andrew schneider investigates

April 21, 2009

What’s in a name? Perhaps the difference between guilt and innocence if the name involves asbestos.

Filed under: Uncategorized — Andrew Schneider @ 21:29

Just what constitutes asbestos is a question that already has made its way from Montana to the 9th U.S. Circuit Court of Appeals and back again. But that didn’t stop the argument from arising again this week in the Missoula courtroom where W.R. Grace and five of its executives face criminal charges for the asbestos poisoning of residents of Libby, Mont.

On Monday, Assistant U.S. Attorney Kris McLean asked U.S. District Judge Donald Molloy to take “judicial notice” of the definition of asbestos. The term means allowing a well-established fact to be introduced without the traditional presentation of evidence and testimony.

The prosecutor wanted Molloy to accept and read to the jury the definition of asbestos handed down by the appellate court, which ruled that asbestos was grayish in color, non-combustible, composed primarily of impure silicate magnesium, and fibrous.

McLean also asked the judge to read to the jurors the rest of the appellate court’s Sept. 20, 2007, ruling on the subject.  In that ruling the three judge panel found that  Molloy was wrong when he “improperly limited the term ‘asbestos’ to the six minerals covered by the civil regulations. Asbestos is adequately defined as a term and need not include mineral-by-mineral classifications to provide notice of its hazardous nature…”

This broader definition means a lot, especially in this trial because of all the angst over what to call the asbestos that has killed and is sickening so many people in and around Libby.

But Molloy only gave McLean half a loaf. He read to the jury the physical characteristics of asbestos outlined by the appellate court, but declined to tell the jury that the 9th Circuit also had ruled that the definition of asbestos “need not include mineral-by-mineral classifications.”

That left open the argument that long has raged over the asbestos found in Libby. And both sides were quick to join that battle again.

McLean introduced into evidence carefully sealed jars with asbestos-containing vermiculite from Libby asked senior U.S. Geological Survey Geologist Greg Meeker to walk the jury through the movement of glaciers over Libby 14,000 years ago that led to the mineral legacy there.

Meeker was the first to determine that the amphibole asbestos found near Libby – long, skinny, dangerous fibers – was a mixture of tremolite, winchite and richterite.

Thomas Frongillo, a lawyer representing defendant Robert Bettacchi, a former Grace VP, cross examined Meeker and quickly moved to the argument that none of those three fibers were among the six forms of the mineral commonly considered dangerous.

Grace lawyer Scott McMillin argued over the colors of the different types of asbestos and then used several maps showing the movement of glaciers over Libby 3,000 to 15,000 years ago to support his contention that the asbestos contaminating the small town did not come from Grace’s mine but occurred naturally in Libby’s soil.

In his redirect of Meeker, McLean got him to explain to the jury why the glacial theory did not work.

For those of you who want more, here is a link to the appellate court’s definition of asbestos:

Even if the jury remained confused by the question of what asbestos was, the government pushed hard to prove that the health effects for the people of Libby were beyond dispute.

Prosecutors ended their day Monday with testimony from Dr. Richard Lemen, a former Asst. U.S. Surgeon General and past deputy director of National Institute for Occupational Safety and Health, the workplace safety research arm of the Centers for Disease Control.

Lemen is an epidemiologist and specializes in identifying the sources of disease. And he quickly got to the point the prosecution wanted made.

“Yes, there was an imminent risk of (asbestos) exposure to the people of Libby,” Lemen said.

Bernick soared to his feet and immediately objected. He was overruled by Molloy, which stunned much of the court.

Lemen said asbestos was all over Libby. And the more asbestos pathways people are exposed to, the greater the accumulation of the lethal fibers will be in their bodies.

Bernick repeatedly asked Lemen about exposure studies done at Libby or the mine.

Lemen asked to see the studies saying “I am not going to lay memory games with you.”

Bernick and Lemen sparred vigorously over epidemiological studies on the victims in Libby.

“Show me the study and I’ll answer your questions.  I’m not going to guess, it’s too important.”

Lemen stood his ground and refused to parrot Bernick’s words.

“Stop,” Molloy bellowed at Lemen. “You’re here to be a witness. I don’t want to have to intervene with every single question.  If you want to be a lawyer, go to law school.”



  1. But Andrew, you’ve just got to tell us the outcome of the Lehman testimony after Molloy “bellowed” at him to “stop” and not play lawyer. Was Dr. Lehman forced to testify on assertions made by Bernick on the findings of the study?

    Comment by kept-breathless — April 22, 2009 @ 14:09 | Reply

    • Cate, Dr. Lemen had already addressed the issue vital to the prosecution – the existence of imminent danger in Libby – and Grace’s lawyer appeared so angry that he didn’t push ahead. Thanks for asking.


      Comment by Andrew Schneider — April 22, 2009 @ 14:37 | Reply

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