. He testified, using a map, to having seen piles of vermiculite in both locations, although the time frames were somewhat confusing, and during the 1980’s at the latest. He also testified to having an asbestos related illness, although this fact was cast in doubt by the defense with questions about contrary medical evidence when he was cross examined.
The next witness had some difficulty hearing the questions, causing Judge Molloy to invoke his powers under the rules of evidence and allow Mr. McLean to ask leading questions of his own witness (a practice otherwise forbidden). This witness testified that his wife died of some sort of cancer, but he could not say what sort. He also testified that his house in Libby used to have asbestos raining from the ceiling down onto his washing machine and dryer. The difficulty in his testimony led to several late objections by the defense, causing a few minor details (such as the dollar amounts of past settlements) to be stricken from the record. His testimony also warranted a special instruction to the jury stating that asbestos releases within a home are NOT “releases” into the “ambient air” for the purposes of this trial.
The next two witnesses had both grown up in the Libby area and seen vermiculite in the area, especially on the Rainy Creek road (where they had both gone to hunt and to attend parties). They also testified that they had lung-related ailments. The second of these witnesses vividly expressed having watched vermiculite dust come off of the trees near the road, especially when a logger would fell a tree. As before, the cross examination of these witnesses focused on the witnesses’ possible ambiguities regarding timelines, as well as on casting aspersions on the witnesses’ understanding of their own lung-related illnesses.
The final witness of the early afternoon, Ron Anderson, used to work as the Director of the Environmental Health Department in Libby. He worked many years ago as a laborer for Grace, for around six months. His testimony piqued my curiosity, as he received a letter from Alan Stringer in 1992 regarding air quality samples from 1992. Unfortunately, the court called a recess as soon as the prosecution succeeded in introducing this letter into evidence, and I had to pass the torch on to a colleague.
- Mark Lancaster
The prosecution continued its examination of witnesses this afternoon, calling to the stand current and former Libby residents familiar with the Libby vermiculite, the accompanying dust and the diseases it causes.
Cameron Foote worked at the lumber mill in Libby and has been diagnosed with asbestosis. Although Foote was exposed to vermiculite dust at the lumber mill, he was also exposed to it at the Libby baseball fields, which were near the Grace export plant. Piles of vermiculite were all over the place, Foote said. Trucks could be seen dumping the ore not only into bins at the export plant, but into piles around the ball fields.
“We just loved to play in it,” he said. “It was kind of neat. I didn’t see any danger in it.”
Foote was not the only one in his family to use the Libby baseball fields. In 2004 and 2005, he coached his daughter on the same fields. He “was down there every day,” he said, among the piles of nearby ore, the dust in the dugouts and where the vermiculite was “worked into the field between third base and home.”
Vernon Riley, the next witness, also worked at the Libby lumber mill. During his 27 years of employment there, Riley said he was exposed to asbestos. His wife, a lifelong Libby resident who never worked at any mill or mine in Libby, was also exposed to asbestos and died of mesothelioma in 1998.
Riley said his brother was a foreman at the Grace mine and often came to Riley’s house after work “covered in dust.” And while Judge Molloy reaffirmed that dust within people’s homes doesn’t qualify as dust in the ambient air — which means exposure there may not violate the Clean Air Act — Riley believes that is where he and his wife were exposed to asbestos.
“My house was full of it,” he said. “The attic was plumb full of it.”
Wendy Challinor said she never worked in a dusty environment, but she lived in one everyday, from when she moved to Libby when she was two years old until she moved away after high school. Challinor said from the witness stand that her stepfather was a foreman for W.R. Grace, and like Riley’s brother, came home from the mine dusty. Challinor also thinks she was exposed through everyday activities — she ran track at the high school and frequented areas near the mine to socialize and attend parties. The vermiculite, she said, was everywhere and at times was even a diversion.
“We put it in our mouth,” she said, unaware of the health threat posed by the ubiquitous mineral. She has since been diagnosed with pleural hardening and thickening.
Mike Nelson, the witness following Challinor, may have attended some of the same parties Challinor did. He also collected firewood near the mine and went hunting with his father there, where he remembers seeing trees covered dust, he said. Nelson, also like Challinor, has been diagnosed with pleural plaque and gets short of breath easily. While Nelson never worked at the mine, he worked in Libby as a general laborer and believes he was exposed, like everyone else in the community, he said, through contaminated outdoor air.
– Will Grant, edited 2/25/09
The Government offered three witnesses this morning, giving the attorneys a chance to exercise their legs by standing to object to both testimony and exhibits. (A point of decorum – always stand when addressing the Court.) Most of the objections centered on relevance, in particular, asking that testimony be nailed down as to time. In response to questions about when witnesses saw or encountered vermiculite, the Defendants, primarily through W.R. Grace’s attorneys, asked that testimony be limited to events after 1990. Judge Molloy agreed, ruling that “the releases have to be at a point covered by the law,” the “law” being the criminal provision of the Clean Air Act, enacted in 1990.
For example, one witness was allowed to testify as to vermiculite he encountered at his home or while fishing along the Kootenai River after 1990, but not about his contact with vermiculite playing at the baseball fields as a kid. Judge Molloy also struck some testimony as irrelevant when witnesses went too far afield and began discussing releases that may have occurred from installing ceiling fans, or testified regarding mis-diagnosis between family members. Judge Molloy sustained a defense objection that the testimony from each witness regarding the location of vermiculite was getting cumulative.
After the jury was excused for lunch, Judge Molloy inquired about the relevance objections. The Government argued it needed the testimony as to the locations of vermiculite throughout town to establish components of the obstruction counts.
The Government also previewed some of the testimony to come by saying that medical testimony (presumably from experts) would be offered to establish that exposures during early 1970s (childhood years for the witnesses we heard from this morning) accumulate over time, thus increasing the risk of harm. Grace’s attorney, Mr. Bernick, responded that the problem with the Government’s questioning is it consistently exceeds the scope of this narrow foundational purpose the Government claims is necessary. The witnesses testify about not only the location, but also the nature of their interaction. Furthermore, Mr. Bernick explained that the locations of these vermiculite piles, or sources, did not carry forward past 1999, the timeframe relevant to the charges. The inference of childhood exposures is irrelevant to the obstruction or the knowing endangerment charges.
Judge Molloy did allow testimony regarding in-home exposures that took place after 1999, and Mr. Bernick pointed out that these are non-ambient exposures and thus not relevant to the charges in this criminal case. Without making any rulings, Judge Molloy thanked the attorneys for clarifying their positions as to the information and the relevance issues and recessed the Court until 1:15.
Three of the government’s 34 witnesses from Libby, Mont., took to the witness stand this morning, trying to answer questions amid fierce objections from W.R. Grace attorneys. All three witnesses are in their 40s, grew up in Libby, and have been diagnosed with lung abnormalities stemming from their exposure to asbestos.
After dozens of objections from the defense, Judge Donald Molloy forbade the prosecution from questioning witnesses about releases of asbestos prior to 1990, the year the Clean Air Act went into effect. A “release” technically includes any time one of the witnesses played in or kicked up vermiculite as a kid. Since asbestos-related diseases have a latency period of many years before showing symptoms, the witnesses heard today were likely exposed in early childhood — well before 1990.
Kelly Cannon, 42, recalled playing with the vermiculite he found near the baseball fields on Grace’s export plant property. He said that when he was little, he’d bring it home to his mother to show her. In 1992, he took an odd job one summer driving dump trucks for a small trucking outfit hired by W. R. Grace to haul vermiculite from the mine site down to the screening and export plants. When he dumped the vermiculite, he said, there was an awful lot of dust. The work only lasted 10 days, but Cannon was a valuable witness because he testified that Grace releases of asbestos occurred during the years that are covered by the Clean Air Act.
Kelly O’Brien, 45, bought his childhood home from his parents, and lives there today. Before the EPA cleaned it up in 2007, the attic, walls and basement were filled with vermiculite insulation. He said that as a kid, he would find unexpanded vermiculite in his basement, take it outside, put a match to it and watch it pop. O’Brien was barred from testifying about his use of the middle school track as a student , which was laid with vermiculite, because that constituted a release before 1990 and was ruled, after an objection, irrelevant.
Dean Harried, 44, was unique in that chest x-rays showed asbestos-related disease in only the left lung. Defense attorney Harding used this fact to cast doubt on what exactly he has, asking whether it was possible to breath asbestos fibers into just one lung. Harried, with a genuine “aw shucks,” said he didn’t know.
The defense asked all three witnesses if they’d worked with automotive brakes, which are known to contain asbestos. All three had, but the defense did not ask whether they thought their lung problems might be related to their work with brakes instead of their exposure to vermiculite.
Defense completes opening statements
Thomas Frongillo, lawyer for Robert Bettacchi, started the morning with an opening statement which personalized the defendant as a grandfather who fully disclosed the hazardous condition of the land in Libby. Frongillo acknowledged that a “terrible tragedy” had occurred in Libby, but pounded upon the theme that “there was no secret.” The focus of the speech was threefold: humanize the defendant as a middle-class family man, emphasize that defendant hid nothing, and finally paint the government as shifting the blame for its own shortcomings. In ending, Mr. Frongillo asked the jury to fulfill their Constitutional obligation to be fair and objective, to be braced for the emotional testimony, but to set these emotions aside when deliberating.
Judge Molloy spent some time reviewing the chart which was distributed to the jury following opening statements. The color coordinated chart apparently lays out the counts with the defendants charged, and traces the various timelines which will be presented at trial. Judge Molloy explained that the chart was not an instruction on the law, but an effort to place evidence in the context and timeline of what the government must prove beyond a reasonable doubt. Judge Molloy also referenced the jury instructions, stating that they will provide the ultimate guidance on what is binding in the case.
Prosecution begins their case-in-chief
Prosecution called their first witness, Kelly Canon, who was examined by Mr. Cassidy at length about both his childhood growing up in Libby, as well as his occupations during 1990-2003. The prosecution moved to admit exhibit 681, an aerial photograph depicting the export plant and the baseball fields Mr. Canon testified to playing on. The defense objected on several grounds, including relevance and “time” which Judge Molloy interpreted as foundation. Mr. Cassidy continued to elaborate on how the witness recognized the area, to which he responded “It’s my old stomping ground.” The exhibit was admitted and published to the jury over the objection of a “pending motion before the court.” Mr. Cannon marked the two homes where he had lived during the 1970s, which were approximately 2-4 blocks from the export site. Mr. Cassidy questioned whether Mr. Canon knew what vermiculite was, and how he knew, which was peppered with relevance objections by the defense. The prosecution tried to have a photograph of Mr. Canon’s little league team admitted, exhibit 204A, but was sustained as irrelevant. Mr. Canon performed some hauling and dumping at Grace in the summer months, and described the dust billowing through the windows of the un-airconditioned dump trucks. Mr. Canon has been diagnosed with an asbestos-related disease, and has a civil suit pending against Grace.
Ms. Harding cross-examined Mr. Canon for the defense. Her questions focused on work the witness had performed with automobile brakes, which tend to be lined with asbestos, as well as attempting to pin down the actual amount of days he had spent performing dumping work at Grace. Mr. Canon clarified it was 10 days over 2-3 months from 1990-93. She questioned how many times he had met with the government about this case, which was twice, once ‘”three weeks ago” and the previous time in December 2008. Ms. Harding attempted to have exhibit 5143 admitted, a website page, but was kept out on objections of relevance, hearsay and foundation. She also broached the subject of his current civil suit against Grace, but was refrained from learning whether he has an hourly or contingency fee arrangement. She also picked at his treatment from his doctors.
On redirect Mr. Cassidy elicited testimony to clarify the somewhat hazy timeline from when the witness was diagnosed with asbestos related disease, in the early 1990s, to when he sought legal representation. Mr. Cassidy also was successful in having exhibit 797 admitted, a photo of the large external open-fronted storage building where the witness dumped materials for Grace. Over the objections of foundation and pending motions, Judge Molloy ruled “It’s coming in.”
Mr. McLean called and examined the prosecution’s second witness, Kelly O’Brien, another lifelong resident of Libby. Mr. O’Brien’s testimony centered around the vermiculite which filled the ceiling and walls of his childhood and current home in Libby, including memories of the fibers leaking through the ceiling. In describing what vermiculite looks like, Mr. O’Brien gave illustrative testimony of the flaky texture of darkly-tinted natural vermiculite, as well as the gold, tree-like layers that are seen once the product is processed. Mr. O’Brien testified that both forms were found in his home. After relevance and time objections, Mr. McLean shifted focus to the vermiculite exposure to the last 15 years. Mr. O’Brien grew emotional when he said he had been diagnosed with an asbestos-related disease in 2002. Objections to Mr. O’Brien’s testimony were focused on relevance as well as testimony prior to the 1990s, which were largely overruled, though Judge Molloy did instruct the jury to “take into account the time frame.”
This morning, Frongillo finished his opening statements for the defense, focusing on client Robert J. Bettacchi’s life and his involvement with W.R. Grace & Co. He claimed that the government knew the dangers of vermiculite all along, failed to act or legislate regulations, and now wishes to pin the blame on Bettacchi and Grace.
At the end of opening statements, Judge Molloy presented the jury with a chart to help them understand the evidence regarding the defendants and the allegations against them.
Good morning. Kalie Tenenbaum will be reporting this morning as court begins.