It took Judge Donald Molloy just 14 words this morning to respond to hours of yammering Monday by Grace lawyers who wanted a crucial government witness to be prevented from testifying.
“Defendant’s joint motion to exclude the expert testimony of Dr. Aubrey Miller is denied,” wrote the judge.
After listening to the physician – a specialist in occupational and environmental medicine – spend more than six hours testifying Tuesday, it was obvious why the defense wanted him gagged.
Miller methodically and gently explained to the jury precisely how he reached the conclusion that Libby, Montana, was contaminated with asbestos fibers from the vermiculite in Grace’s closed mine.
This, Miller concluded, presents an imminent health hazard which could lead to continued disease and death in the small town in the state’s mountainous northwest corner.
The doctor, in his U.S. Public Health Service Navy dress uniform with the four gold stripes of a captain and three rows of assorted medals, walked the jury through dozens of Grace corporate documents, studies done by the EPA and other agencies, and the work of scientists in the U.S. and abroad. To say it was technical and potentially confusing is an understatement, but the jury appeared to get it.
Lead Prosecutor Kris McLean doled the questions out at a measured pace. Miller, who was assigned as medical officer for EPA in the team first sent to Libby, cited study after study that showed the asbestos that contaminated the tiny northwest town was different, more toxic, more friable or more easily disturbed than other types of asbestos fibers.
Miller, who is now medical adviser for bioterrorism to the commissioner of the Food and Drug Administration referred to Grace correspondence from the 60s, 70s and 80s that showed the company and some of the very same officials on trial here in Missoula were told of the dangers of the asbestos tainting their vermiculite. He read portions of other studies from the company’s own scientists and other more recent work that reported that dangerously high concentrations of lethal fibers were easily released.
The physician also guided the jurors through the extremely complex morass of exposure limits and risk assessment jargon, even making the alphabet soup of acronyms used by OSHA and EPA (PEL, STHL, etc) somewhat understandable.
It was a whack-a-mole day again with defense lawyers popping up about every two minutes with an objection. McLean seemed unperturbed.
At one point, five of Grace’s team leaped to their feet at the same moment to prevent Miller from answering a question asked by McLean. Some started giggling.
I lost count at about 60 objections, but it appeared that Molloy overruled about as many of the defense’s wishes as he sustained.
I’m sure neither side loved the judge today, but isn’t that the way it’s supposed to be?
While the jury was still at lunch, Grace’s lawyers exploded over the exhibits that Miller was using to support his expert opinion.
They charged that McLean was using Miller to get into evidence documents and exhibits disallowed when On-Scene Coordinator Paul Peronard and pulmonologist Alan Whitehouse, the lung specialist who treated many of Libby’s residents, testified last week.
David Krakoff, the lawyer for Grace medical director Henry Eschenbach, charged that the government was using Miller’s testimony as a “drive through of the entire fraud case through this one witness.”
Karkoff said that Miller was referring to “dead people who we have no way to question.”
David Bernick, Grace’s top lawyer, asked the judge, “How in the world are we going cross examine this witness? We’ll be up all night figuring that out.”
The question came across as a bit of theater from a lawyer who probably could successfully cross examine a boulder — and knows it.
With the jury back, Miller took another quick tour of asbestos hot spots in Libby – the screening and export sites Grace used, the ball fields, running tracks and play areas at the town’s three public schools.
He explained how EPA employees, wearing vacuum-driven air samplers, simulated a child digging the dirt, raking the ground and mowing a lawn.
Asbestos was found in all samples, Miller said and added that even when trace amounts of asbestos were found, it translated into hundreds of thousands or even millions of fibers in a person’s breathing zone.
Miller said he concluded that there was — and is — an imminent health hazard which could lead to continued disease and death in and near Libby.
While the defense sharpens its swords in preparation to cross examine the doctor, Krakoff renewed his complaints about Miller’s testimony and asked the judge to restrict what the jury can consider. Molloy told him to make a motion and he’d consider it.
An identical motion was filed by the defense this afternoon asking Molloy to strike all the testimony given by Dr. Whitehouse.
You’ve got to wonder how many bites of the apple the defense gets. They first tried to prohibit Whitehouse and Miller from testifying, then objected to every third or fourth statement they made and, when that didn’t work, they asked Molloy to throw it all out.
His honor has a lot of homework again tonight.