andrew schneider investigates

March 12, 2009

A note of explanation

Filed under: Uncategorized — Andrew Schneider @ 06:14

To my readers,

I know I might be trying the patience of many of you by devoting so much time and space to coverage of the W.R. Grace criminal trial here in Missoula.

As some of you know, the Seattle Post-Intelligencer broke the story that Libby, Mont., had been poisoned by asbestos fibers released from a nearby vermiculite mine owned by Grace.

And as many of you have heard, the Seattle PI is about to shut down. So I’m covering the trial while I can.

I promise that soon we will be revisiting the captivating, non-stop world of nano-particles, poisoned peanuts, corporate and government hi-jinks and all the other affronts to public health that wind up in my in-basket.

Meanwhile, you can keep up with new postings on Twitter at asinvestigates

Thanks for your patience.

a. schneider

March 11, 2009

W.R. Grace lawyer tries to show that government concealed more secrets on Libby than the company on trial.

Filed under: Uncategorized — Andrew Schneider @ 21:02

By the end of testimony at the W.R. Grace criminal trial today, I was thinking that some of the jurors and many of the spectators were beginning to believe that the federal government was more guilty at concealing the asbestos dangers in  Libby, Mont.,  than the international chemical company that’s on trial.

But I’ll come back to this later.

Most of the day was spent watching Grace’s top lawyer – David Bernick – trying to skewer senior government public health doc Aubrey Miller. But the specialist in environmental and occupational medicine dodged almost every thrust.

uncivil-action

Bernick’s  mission was to discredit Miller in the eyes of jurors and taint the hours of fairly persuasive testimony the doctor has presented the day before.

He accused Miller, who was the medical officer for the EPA team that rushed to Libby, of concealing facts from the jury in his testimony, such as not describing all facets of the asbestos disease that killed a Libby woman in 1987.

It was clear that no one had collected the information when Margrat Vatland died, but that didn’t prevent Bernick from barking, “You didn’t tell the jury, did you?

It became his mantra for the morning.

Bernick demanded that Miller explain why the EPA had declared Libby an emergency cleanup site when it didn’t have the proof of the danger.

And with machine-gun speed, he followed with: Wasn’t it was the only way EPA could get cleanup money from headquarters without first completing a complex study in the risks facing townsfolk?

If he wanted Miller to stumble, it didn’t happen.

You had to wonder whether the prosecution team had been Super-glued to their chairs. Asst. U.S. Attorney Kris McLean rose only once to object to Bernick’s haranguing, as opposed to the 60-plus objections the defense had launched the day before.

Miller refused to let the defense limit his answers to complex or multi-part questions to a simple yes or no. But a dozen or more times Bernick cut Miller with a cry of “not responsive,” and asked the judge to have Miller’s comment struck from the record.

The Grace lawyer practiced the competitive sport of cross-examination with a wireless mike in one hand and a red and black marker in the other.

His footwork was masterful and he deserved points for agility as he slid his  body between the podium – the area where Judge Molloy and the court stenographer want lawyers to ask their questions – and an enormous white board on a shaky easel so he could draw a line or two, then write a date, a word or a phrase.

By the afternoon questioning, it seemed that the 4X8-foot white board was angled towards the judge and Miller, and it appeared  only the three or four jurors in the end seats could see Bernick’s intricate artwork.

It was almost 4 p.m. when defense lawyer Thomas Frongillo took his shots at Miller. He pushed for answers, but somewhat more gently.
He walked Miller through the timeline that Molloy set for the knowing endangerment counts in the indictment, the most severe of the eight criminal charges brought against Grace and five former executives.

He questioned the language used in EPA plans for announcing the results of the first asbestos testing in town, and then raised an issued that McLean could have gone all month without hearing again.

Frongillo questioned Miller at length on four studies that the Libby EPA team discovered that showed in painful detail that Grace wasn’t the only party in this trial that had kept secret the asbestos dangers confronting Libby and its citizens.

He quoted from studies funded by EPA  in the 1970s and 1980s, which, in great detail, told of the asbestos in the vermiculite, the risk to workers, the community and consumers using or exposed to the tainted vermiculite Grace sold throughout the world.

EPA wasn’t the only federal agency keeping the secret. Frongillo  asked the physician, who is now medical adviser on bioterrorism to the FDA commissioner, about studies by OSHA and the Consumer Product Safety Board – also done in the 70s and both promising regulations and warnings on vermiculite products from Libby. Neither delivered.

The lawyer shook his head, lowered his voice a bit and asked Miller if it wasn’t true that EPA had known of the asbestos danger in Libby almost as long as the agency has existed.

Frongillo said EPA was founded in 1970. Grace admitted it had asbestos in it’s vermiculite in 1971.

The judge adjourned for the day before the doctor could answer.

March 10, 2009

Top medical witness testified over the endless objections by W.R. Grace lawyers

Filed under: Government & corporate wrong-doing,W.R. Grace — Andrew Schneider @ 21:02
Drs. Chris Weis, Aubrey Miller and Paul Peronard - the first EPA team to arrive at Libby - hopefully taking Miller for a drink after he testified all day.

Drs. Chris Weis, Aubrey Miller and Paul Peronard - the first EPA team to arrive at Libby - hopefully taking Miller for a drink after he testified all day.

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.
uncivil-action

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.

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.

Sick juror stalls start of Libby asbestos trial and Grace lawyers scamper to derail next witness

Filed under: Uncategorized — Andrew Schneider @ 08:48

Judge Donald Molloy recessed trial before it started this morning, saying he’s waiting for a medical report on whether an ill juror is too sick to continue and will have to be replaced by one of the three alternates.

With the jury gone, the judge listened to Grace lawyers scramble to derail or at least severely restrict the testimony of Dr. Aubrey Miller this afternoon.

Dr. Miller was the medical expert on EPA team that arrived first in Libby.

Defense lawyers asked Molloy to disallow some of the material that the physician was going to use to explain the technical issue of asbestos exposure to the jury.

Grace allowed that there was likely asbestos in the lawns and soil of Libby but they challenged the government to prove precisely where the asbestos came from and when it was deposited there.

Another defense lawyer argued that there is naturally occurring asbestos in Libby and demanded that the prosecution prove to the jury know how much is related to Grace.

Molloy indicted that he would decide those issues later.

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.

For updates Twitter asinvestigates

March 3, 2009

One prosecution witness in the W.R. Grace trial scores, while another stumbles badly on conflicting testimony.

Filed under: Uncategorized — Andrew Schneider @ 21:23

UPDATE

MISSOULA, Mt. – One vital prosecution witness at the W.R. Grace criminal trial ended his testimony to rave reviews and a second critical witness stumbled badly Tuesday.

EPA On-Scene Coordinator Paul Peronard ended three days of intense enduring questioning. Even with the stringent restrictions on what topics Judge Donald Molloy would permit Peronard to address, and the jack-in-the-box antics of defense pin-striped suiters bounding out of their seats with endless objections, lawyers in the courtroom not involved in the case said he did more than hold his own.

They repeated earlier comments that the Montana jurors believed him.

I don’t know what Grace’s lawyers thought. However, after lunch, Peronard was sitting by himself in the almost empty lobby outside the courtroom door. David Bernick, Grace’s very well-paid lead lawyer, sauntered by, sees the man he’d been grilling for two days, donned a broad smile, whipped his arms apart and bowed two or three times. Peronard looked puzzled.

Because of Molloy’s strictly enforced gag order forbidding anyone, including the courthouse janitor, from talking to the press, I couldn’t ask Bernick the meaning of the apparent tribute. Picture

By mid-afternoon, Melvin Parker was on the stand. He was a key government witness that Molloy required today, rather than at the end of the batting order, as lead prosecutor Kris McLean had planned.

Parker bought 22 heavily contaminated acres of land at the base of Zonolite mines from Grace to use as a plant nursery, mushroom farm and winter storage area for 118 RVs and cars. He was to be a main player in McLean’s effort to prove the knowing endangerment charge, that Grace knew the land was contaminated and kept it secret.

The jury seemed willing to accept Parker’s answers to McLean’s questioning. They smiled at the old white-haired forester’s folksy replies. He talked about how he bought all the land and the buildings outside Libby from Grace in 1999. He tried to describe how his wife, their daughter and her husband worked at the nursery.

The government tried to introduce a photo showing Parker’s granddaughter playing in the yard, but Molloy upheld Grace’s objection.

Parker said he was assured by Alan Stringer, Grace’s man in Libby, that there was no hazardous material in the site which he bought two years after Grace closed the bedeviled vermiculite mine.

He said he first learned that there was asbestos in the vermiculite covering his land in the November 1999 stories on Libby in the Seattle P-I.

Stringer, Parker explained, showed up and said he was very disappointed in the P-I reporting and would “do anything it took, anything at all, to make it right.”

Stringer was also indicted in this case but died before trial.

McLean’s last question was on Parker’s health. Parker said he had an asbestos-related disease.

Defense lawyer Thomas Frongillo methodically set about to dismantle the government’s witness.

He spent almost an hour getting Parker to discuss various million dollar deals that he tried to craft with Grace, including buying hundreds of acres of forest land bordering the mine and, at one point, even the mine itself. They also went over the bidding war the Parkers had with Grace when the company wanted to buy back the contaminated nursery property. Parker testified that he found an offer from Grace for more than $900,000 “insulting” and also refused a $1.2 million offer – it was almost ten times what he had paid for it.

What brought scowls to the faces of some jurors and soft moans from spectators was when the lawyer had Parker repeat the answers he had given earlier to McLean about not having a clue that there was asbestos in the vermiculite.

Parker turned a bit surly and mumbled when Frongillo asked him about language he had written in his offer to Grace to buy the mine land seven years before the P-I stories. In that offer, he mentioned the presence asbestos type material on the property.

It became more painful to watch when the lawyer — who apparently did a lot more homework than the prosecution — pulled out a sworn deposition by Parker taken during a civil suit he brought against Grace.

Again, Parker contradicted many of the statements he had made to McLean.

Frongillio was just beginning to ask Parker about the 5,000 square foot house that EPA had provided him when Molloy ended the session. The cross examination resumes in the morning.

It will be amazing if McLean can patch this leaking boat up during redirect questioning.

March 2, 2009

Judge Molloy blames everything wrong on the prosecution in the Grace criminal trial

Filed under: Uncategorized,W.R. Grace — Andrew Schneider @ 20:35

Even court personnel and defense lawyers seemed a bit stunned Monday when Chief U.S District Judge Donald Molly ripped into government prosecutors blaming them for every problem but global warming. It didn’t take a legal scholar to figure out that the judge was royally angered at a ruling on Friday by the 9th U.S. Court of Appeals.

The higher court overturned a February order by Molloy that barred witnesses from Libby who were also victims of Grace’s alleged criminal action to watch the trials before they testified. The appellate court made it clear that Molloy had violated the provisions of the Crime Victim’s Right Acts and to let the people watch .

Molloy had suspended the trial and ordered Assistant U.S. Attorney Kris McLean to have 34 witnesses in the courtroom this morning to testify. They would do so before the judge and not the jury and then return at a later date to testify for real in open court. p1010064

But when Molloy slammed the gavel, there was no sign of the witnesses. There wouldn’t have been the original 34. Some had already testified and, McLean said, several were dropped from the witness list. This, because Molloy had severely restricted the evidence that the government could present against Grace.

“They could not be here today for many reasons, including the fact that they have determined that they just do not want to be here. No one wanted make two trips to Missoula to testify,” McLean told an incredulous judge. He added that the matter was moot.

“It’s not moot,” bellowed Molloy, adding that the appellate panel had ordered him to listen to the testimony of all witnesses so he could determine if later they had changed their opinions based on what they had heard from other witnesses.

“Let’s get something straight here,” Molloy said. “This case has been going on for too long. “And it has been delayed, delayed, delayed. And it’s going to get tried. And it’s going to get tried in accordance with the procedures that have been around in this country for over 200 years,” said the judge.

You could see the white knuckles of those sitting at the U.S. Attorney’s table. Neither they nor McLean said a word, but you had to know that everyone wanted to scream that the endless delays were caused by Molloy.

The judge had repeatedly taken Grace’s position on the admissibility of witnesses, evidence and science the prosecution planned to use. Those rulings were so devastating to the government’s case that McLean took the dangerous and uncommon action of challenging Molloy’s orders to the appellate court.

The higher court overturned Molloy almost every time as they did on Friday and some Missoula lawyers think today’s tirades was pay back.

The judge told McLean that he had warned the government as long ago as four years and several times since that this witness issued would surface. “You did nothing,” Molloy said.

One of the defense lawyers put his hand over his eyes, as if blocking something obscene or unpleasant.

“They just don’t want to come. The witnesses have decided that they don’t want to sit here for three to five months. What would you have me do?” McLean asked the judge.

The judge said he didn’t want the community of Libby thinking that this process is somehow tainted. “This is a public process. And there are rights that the defendants have, believe it or not. And it’s going to be a fair process,” Molloy said.

It turned out that the only witnesses that really wanted to watch all of the trial was Mel Parker and his wife who had bought 22-acres of asbestos-contaminated land from Grace. In fact, the motions to the appellate court was filed on their behalf. More than a dozen other witness said they wanted to see a portion of the testimony, but not enough to give Molloy a preview.  The Parkers finally told McLean that they would not attend so the trial could move ahead.

Molloy didn’t like this idea either. Instead, he ordered McLean to put the Parkers on the witness stand on Tuesday,  rather than as the prosecution’s  last witnesses as planned.

McLean had no option but to agree.

You don’t want to mess with the judge, especially Molloy. He gets things his way.

Filed under: W.R. Grace — Andrew Schneider @ 07:40

You don’t want to mess with the judge, especially Molloy.  He gets things his way.

Some people never get the word, and his morning, I’m one of them.
I’m sitting outside the court room in Missoula. Alone. The gaggle of lawyers and onlookers that always assemble early to grab a setting at the W.R. Grace criminal trial aren’t here.

U.S. District Judge Donald Molloy obviously didn’t like the ruling on Friday by the 9th U.S. Court of Appeals overturning his February decision that scheduled witnesses from Libby who were also victims of Grace’s alleged criminal action could not observe the trial.

He has suspended the trial and told the jury to stay home today. In fact, they’re to stay home until the government brings before Molloy each of the 26 “victim witnesses” who have yet to testify.  As I understand it, they will have to testify before the Molloy without the jury.

The prosecution filed two motions saying there was no need to suspend.

Here’s part of Molloy’s order:

“Beginning on Monday, March 2, 2009, at 9:00 a.m., the United States shall call, one at a time, each of the remaining witnesses listed in Doc. No. 897-3. In a closed proceeding, the government shall conduct its entire direct examination of each witness, including specific reference to any exhibits that may be used in the witness’ testimony before the jury. During the examination the courtroom will be closed to the public and to all other witnesses; only the parties, their counsel and support staff, and the government’s case agents may be present. The jury will not be present.”

More later.

March 1, 2009

WR Grace lawyers bring their own stimulus package to Montana but are disappointed at finding no snake skin boots

Missoula, Mont., has more than its share of great eateries. The absolute best burger in the world comes off the tiny grill at the scruffy Missoula Club, or a breakfast of brains and eggs and other memorable fare at Oxford Saloon and Café. This town has a surprising list of high end restaurants that match and even exceed the quality and variety of food purveyors on both coasts where many their of new customers come from.

The pin–strip-suited army of W.R. Grace lawyers, paralegals and assistants are expected to pump hundreds of thousands of dollars into the local economy over the next fours months as they ply their trade in the federal courthouse. Grace and the five former top executives on trial in the nation’s largest-ever environmental crime trial will get stuck with the tab for the classy restaurants, hotel suites and condo.

The “Briefcase Brigade,” as Matthew Frank of the Missoula Independent calls them, are being paid between $200 or $1,000 or more an hour. That’s not just courtroom time and it appears that many of the visiting Easterners are spending some of those bucks looking for a bit of Western motif to adopt.Picture

Yesterday, I was shopping for an extension cord for my computer at a hardware and farm store near my motel. Inside Quality Supply, I spotted two members of the Grace legal team I sat across the courtroom from for days, and a woman wearing a dress. Probably the only one in the store thus attired . Not having a notebook, this is what I recall.

One guy asked a young salesclerk where the snakeskin boots were.

“Snake boots? Right down there,” she said, pointing to shelves of heavy rubber boots used to clean out barns and corrals.

“No, No. Cowboy boots covered in snake skin. And what is mucking anyhow,” the other lawyer asked, pointing to the aisle they’d just left.

“We have lots of boots,” she said, herding them towards the side of the store. “Leather, brown, black, fancy tooling, but no snake skin. Why would you want that anyhow?”

There was a time not too long ago that several stores in or near downtown Missoula stocked the very fancy and exotic boots, including several different snake skin. Not so much anymore, some storekeepers told me.Picture

I peaked through the shelves and watched as the barristers squeezed and grunted their tender feet into five or six different pair of boots.

“These hurt like hell,” said one of the guys. “No wonder cowboys ride horses all the time.”

I burst out laughing and blew my cover.

“Molloy has a gag order about talking to the press. He’ll have our butts if we talk to you,” said the other guy. I assured them that I wasn’t talking, just watching.

A few minutes later the same guy held up the bright turquoise and red shirt with pearl snaps, more often seen worn by line dancers in banged up bars and asked his colleague whether wearing it would win over the jury.

About 20 minutes later, they checked out. One pair of boots, that the young woman bought, eight or nine assorted Wrangler and Carhartt shirts and a tan “Stallion” Stetson.

Looked to be about $650 worth.

As we were all leaving, one said, “Check out the moose store on main street. It’s great.”

Moosecreek Mercantile owner Gary Brikett says his hottest items are the huckleberry candies and jams and the make-believe deer, elk, ram and bear heads. They’re completely suitable for mounting over a gas fireplace in some east coast condo.

If Molloy would have let me, I might have warned the representatives of the nation’s largest law firms to watch their pennies. Newspapers are not the only industry having financial troubles. The Washington Post reported yesterday that Latham & Watkins, one of the world’s largest law firms, fired hundreds of lawyers and associates yesterday.

Wash those shirts gently and watch the pearl snaps.

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