March 11, 2009
All posts for March 11, 2009, in reverse chronological order. Read from the bottom up.
Grace Continues Cross-Exam of Dr. Miller
After a brief afternoon recess, Grace continued its cross-examination of Dr. Miller. The cross examination was broken down into two parts: the presentation of a statistical study by the defense that contradicts Miller’s testimony about certain low-dose diseases and their ties to COPD and lung cancer, and; the presentation of evidence by the defense that various government agencies, including the EPA, OSHA, and the Consumer Products Safety Division, knew of harmful asbestos in Libby vermiculite as far back as 1971, and failed to take any action to remedy the problem for decades.
Dr. Miller’s role as a central figure in the EPA’s 1999 investigation of Libby makes him an important witness for the prosecution, but it also makes him an important witness for the defense, especially regarding the knowing endangerment charges that have been filed against Grace. After Bernick finished his cross-exam of Miller by pointing out differences in his opinion and the results of a particular study that found no statistically significant correlation between COPD and lung cancer and asbestos exposure at low dosages, Frongillo began a line of questioning that will likely play a significant role in the trial.
Two of Grace’s primary defenses in this case are: (1) that the U.S. Government and the State of Montana had a chance to prevent this from happening, and (2) that Grace did not have a duty to disclose evidence that merely corroborated what the government already knew. Today, those in the courtroom saw the beginnings of this defense. With a well-prepared chart and calendar, the defense established that Dr. Miller was called to Libby in 1999, but, by 1971, the EPA knew that Libby vermiculite contained harmful asbestos particles — only months after EPA’s formation in 1970.
The defense also presented evidence that the vermiculite obtained from Libby was used at a Scotts Turf Builder factory in the 1970s, and that several workers at the factory developed abnormal plaques in their lungs due to intense exposure to Libby vermiculite. As a result, an EPA priority review report was triggered after O.M. Scott self-reported incidents of worker injuries from asbestos exposure. Not only was the EPA included in the investigation, but OCEA and the Consumer Products Safety Counsel also played important roles in it. The final report found as many as 32 abnormal chest x-rays in workers at the O.M. Scott factory. In other words, according to the defense, the EPA, OCEA, and the Consumer Products Safety Counsel knew as early as 1980 that Libby vermiculite was a harmful product–at which time Dr. Miller and Paul Peronard, two central figures in the eventual large-scale Libby cleanup efforts, were young men.
Grace’s meticulous recitation of the government’s knowledge of the dangers of Libby vermiculite suggested that Grace’s defense in this case is to raise simple questions to the jury: Why did it take so long for the EPA to step in and help people in Libby? Why wasn’t the government warning Libby about the dangers of the vermiculite it was mining and shipping across the country?
If the Grace defendants can successfully impugn the government’s handling of the Libby area, they may successfully deflect enough attention from their own conduct to seriously undermine many of the government’s star witnesses, or at least the agencies they worked for.
At the end of the day, Grace indicated that no fewer than three defense attorneys (including Frongillo) would question Miller tomorrow. If today’s developments provide any guidance, the court will hear a barrage of examples of how the government, despite its knowledge of the problems in Libby, took decades to help the citizens in Libby, and acted only after a Seattle Post-Intelligencer article put Libby on a national stage.
Michael Doggett, 11:40 P.M.
No rest for the weary Dr. Miller
Dr. Aubrey Miller spent all day Wednesday on the witness stand, fielding questions by defense attorneys who sought to weaken his testimony. Much of the cross-examination of Miller focused on what he knew early on about the Libby situation and how that affected his actions.
Defense attorney David M. Bernick, the lead attorney for W.R. Grace, took the majority of Miller’s time. Bernick repeatedly asked Miller why he didn’t tell Libby residents that their community was in an emergency. Bernick cited internal EPA documents that named Libby an emergency site, and pointed out that funds for EPA work in Libby were granted because of its emergency status and that a risk-assessment test was not done because of the same reason.
Why then, asked Bernick, didn’t the government tell anybody living there?
Miller said they did. But Bernick said the government retained significant information and didn’t act on it, even when federal investigators knew people were living on contaminated land. Miller said the government waited to tell people to move off their land until they knew the extent of contamination and understood where it was worst.
Bernick phrased the question of why the government withheld information and failed to act in different ways, coming at it from different angles and citing specific examples. Miller replied that as the government received additional information on the extent of contamination, the affected parties were informed.
Bernick ended his questioning of Miller by referring to a report by Dr. Patricia Sullivan, and focusing on a figure that correlated low-dose exposures to asbestos with pulmonary disorders. The discussion between Bernick and Miller over the figure focused on whether or not someone exposed to low levels of asbestos had a higher incidence of non-malignant respiratory disorders, and whether the report showed a positive statistical correlation between the two.
Bernick said there was no correlation at certain levels, but Miller said a trend was evident. Bernick said statistical significance is the scientific value that establishes a correlation between cause and effect, and there wasn’t one here. Miller agreed.
That was the end of Bernick’s cross-examination. Defense attorney Thomas Frongillo, representing defendant Robert Bettacchi, stepped up to continue questioning the government’s witness.
Frongillo worked to establish a sequence of events and had a timeline he used to illustrate when those events occurred. Frongillo wanted to know when Miller first visited Libby; when he had the sampling results; when he attended town meetings in Libby; when he met with EPA personnel Paul Peronard and Wendy Thomi; and when the government had reports of other sites contaminated with Libby vermiculite, such as the O.M. Scott Co. facility in Marysville, Ohio. As Miller answered, Frongillo marked all of these dates on the timeline.
He also put on the timeline the EPA’s inception in 1970 and the first time Grace notified the government of its concerns about contaminated vermiculite in 1971.
So EPA has known about possible health effects from exposure to Libby minerals for its whole life, Frongillo said.
And Miller said that was correct.
The afternoon ended when Frongillo wanted to look again at the timeline, and Judge Donald Molloy said the next timeline the court would look at was the afternoon recess. Court let out for the evening.
– Will Grant (posted 7:25 p.m.)
Posted: March 11th, 2009 under News.
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Contentious cross-examination continues
Cross-examination of Dr. Aubrey Miller by the defense counsel, David Bernick, resumed this afternoon as Bernick sought to discredit Miller and the Environmental Protection Agency by showing statements and internal documents dating from 2000 and 2001, early in the cleanup, that appeared to contradict statements made by Miller more recently.
These included a letter from EPA on-site coordinator Paul Peronard to a realty company based in Libby, which stated that they had found no asbestos concentration in the ambient air in Libby outside of the vicinity of the vermiculite processing area, and that there was “to date no risk” of exposure through that pathway.
The questioning quickly became contentious.
At one point, Bernick displayed a document titled “Draft Conceptual Site Model,” then asked Miller if this was the Draft Conceptual Site Model. As people in the gallery chuckled, Miller thought about his answer for a moment, then replied, “That’s what it says.”
It was a refrain that continued until the afternoon recess. As Bernick repeatedly asked Miller to confirm information about a number of the prosecution’s demonstrative exhibits, Miller would reply the same way.
Bernick claimed that none of the demonstrative exhibits shown to the jury described actual risk, which takes into consideration units of exposure over time, as opposed to simple exposure levels. He then went further, asserting that the EPA has never done “a full, formalized, scientific risk assessment” in Libby.
He claimed that because the EPA had declared Libby an emergency cleanup situation, they were able to get funds without doing a comprehensive study.
Bernick then asserted the EPA had not informed people whose properties were on the cleanup list that they specifically were in an emergency situation that would require them to leave their homes. He referred to Mel and Lerah Parker, who testified last week, claiming that there was a gap of several months between the completion of an EPA exposure assessment at their property and the time when they left the property, in June of 2000.
“When it came to the Parkers, the EPA didn’t tell them to move off the former screening plant property right away, did they?” Bernick asked.
“I don’t think we understood … the risk to the Parkers until several months later,” Miller replied. “We moved them off the property as soon as possible.”
Returning later to the same point, Bernick hammered Miller with questions about the EPA’s communication with Libby residents, summoning the image of Mel Parker working in the garden on their property near the former screening plant without a respirator after the EPA’s sampling study was completed.
“All the people who were still living in areas that were on the emergency cleaning list … did you tell them that there was an emergency?” Bernick asked.
“I never told them that specifically, no,” Miller replied. “We told them not to disturb [the vermiculite] … we told them there was an emergency cleanup going on in the town.”
With time running out before the afternoon recess, Bernick focused his questions on the presence of vermiculite and tremolite in the soils of Libby before the mine, and claimed that no epidemiological study has observed the causation of disease at the Permissible Exposure Level (PEL).
Bernick’s questioning of Miller will resume after the break.
–Daniel Doherty (posted 3:31)
Posted: March 11th, 2009 under News.
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Bernick suggests EPA hiding information from jury
After the lunch break, defense attorney David Bernick spent another two hours cross-examining Dr. Aubrey Miller. Bernick appears to be attempting to undermine Dr. Miller’s opinion that the asbestos contamination in Libby poses an ongoing endangerment to the people in Libby.
Bernick’s cross-examination focused on several tacks. While Bernick largely did not challenge the data that Dr. Miller testified to on direct examination, Bernick suggested through his questioning that Miller’s opinion is based on incomplete information, that his opinion conflicts with the EPA’s representations to Libby residents, and that the EPA is hiding information from the jury.
At several points, Bernick questioned Dr. Miller about exhibits demonstrating exposure to asbestos that were used during Miller’s direct examination. Bernick highlighted that only one of the exhibits simulated human activity, namely the sweeping of the long shed at the former screening plant, while the others related to asbestos exposure levels of EPA workers who were conducting cleanup activities. The cleanup activities, Bernick noted, involved the use of bulldozers and other heavy equipment, and were disturbing soil in a way usual human activity does not. Miller agreed that the exhibits all dealt with exposures measured during cleanup work. In response to Bernick’s repeated questions about whose decision it was to present information about EPA cleanup worker exposure to the jury, Dr. Miller stated it was an EPA “team decision.”
Furthering his suggestion that the information was incomplete and that the EPA was hiding information, Bernick asked Dr. Miller a series of questions about how the government’s exhibits were prepared. Dr. Miller conceded that one of the government’s demonstrative exhibits left out a notation found in EPA documents that the screening plant long shed was “indoor air.” Dr. Miller agreed that there was a logical inference that could be drawn that the government had left “indoor air” off the exhibit because it conflicted with the government’s contention in this case that the screening shed is outside—and thus, “ambient air” for Clean Air Act purposes. Bernick also highlighted that several of the government documents left out other means of calculating asbestos exposure.
Bernick’s cross-examination of Dr. Miller will resume after the afternoon break.
– Andrew King-Ries
Posted: March 11th, 2009 under Law.
Tags: Bernick, Miller
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Tests don’t prove asbestos is lethal, Bernick says
There are tests that show asbestos has negative health effects and that an unusual percentage of Libby residents have asbestosis and other diseases linked to the mineral. Those tests, however, do not prove that asbestos is lethal, said W.R. Grace attorney David M. Bernick in court during a cross-examination that seemed more like a game of tug-of-war.
Wednesday morning, Bernick asked Dr. Aubrey Miller, a toxicologist for the federal government, if scientific tests and statistics are necessary to prove cause and effect relationships.
“Not in every case. If I burned my hand with acid, I don’t need a test to prove that,” Miller said, eliciting giggles from the audience.
“Let me clarify,” Bernick said. “We’re saying there needs to be tests to prove long-term diseases can come from environmental toxins.”
“I disagree,” Miller said.
Bernick looked at Judge Donald Molloy, and said Miller was being non-responsive. Molloy advised Miller to listen carefully to the questions.
Rephrasing his question a third time, Bernick asked Miller if specific disease studies are required to prove that asbestos causes asbestosis.
“Not always. I think you can sometimes use outbreak investigation, there are many tools,” Miller said.
Bernick then referred to a large white board that was propped in the middle of the courtroom, blocking the defendants’ view. The defendants, W.R. Grace executives and managers, couldn’t see what was on the board. Depending on their position in the room, some likely had a hard time seeing Bernick, Miller and Molloy.
All of them could clearly see, however, the members of the jury sitting directly across from them. An older woman with graying hair sat in the jury box, clutching a Kleenex in her fist and resting her chin on her knuckles. A young, blond juror yawned.
Bernick displayed a study conducted by the Agency for Toxic Substances and Disease Registry to the court, which had information on people in Lincoln County, where Libby is located, who have asbestosis.
The chart showed, Bernick said, that the cases observed in Lincoln County were no different than they were in Montana and the U.S.
Miller interrupted Bernick to point out that the chart excluded miners.
“I’m going to get to that,” Bernick said.
Miller also pointed out that the study was being used out of context because it was just one piece of a larger study.
“I’m going to get there,” Bernick said. “Would you be more comfortable if I took the chart off?”
“No, no,” Miller said with a tense laugh.
Bernick fiddled with the chart, seeming to become frustrated when the page turned and another chart came up. He called to somebody else to fix it.
One part of the table showed that one person in Libby who was not exposed to occupational hazards – someone who wasn’t a miner – had gotten asbestosis and died from it. This woman had been exposed to asbestos by living with her husband, who’d worked at the Libby mine for 20 years. Therefore, this woman had been exposed to occupational hazards, Bernick said. And, if she were excluded from the list for that reason, there would be zero cases in Libby, and it would be the same as most other places in the United States.
A crew of Libby natives, sporting cowboy hats and oxygen tanks, listened as Bernick talked about the one person in Libby who had been shown in the study.
“I wanted to raise my hand and say, ‘Well, here’s number 2,’” Larry Hill, a Libby man who now has asbestosis, said when court was adjourned. Hill said he never worked at the mine.
Posted: March 11th, 2009 under News.
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Dr. Aubrey Miller’s Cross Examination continues
After the Wednesday morning break Dr. Miller’s cross examination by defense attorney Bernick continued with Bernick making frequent notes and graphs on a whiteboard for the jury’s benefit. Bernick started the morning attacking the causation element from both the timeframe and validity of reports aspects. Bernick highlighted that for the people currently known to have asbestosis or mesothelioma, their exposure occurred anywhere from 1954 to 1980, and at the latest from 1990, and that none of the cases currently known had first exposures after 1999.
Bernick next moved on to attack the validity of the studies themselves as being merely case studies or case series, which are at the bottom of the scale of quality of studies on human epidemiological issues. Dr. Miller was not cooperative and kept trying to say that for the questions he was trying to answer case studies are entirely appropriate. Bernick often showed frustration at Dr. Miller’s refusal to answer in yes or no responses and at least three times moved the court to strike the answer as non responsive. All were granted, and Molloy admonished Miller to pay more attention to the questions.
Bernick’s next line of questioning focused on the fact that the only epidemiological studies done in Libby were the NIOSH and McDonald (mortality) studies done in the 1980s and these focused only on miners or mill workers and covered exposures that began before 1970. In 2002 ATSDR did a study on the community of Libby and this is the report Bernick moved to next. Bernick showed defense exhibit 6449, a report titled Mortality in Libby, Montana 1979 – 1998, in particular Table 8 Combined Respiratory Mortality Excluding Former Workers in Central Lincoln County, 1979 – 1998.
Table 8 shows the number of people who died between 1979 and 1998 from a variety of respiratory ailments including mesothelioma, asbestosis, lung cancer and other diseases and compares those numbers to Montana populations and to US populations to look for increased incidents in Libby. Bernick focused in on the one non-worker death in Libby from asbestosis because Dr. Miller testified in direct that this was an extraordinary finding since the expectation is zero. Bernick’s argument was that that one person, Mrs. Vatland whose husband worked at the mine for almost 20 years, wasn’t an average community member, but that she should be classified as occupational exposure due to her husband bringing home asbestos dust every day from work. Dr. Miller repeatedly protested the use of this table for comparison since the Libby mortality numbers represented community, non-occupational populations while the comparison numbers from Montana and the US were mortality rates for the entire population including occupational exposure to asbestos, thereby comparing apples and oranges. This elicited another motion to strike for non-responsiveness from Bernick.
Bernick finally got Dr. Miller to admit that if Mrs. Vatland was removed from the non-worker population of Libby, the community incidence of asbestosis death in Libby is the same as the rest of Montana and the United States. He next attacked Dr. Miller’s credibility by asking him if he ever publicly wrote or said that the study was faulty. Dr. Miller said no and tried to explain that he didn’t think the study was faulty, just Table 8.
The last topic before the lunch break Bernick covered was the relationship between dose and disease. He charted for the jury how dose is measured in fibers per cubic centimeter per year as if a person were exposed to a certain number of fibers per cubic centimeter for an entire year, and that even if a person had a short intense exposure it is expressed in this term, called fiber years. Bernick’s point of this line of questioning was that you cannot get to a dose without factoring in a time element as well as the number of fibers a person is exposed to.
Janet Harrison
Posted: March 11th, 2009 under Law.
Tags: Bernick, Miller
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Cross-Examination of Dr. Miller Begins
This morning the defense began cross-examination of Dr. Miller. Mr. Bernick conducted the cross-exam for the defense. Mr. Bernick began by displaying a large dry-erase board and wrote on it throughout the cross-examination. Before questioning of Dr. Miller began, Mr. Bernick noted on the board that that the endangerment charge focuses on ambient air in the Libby community after 1999. An objection from the prosecution that the charges are broader was overruled by Judge Molloy.
Mr. Bernick’s initial questioning of Dr. Miller focused on risk assessment. Specifically, he tried to elicit from Dr. Miller whether risk assessment was quantitative, qualitative, or both. Mr. Bernick brought up Dr. Peronard’s testimony in which he testified that risk assessment is quantifiable. He elicited from Dr. Miller that risk assessment is both quantitative and qualitative. Dr. Miller attempted to elaborate on his reasoning by referring to the ATSDR study, but was cut-off by Mr. Bernick who noted that under a previous ruling by Judge Molloy, such a reference was not permissible. Dr. Miller also stated that a goal of risk assessment is to be objective.
Mr. Bernick’s next line of questioning focused on Dr. Miller’s testimony given on direct. Specifically, he questioned the testimony of Dr. Miller given on the topic of Ms. Vatland who died from asbestosis. Ms. Vatland’s husband worked at the mine. Mr. Bernick tried to cast doubt on Dr. Miller’s credibility by attempting to show that his characterization of Ms. Vatland’s exposure as “unheard of” was inaccurate. Mr. Bernick suggested that Ms. Vatland’s asbestosis was caused by exposure to asbestos from her husband’s work clothes and thus it was not from exposure to the ambient air. He elicited from Dr. Miller that exposure had to have occurred prior to 1999.
Next, Mr. Bernick focused on Dr. Whitehouse’s prior testimony. He stated that Dr. Whitehouse had testified that asbestosis is not just interstitial, but can also be from pleural plaques. He elicited from Dr. Miller that he believes asbestosis is interstitial and that he never saw Ms. Vatland’s death certificate. Mr. Bernick was trying to infer that Dr. Whitehouse’s characterization of asbestosis contradicted Dr. Miller’s because it did not include pleural plaques. Dr. Miller responded that if one dies from pleural plaques there must be asbestosis (meaning interstitial). He added that while it may not show up radiologically it will be found pathologically, meaning that if one examines the deceased’s lungs interstitial damage will be found. Mr. Bernick tried to suggest that we don’t know if Ms. Vatland died of asbestosis under Dr. Miller’s definition because we don’t know if Dr. Whitehouse filled out the death certificate, thus she could have died of pleural disease only.
Mr. Bernick continued to focus on whether asbestosis is interstitial or can result from just pleural plaques. His questioning was designed to show a disagreement among the scientific community on this issue. Dr. Miller stated he disagreed that there was a dispute within the scientific community that asbestosis is interstitial. Dr. Miller based his opinion on statements made by the American Thoracic Society.
Mr. Bernick introduced several publications in an effort to show pleural plaques do not cause asbestosis. One of these articles came from the Helsinki Accords of 1997 and stated pleural plaques are usually asymptomatic (exhibit 6162). Dr. Miller pointed out that it would be more relevant to examine the 2004 publication. Another article came from Occupational Disorders of the Lung and stated that plaques are not likely to progress to cause symptoms in the future. Dr. Miller disagreed that this publication was authoritative because he had not reviewed it. Mr. Bernick also questioned Dr. Miller’s qualifications by eliciting from him that he had only published one peer review article on asbestos. Dr. Miller stated that he is an authority in the field of asbestos as it relates to environmental asbestos.
In short, Mr. Bernick’s cross-exam focused primarily on trying to show Dr. Miller omitted information from the jury on direct, disagreed with previous experts, and calling his expertise into question. At times the cross-examination appeared contentious with several motions by Mr. Bernick to strike as being non-responsive. At one point during the cross-exam the court reporter interrupted to ask that Dr. Miller and Mr. Bernick not speak at the same time so that she could accurately record the testimony.
-Robert Lishman
Posted: March 11th, 2009 under Law.
Tags: , ATSDR, Bernick, Miller
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Bernick endeavors to discredit Miller in cross-examination
The pulsing of a single oxygen tank attached to a former Libby, Mont., resident marked the passage time Wednesday morning like a metronome in the ongoing trial of the United States v W.R. Grace.
The morning kicked off with the cross-examination of expert witness Aubrey Miller by defense attorney David Bernick, but did not continue smoothly. Miller often balked at answering Bernick’s questions directly, offering explanations instead.
Judge Donald Molloy allowed the tug-of-war style of questioning to continue throughout the morning, telling the jury to ignore two of Miller’s answers because they did not apply to Bernick’s question.
In an attempt to discredit Miller’s expertise, Bernick reviewed earlier statements made about asbestosis by witnesses Alan Whitehouse, a pulmonologist, and Environmental Protection Agency on-site coordinator Paul Peronard in their respective cross-examinations. When asked if he agreed or disagreed, Miller said he felt as though each one had answered questions to the best of their knowledge.
“With respect, with how many people in Libby are you in the diagnosing position?” Bernick said.
Bernick continued to paint a picture of Miller’s tarnished credibility to the jury when he asked him to discuss the legitimacy of his own asbestos-related findings compared to those of other scientists.
“Have you ever written a peer-reviewed publication that is considered authoritative?” Bernick said.
Miller said that he had written about asbestosis, but just because he hadn’t written a book did not mean that he was ill-informed.
“I am an expert in this area,” Miller said.
Two hours after the cross-examination began Molloy stopped the questioning for a 15-minute recess.
- Elizabeth Diehl
Posted: March 11th, 2009 under News.
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Miller continues testimony, explains EPA testing
The U.S. government funneled much of its case through expert witness Aubrey Miller early Tuesday afternoon. The prosecution presented and entered into evidence numerous demonstrative exhibits and studies in which it asked Miller his opinion and how he came to the conclusion that Libby was unsafe and in desperate need of a cleanup.
Miller spoke quietly and slowly, looking at the jury most of the time, as he explained the science behind the testing that the EPA conducted in Libby. He kept a large binder of documents at the stand and read from it when citing examples of test results.
“I’m really trying to make this concept as clear as I can,” Miller said.
That concept is that of asbestos levels in a testing sense. There are several numbers, figures and benchmarks from different entities that conclude what is a safe level of asbestos. For example, the Occupational Safety and Health Administration standards of permissible levels differ from the Environmental Protection Agency standards. At one point, Miller said that even if a testing site results in figures below the permissible level, the area can still be contaminated and dangerous.
One test included simulating Libby residents’ activities and recording the asbestos levels produced by those activities. These simulations included children playing in the dirt and adults raking and adults mowing the lawn. No children were involved with the particular test; rather, EPA workers would sit in the dirt with a plastic shovel and pale and dig around, according to Miller.
The defense objected to nearly every test result chart entered into evidence. Nearly every objection was overruled. But just prior to the afternoon recess, defense attorney David Bernick told Judge Donald Molloy that the afternoon was merely a “document exercise” and that the prosecution nearly presented its entire case through a single witness. Bernick implied that his team needed the rest of the day to prepare to cross examine and figure out who is going to ask which questions.
Molloy agreed with Bernick’s response to the afternoon testimony and asked McLean if he had a lot more exhibits and tests to go over. The government, in fact, had several more documents to go over.
At this point, Miller had stepped down from the stand and an unidentified individual sitting next to his seat in the audience said, “You’re lucky they’re probably not going to cross you today.”
-Kelsey Bernius (posted 11:45 pm)
Posted: March 10th, 2009 under News.
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