Feb. 25, 2009
Entries posted Feb. 25, 2009, Day 5 of U.S. v W.R. Grace el al.U.S. and Grace spar over Peronard’s Testimony
After a brief recess, the Prosecution resumed its direct examination of Paul Peronard on Wednesday. Through several exhibits provided at trial (some of which were admitted into evidence, and some that weren’t,) the U.S. tried to show that Grace knowingly endangered the people who bought former Grace property contaminated with asbestos fibers. Through the testimony of Paul Peronard, the U.S. attempted to show that Grace knew the property it sold was contaminated when they sold it, and that dust releases from the property actually, and inevitably, occurred and satisfied the Court’s ambient air release requirement.
To introduce this theory, the Prosecution first laid a foundation for hundreds of thousands of asbestos samples taken at and around Libby. Peronard explained how the tests were taken by people on the ground in Libby, sent to labs across the country, and checked with a combination of intra- and interlab sample confirmation. The results were then compiled and stored on a massive database, and laid over a GPS coordinate map of the contaminated properties. During this part of Peronard’s testimony, objections were generally overruled, although the few times Peronard testified to anything other than his own experience, the objections were sustained. To an outside observer, this line of testimony may have seemed ridiculous—Peronard was allowed to explain how hundreds of thousands of asbestos tests were taken and compiled, but he could not testify to the actual concentration of the asbestos levels, whether high or low, despite the fact that he essentially oversaw the proper handling of the samples.
Despite this limitation, most of the Defense’s objections were overruled. This balance of power shifted noticeably after the Prosecution started tying the asbestos samples found on the contaminated property Grace conveyed to the various counts in the indictment, including the Clean Air Act, knowing endangerment, and obstruction charges.
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After the afternoon recess, the government’s expert, Paul Peronard, looked composed as he discussed the EPA’s operation in Libby. Motioning with his hands and speaking clearly, Peronard walked government attorney Kevin Cassidy through the asbestos testing plan that he oversaw in the town.
The range of Peronard’s testimony was restricted earlier when Judge Molloy ruled he could testify as an expert witness only about clean-up site coordination, not about asbestos or other scientific issues. Throughout Peronard’s testimony, the defense was quick to object if anything he offered strayed into the realm of scientific expertise.
To establish the accuracy of the EPA’s sampling, Cassidy made sure that the jury had a clear understanding of the steps taken to evaluate samples. The prosecutor emphasized that the labs contracted by the EPA to test the Libby asbestos had been certified, and a system was in place to oversee them.
Peronard said with such a high volume of samples, some errors in testing were anticipated. “When you’re dealing with this number of samples, you expect people to make mistakes,” he said, later adding, “There is a system in place to catch mistakes.”
This system included what Peronard called “data quality objectives,” essentially a set of rules governing the value of samples collected in Libby. According to Peronard, internal EPA audits, as well as a system of outside checks, insured that the data coming in to the EPA’s electronic database were accurate. During the process, Peronard said that one lab did not meet the standards and was removed from the project.
As the afternoon progressed, Cassidy offered several exhibits that Peronard had prepared showing points where asbestos had been found overlaid on aerial photos of Grace’s screening and export plants. Peronard said that such exhibits were valuable because they offered a spatial dimension to his testimony. ”It’s a great way to display and communicate information,” Peronard said. ”[The points] basically told us where to take action.”
The defense, however, objected to the evidence several times during the proceedings, questioning the relationship between the dirt samples and the danger of asbestos exposure in the ambient air.
Judge Molloy allowed the exhibits on a limited basis. The objections seemed to bother Peronard as he held the bridge of his nose and asked for clarification as to what exactly he could testify to.
Judge Molloy called for a recess before 5:00, saying that more issues still needed to be resolved. Court will resume at 8:30 Thursday morning.
Following the lunch recess, EPA on-site coordinator Paul Peronard faced almost two hours of questioning from U.S. government trial attorney Kevin Cassidy regarding his first visit to Libby, his tour of the mine and what he saw there in November 1999.
Throughout Peronard’s testimony, several pieces of evidence – including a number of aerial photographs of different sites around Libby - were displayed to the court which Peronard was asked to comment on. He testified that he, along with others from both the EPA and W.R. Grace Co., spent his first visit to Libby touring the area, including the mine. He also recalled seeing scattered vermiculite upon arriving in Libby.
Speaking about the mine’s former screening plant site - which at the time of his visit had been operating under the Parker family as Raintree Nursery – Peronard said, “It was all very dusty…you could see the dust sort of going in and out of the buildings.” He testified that there were a number of large piles of vermiculite ore around the orchard area of the nursery and also recalled seeing one of the Parker’s grandchildren playing with vermiculite during his visit.
Despite vermiculite being abundant all over Libby, Peronard testified he and others took no precautions during their tour of the operation. ”I didn’t think I needed to,” he said.
Following his initial visit to Libby, Peronard testified that he returned home and began formulating a plan for an investigation – one he said must include both environmental sampling and medical research.
At roughly 2:40 p.m., Molloy called for an afternoon recess. Peronard will continue his testimony at 3 p.m.
After lunch, Paul Peronard took the stand for direct examination by government attorney Kevin Cassidy. Judge Molloy ruled before lunch that Peronard may testify about his expertise as Libby’s EPA on-site coordinator, but may not testify as an expert regarding risk assessment generally. This leaves him as a fact witness and a limited expert witness.
In his role as fact witness, Peronard took the jury on a tour of Libby in 1999. Relying on photographs of the area as well as of the screening and export plants, Peronard described the various places where the EPA eventually found high levels of asbestos.
Most compelling were the photographs of Mel & Lerah Parker’s orchard at the screening plant, showing piles of vermiculite being used to hold trees, and of the vermiculite-covered foot path between the orchard and the main part of the screening plant. Govt. Exhibits 760, 761.The photos reminded me of playgrounds where old rubber tires are milled into pea-sized pieces and laid a few feet thick to prevent children from cracking their heads open when they fall. Although not yet in evidence, the government’s contention is that all of this vermiculite released asbestos every time someone walked or drove on it.
The defense objected 4 or 5 times during Peronard’s testimony on the grounds that the question asked for information that only an expert could give. The judge overruled two of the objections: one was about Peronard’s interpretation of sampling data given to him by former Grace mine manager Alan Stringer, which the judge reframed as simply asking, “What did it mean to you?” The other asked Peronard what next steps he decided his team should take after first visiting Libby in 1999. In that instance, the judge ruled that the answer was within Peronard’s expertise as on-site coordinator.
In contrast, when Peronard testified about seeing the Parkers’ granddaughter in 1999 throwing chunks of vermiculite against the side of a building to make it break into small pieces, then adding that he later learned those rocks were contaminated with asbestos, the judge sustained the testimony was expert opinion. The judge allowed the first part of Peronard’s answer – that he later learned the rocks were from the mine – but struck the part about the rocks being full of asbestos.
Similarly, Peronard testified that he did not take any precautions for his own health when he first visited in Libby in 1999, saying, “In hindsight, we should have.” When asked why he did not think he needed precautions, he began testifying about his prior experience with other forms of asbestos, which are not easily disturbed. The defense immediately objected, again on grounds of expert opinion, and the judge sustained the objection. Peronard was allowed to testify that his experience was you have to really work asbestos-contaminated material before it will release the asbestos. (This testimony foreshadows the government’s larger theme, i.e., that Peronard and the EPA had no idea when they first went into Libby that the vermiculite ore found all over the place was very “friable,” i.e., that it takes very little disturbance for it to release high levels of asbestos.)
— Beth Brennan
The defense lawyers tag-teamed against Peronard for the majority of the time, trying to chip holes in both his expertise and his credibility. Peronard appeared weary or perhaps frustrated, at times stroking his forehead as he listened and squinting at the computer monitor when asked to view some piece of evidence. But if the defense hoped to wear him down, it appeared that they failed.
Peronard testified that he had worked as the on-site coordinator for the Libby contamination from 1999 to 2004. He was replaced by Jim Christiansen but returned again from 2006 to 2008 after Christiansen left. He submitted his first referral to the criminal investigations division of the EPA in 2000. The resulting conversation with an investigator was very short, only about 10 minutes, and he never heard anything afterward. He made another more formal report to criminal investigations in 2004, after the completion of the Libby civil case.
Peronard said the main thing that prompted his 2000 referral was the discrepancy between the responses given by Grace on an official questionnaire (104E) and the data found in the documents they had to surrender regarding the concentration of asbestos fibers in the air. He was also compelled to file by input from Libby residents.
In both cases, when the defense questioned his motive, he said he made the referrals as both an EPA employee and as a concerned citizen. When the defense attempted to demonstrate that he had ulterior motives in his official capacity for trying to push a criminal investigation, he said, “If you think there’s a crime, anyone can make a referral.”
The defense focused on the time between 2001, when Peronard was documented as discussing the criminal aspect with others, and 2004, when he finally filed again. They asked if he had collected samples during that time in support of a criminal case and he said no. Asked if he has been working “hand-in-glove” with the prosecution, he denied it although he has spent a lot of time preparing for the case.
Finally, they tried to get Peronard to say that, based upon communications within the EPA, people had been trying to couch their language during that time so as to support a criminal charge against Grace. But the defense attorney’s language itself was so couched that Peronard had to ask him to repeat the question twice. At last the attorney translated, “Were you doctoring the books anywhere else in the government?” Peronard had no trouble understanding that and said he couldn’t speak for anyone else.
Peronard remained courteous in his answers and tried to be clear. Any iffy responses were redeemed when finally the prosecution questioned him and had him reiterate specific points that had been muddled by the defense’s questioning.
Molloy asked him about his documented anger toward the fact that the government let certain issues fall through the cracks, which lead to the tragedy in Libby. Peronard’s honest answer seemed to satisfy Molloy as did most of the testimony he gave. While Molloy agreed that Peronard was not a scientist and therefore would not be allowed to testify on scientific details, he was found credible in spite of the defense’s efforts. He will testify as an expert in being an on-site coordinator.
- Laura L. Lundquist
Chris D’Angelo will be continuing coverage this afternoon with the jury hearing Peronard’s allowable testimony.
As of 10:00 this morning the jury was not present in the courtroom and defense attorneys were questioning government witness Paul Peronard to determine the extent of testimony he would be allowed to provide. Defense objected to Peronard testifying on matters of toxicology, epidemiology, mineralogy or introducing summary reports of scientific data from the Libby cleanup effort. The two reports contained language to the effect of “actual or threatened releases … present imminent and substantial endangerment to public health…” and the defense sought to keep those words from being heard by the jury. Defense attorneys also questioned Peronard’s credibility as an expert witness.
After two hours of attorneys presenting their arguments to Molloy and more questioning of Peronard, Judge Molloy read his decision to the courtroom. Molloy found that Peronard is an expert in on-scene coordination, assessing immediate environmental concerns and developing an approach for addressing situations, but he is not an expert on risk assessment, toxicology, epidemiology or mineralogy. Therefore, Peronard will not be permitted to provide opinion testimony as to risk assessment, toxicology, epidemiology or mineralogy and if the government wants to submit evidence on these topics, they will have to get an expert in each of those fields to testify.
Molloy went on to rule that “we do not put in evidence by summary witnesses” and therefore Exhibit #623a, a report written by Peronard, would not be admitted as evidence and would not be shown to the jury. The prosecution could use it as past recollection recorded, which under Federal Rules of Evidence 612 allows a witness to use a writing which he himself prepared at the time of the occurrence in order to replace current memory of an event. Writings used by a witness in place of current memory can be read out loud to the jury, but do not get admitted as evidence and do not go into the court record or into the jury room during deliberations. Judge Molloy made a point to say that he found Peronard quite credible, putting to rest defense objections as to the credibility of the witness. Molloy called a break for lunch at 12:10pm.
- Janet Harrison
The defense continued to question Paul Peronard’s credibility as an expert witness and whether he can give an opinion on the risk assessment in Libby and the imminent danger to Libby residents. Peronard said that he had never worked in the Risk Assessment Office for Region 8 of the EPA. The defense also stressed that Peronard is not a toxicologist or even a scientist and therefore cannot be relied upon to give an expert opinion.
Peronard said that he gathered his opinions through other experts and led the risk assessment and testing at the Libby site. The defense brought up a quote that Peronard told the EPA in regards to the tremolite testing in Libby, “We are developing the science as we go.” Peronard said that the quote was taken out of context, and the EPA had not before encountered this particular type of risk assessment.
Discussion and examination continued to escalate to a point where Judge Molloy told defense counsel and Peronard to respect each other and not talk over each other because the jury will not understand what’s going on.
After excusing the jury to hear arguments from counsel, Judge Molloy kept repeating his concerns with Peronard testifying as an expert witness. He said that within the scope of a criminal trial, he did not see why Peronard should be able to give any sort of opinion on science and testing. Judge Molloy did, however, feel that Peronard could testify about his experience at Libby as the on-site coordinator for the EPA.
Judge Molloy asked the prosecutors how many expert witnesses they needed to prove their case, noting several other scientists and doctors that will testify in the trial. As of 10 a.m., Judge Molloy said he had not made his mind up on whether or not Peronard will testify as an expert witness.
Defense attorney David Bernick continued to voir dire Mr. Peronard in an attempt to show that he is unqualified to testify as an expert witness under Federal Rules of Evidence 702 and 703. The Defense attempted to admit portions of the Environmental Protection Agency’s (EPA) website, but hearsay objections from the Prosecution were sustained despite attempts by the Defense to use the Public Records and Reports exception under Rule 803(8).
Mr. Bernick questioned Mr. Peronard extensively on his work with the EPA. At times the questioning was contentious with Judge Molloy intervening to ensure that one person talk at a time and that examination occur in a question and answer format. The Defense questioning elicited that Peronard was not a toxicologist or epidemiologist and tried to suggest that he was not a scientist. The Defense characterized Peronard as an on scene coordinator rather than an expert in the field of risk assessment. An objection by the Prosecution that questioning was outside the scope of voir dire was overruled by Judge Molloy. After voir dire concluded the jury was dismissed from the court room by Judge Molloy so that arguments over whether Peronard could testify as an expert could be heard. Judge Molloy informed the jury that he hoped to have them return within 15-20 minutes.
Mr. Bernick argued for the Defense counsel that under Daubert, Rules 702, and 703 of evidence Peronard was clearly not qualified as an expert in the field of risk assessment. He seemed to concede that Peronard could testify as a factual witness to his work at Libby for EPA, but insisted that Peronard was not qualified to opine on risk assessment involving the Clean Air Act (CAA) and “imminent danger.” It was also pointed out that Peronard’s work was from a civil regulatory perspective and focused on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), whereas here the Defendants were charged with criminal violations of the CAA.
The Prosecution countered that they wanted Peronard only to render an opinion as to whether Grace’s operations in Libby posed an imminent danger to the community and that even though the conclusion of imminent danger was based CERCLA, it is still relevant to this case.
Mr. Bernick returned to the podium and discussed a deposition transcript from 8/28/02 that showed Peronard did not hold himself out to be an expert in the field of risk assessment. Mr. Bernick also argued that under Rule 403 Peronard’s testimony should be excluded because it would be “highly prejudicial.” He seemed concerned that the jury might confuse Peronard’s opinion testimony that was based CERCLA as opining to criminal violations of the CAA. In addition, various defense counsel argued to Judge Molloy that Peronard was not qualified as an expert. Mr. Frongillo argued that Peronard’s testimony raised potential Confrontation Clause issues under the Sixth Amendment of the United States Constitution because there was no opportunity to actually confront and cross-examine the scientists who were responsible for analyzing samples collected at Grace sites in Libby. He pointed to the recent Supreme Court case of Melendez-Diaz v. Massachusetts (Diaz), which was heard in November of 2008, but has yet to be decided, and argued that it could have bearing on this issue.
The Prosecution seemed to concede that Diaz could be relevant, but also attempted to distinguish it. Under Rule 1006 they argued that summary testimony of the testing may be appropriate because otherwise the Government would potentially have to call hundreds of chemists.
After approximately an hour had lapsed and with no decision yet reached, Judge Molloy called the jury back and informed them there were important legal arguments yet to be settled. Before dismissing the jury until 1:00PM and allowing them to leave the courthouse he reminded them not to discuss the case, read any media coverage, or otherwise research the case on their own.
Good morning. Laura Lundquist is continuing coverage of the trial. Peronard and counsel will return to court this morning, but the jury has been dismissed until this afternoon due to confusion over the admissibility of Peronard’s testimony.
Good morning. Kelsey Bernius will be covering the early morning shift today as questions about Peronard’s experience and qualification as an expert witness continue.