andrew schneider investigates

March 9, 2009

Grace lawyers gang up to urge Molloy to stifle another experts witness for the government.

Filed under: Government & corporate wrong-doing,W.R. Grace — Andrew Schneider @ 21:14

With the W.R. Grace criminal trial recessed for the day because of a sick juror, defense lawyers jumped at the opportunity to use the free time to pummel a U.S. Public Health Service physician who is one of the government’s key witnesses.
The target of several hours of scientific scrutiny and nitpicking was Dr. Aubrey Miller. As the senior medical officer in EPA’s regional office in Denver, Miller was one of the three-man team rushed into Libby by the regional administrator who wanted know what was happening.

Today, he is medical director of FDA’s Office of Counterterrorism and Emerging Threats.

Perhaps in spite of his credentials – or maybe because of them – defense lawyers made a major push to prevent him from testifying or, at least, limit greatly what he could say.

uncivil-action

On Friday, Grace’s lawyers filed a motion asking Judge Donald Molloy to drop Miller from the government’s witness list.

“The Court should exclude the proffered expert opinion of Dr. Aubrey Miller because it does not “fit” the issues of this case and its minimal probative value would be substantially outweighed by its unfair prejudicial effect,” the lawyers wrote in their requests.
In English, I believe Grace’s team was saying that Miller could do damage to their defense and should be made to go away. However, the judge pointed out that the request to evict the doctor had been made months earlier by the same cast of legal characters and his honor had ruled then that Miller was player.
Now that they were stuck with him, the Grace lawyers directed their efforts to attacking what Miller would present to the jury as far as assessing the risk from asbestos in Libby.
Grace lawyer Scott McMillan allowed that there probably was asbestos in the soil and lawns of Libby, but he asked how Miller and the government could prove that it came from the last 30 years that Grace operated the vermiculite mine.  Perhaps it came from one of the initial owners of Zonolite Mountain  40, 50 or 60 years ago, McMillan challenged.
Thomas Frongillo, who is defending one of the five Grace executives charged in the multi-count indictments, asked if Miller’s testimony would show that the lethal fibers weren’t just naturally occurring asbestos that can be found in Montana.
Both lawyers said the government cherry-picked the soil and air samples from more that 100,000 samples taken in Libby by both Grace and the government  that Miller would use to bolster his explanation of his risk assessment .
But Frongillo argued that the government has no witnesses, no scientists, no geologists, no mineralologists who can testify precisely where, why and how the samples were collected and analyzed.
He said if Miller is permitted to testify on this risk assessment based on this evidence, it would be a violation of  the Constitutional rights of the accused.
Grace’s lawyers have asked Molloy to ban or limit which topics Miller can testify about. They succeeded last week in imposing similar restrictions on the testimony EPA On-scene Coordinator Paul Peronard.  Then Molloy agreed that those areas could be addressed by Miller, who is an expert in risk assessment.  Now they are talking about limiting Miller and dumping all the crucial testimony into the lap of EPA toxicologist Chris Weis, who was the third member of the initial Libby team.
Prosecutors Kris McLean and Keven Cassidy probably will not have the best night’s sleep. Molloy will announce his decisions in the morning.

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