andrew schneider investigates

March 4, 2009

Second week of W.R. Grace criminal trial end with defense arguing epidemiologists know more than physicians about asbestos disease.

Filed under: Uncategorized — Andrew Schneider @ 22:39

Of course, no one will know until the jury hearing the W.R. Grace criminal trial issues a verdict three, four or five months from now, but the 15 jurors and alternates were given a lot to consider today as the second week of testimony ended.

The day began with Grace lawyer Tom Frongillo continuing to paint Mel Parker, the owner of Raintree Nursery, as an opportunist swirling in the dusty world of million-dollar payouts from both Grace and the Environmental Protection Agency because the 22-acres that he bought from Grace was heavily contaminated with asbestos.

Frongillo got Parker to admit that he and his wife, Lerah, had received $1.5 million from the EPA for his house and belongings when EPA told him it was too contaminated to live on. The lawyer described a series of letters from EPA to the Parkers saying they would only be given the money if they truly didn’t know the land was contaminated — something Grace maintained they did know.

In response, Assistant U.S. Attorney Kris McLean did a surprising job of trying to resurrect the shredded image of Parker, who had been one of the government’s primary witnesses to show that Grace knowingly endangered residents of Libby, Mont., by mining vermiculite from nearby Zonolite Mountain that was contaminated with asbestos fibers.

McLean beat the defense to the punch by having Parker explain to the jury why he and his wife refused offers from Grace to buy back their tainted land. They rejected Grace’s offers of $1.2 million, then $2 million. Parker explained that when Grace finally asked “what do you want,” his wife said, “$10 million.” Grace declined.

He quickly added that he and his wife weren’t being greedy. Rather, they were trying to explain to Grace that “money wasn’t the issue” because he said they didn’t know what the future would bring for him, his wife, his daughter and granddaughter – everyone who played or worked in the asbestos-tainted vermiculite at the nursery.

Lerah Parker took the stand, resolute and well-prepared and far more strident in her answers at first than later in the questioning. McLean had her describe eight photographs she’d taken of her grandchildren and others playing in the yard at the nursery.

She cried softly as she went through the photos describing what the children were doing and pointing out all the vermiculite in the area.

Every attempt to introduce a photo into evidence was met by an immediate objection by the defense. U.S. District Judge Donald Molloy permitted only one of the eight photos — the one showing no children — into evidence.

alan-whtehouse

Dr. Alan Whitehouse

By early afternoon, Dr, Alan Whitehouse was sworn in. The pulmonologist from Spokane, who has treated more than 10,000 patients in his 35-year careers, was the first physician to identify a serious asbestos disease problem among residents of Libby.

He walked the jury through 30 minutes of photos of X-rays and CT-scans of Libby patients, pointing to blurs of differing shades of grey and identifying them as asbestosis, mesothelioma, scarring and the other asbestos-related diseases he routinely finds.

Most of the jurors were trying hard to follow, some even trying to trace with their finger the cancer or plaque on the screens before them.

Whitehouse showed the films of the Parker’s diseased lungs. The couple watched them flash on the 42-inch flat screen in front of them in the spectator section. She seemed to a shutter a bit and he just stared unmoving at the images. McLean fashioned his questions with painful care to elicit numbers on the sick people in Libby and Lincoln County and avoid the non-stop objections by Grace lawyers.

Whitehouse explained that there were about 2,400 people being seen at Libby’s Center for Asbestos Related Disease, but about 600 were not showing symptoms. Of the remaining 1,800, a quarter were miners, a quarter were members of miner’s families and the remaining half apparently got the disease just from living in Libby.

But the doctor diverted from the numbers and described his patients and their pain and illness, centering on the Parkers, Wendy Challinor and Mel Burnett, who is expected to testify later.

“Libby has the highest mesothelioma rate in the nation because there is so much asbestos floating around,” Whitehouse explained as three Grace lawyers rose to object.

The disease, which has no cure, is rare in the rest of the country.

The cross examination was predictable even though Grace’s razor-toothed star, David Bernick, did the job.

He started by acknowledging that Whitehouse was the chest specialist for most of the people in Libby and then quickly asked how much money the doctor was making testifying on behalf of the patients who had sued Grace before they grabbed bankruptcy protection.

I always find this question a little bit disingenuous coming from a lawyer who makes $1,000 an hour plus. And I rarely see expert witnesses for the defense asked that question.

Bernick then challenged Whitehouse’s ability to identify environmentally caused disease and to predict the spread of the disease. He hauled up the traditional debate between physicians and epidemiologists that defense lawyers have used for years.

Whitehouse angrily said epidemiologists deal with numbers and physicians lay hands on patients. Real people with pain, fear, he said.

Some jurors seemed to approve.

Bernick said that other people reading the X-rays and CT-scans of his patients didn’t always find the same problem. Again, Whitehouse said radiologists deal with images on film while he and other physicians actually sit across from the patient.

The afternoon ended with Bernick challenging Whitehouse’s contention that the amount of illness in the tiny community is severe and will last for decades. As proof, the Grace lawyer quoted from an old study by Agency for Toxic Substances Disease Registry, the worker health research arm of the Centers for Disease Control.

That study, Bernick said, showed Libby was no worse than the rest of the country when it came to asbestos-caused deaths. Whitehouse said the study of miners from 1979 to 1988 was flawed, used bad science and death certificates that mischaracterized the actual cause of death.

Bernick attempted to mock Whitehouse, expressing surprise that he would have the nerve to question the august and lofty scientists of this leading government health agency. The doctor stood firm by his numbers.

It’s too bad that this section of the trial wasn’t a week later. Next week, in Washington, the House Committee of Science and Technology is holding a hearing called “ATSDR: Problems in the Past, Potential for the Future?” It will be looking at the quality of many of ATSDR’s field evaluations, including its asbestos work, which critics have claimed routinely underestimated the risks it encountered.

The trial resumes on Monday.

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1 Comment »

  1. I wish Bernick could have been next to my Dads hospital bed when he looked up to me ( tears in his eyes ) and said ” Chum..Im going to die. They have killed me ) I will never forget it. Dad’s test results and records of his asbestos exposure and disease were concealed from him. They were marked for company eyes only. His cause of death was listed as heart failure because the Doctor was in the Companys pockets as the Company Doctor. He died because of the mass of tumors in his lungs had moved up his spinal column to his brain. The 5 or so tumors on his brain caused his death.

    Then Mr. Bernick should have been there when my brother died. He suffocated to death. His quality of life had diminished over a period of years because of the plural thicking of his lungs. His choice to die was his. He could not survive without the tubes stuck down his lungs.
    I was with him the night he died. His will to live was so strong that it took him 7 episodes to finally let go.
    Of course Mr. Bernick would have said neither my brother or Dad were victims……..I wonder if Mr. Bernick would demand a payment of $1,000 dollars plus an hour to actually watch a ” non-victim ” pass away. I will never forget the suffering of both my dad and brother. I would have loved to be on the stand and explain to the jury the impact the asbestosis had on them…….by the way I also have been diagnoised with Asbestosis……It appears that I will be fortunate to die of old age rather then at the hands of the WR Grace Company.

    Comment by Bob Rayome — March 9, 2009 @ 12:34 | Reply


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