andrew schneider investigates

April 13, 2009

W.R. Grace lawyers fight to show bias in government witness

Filed under: Asbestos,W.R. Grace — Andrew Schneider @ 19:15

I’m back in Missoula and covering the criminal trial of W.R. Grace et al, and it’s like watching a fight where one of the combatants has both arms tied behind his back.

You guess which one.

The first witness to testify today was Mary Goldade. She is a senior project chemist and data quality specialist for EPA who has been babysitting asbestos sampling at Libby and assuring the quality of the testing since the team from EPA’s regional headquarters in Denver arrived in the tiny northwest Montana town in 1999.

She stood strong against David Bernick’s repeated attempts to convince the jury that she was too biased to be fair. Again and again, Grace’s top lawyer asked her about her dealings with the top three experts who responded to Libby first – Paul Peronard, and Drs. Aubrey Miller and Chris Weis.

Of course she worked with them, Goldade explained, for that was her assignment. And, she added, that was why she was in court when Peronard and Miller testified — a fact that Bernick seemed troubled about.

She didn’t allow the lawyer to put words in her mouth as he read e-mails from her to a laboratory contractor which talked about “cherry picking” samples or spending more time working with the prosecution than as a scientist.  When Bernick asked her if any of the tests she evaluated were flawed, she quickly answered yes, about 30 of them.

I couldn’t understand why Grace’s top dog looked so smug at her answer.  Thirty questionable results out of 70,000 samples is an amazingly good record.

He then asked her to discuss some of the aerial photos used throughout the trial with red and green dots added to identify where asbestos was found around Libby and the Grace property.

Bernick and his investigators have got to be given credit for knowing the most arcane aspects of all of the government’s exhibits. For example, there were hundreds, if not thousands, of tiny green-colored dots on the photographs showing locations where asbestos had not been found.  The decision not to put all the dots on the exhibit was made by the prosecution team, she said responding to Bernick’s hammering.

“Your own prosecution team? he asked, sounding stunned for the jury.  “But I oversaw all the pieces,” she tried to add, but was cut off.

On another exhibit, Bernick asked who decided not to include a column of data to the six or eight others on the chart showing air samples from a long work shed on the old Grace screening plant.

“Who specifically made that decision?” the lawyer asked.

He was actually rubbing his hands together and beamed as Goldade answered, “McLean,” the lead government lawyer. Bernick quickly said, “No further questions.”

In his redirect, Kevin Cassidy tried to give Goldade the opportunity to explain what Bernick wouldn’t allow her to say. But that didn’t work out too well.

Twenty-eight times in about 12 minutes Bernick bounced out of his chair as if he were on fire, objecting to almost every question Cassidy attempted to ask Goldade. Molloy overruled four of the objections.

One question that Goldade was asked and did answer was why McLean would have omitted the column showing indoor air from the chart. “He felt it was a question of fact for the jury to determine,” she said.

After the lunch break, the prosecution quickly questioned two former miners who had worked for Grace. They answered the few questions that the government lawyers could get out of their mouths.

By a little after 2 p.m., the jury was released. The prosecution seemed embarrassed. It had run out of witnesses for the day.

Mclean and Cassidy are both experienced enough not to let this happen.  They know how to estimate how long each witness should take.  But almost every day, their timeline is blown to hell. It seems like each line of questioning that McLean or Cassidy begins is quickly torpedoed by Grace lawyers and upheld by the judge.

It’s painful to watch.


1 Comment »

  1. When will the government’s attorneys stand up against Grace’s? Or maybe the question should simply be “Will…”?

    Comment by Brian, Seattle — April 14, 2009 @ 08:20 | Reply

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