The Register-Herald, Beckley, West Virginia

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March 24, 2011

Testimony coming to close in lawsuit

Testimony is nearing its end in a class action lawsuit in Raleigh County Circuit Court in which plaintiffs are advocating medical monitoring for Marsh Fork Elementary students they say were exposed to coal dust from Massey Energy’s Goals Coal silo.

As the trial resumed Wednesday, lawyers for the plaintiffs continued with the cross examination of defense witness Dr. Dave Emmitt.

Kevin Thompson asked Emmitt about his testimony from Tuesday, dealing with a spike on a graph.

“You said that there are times in your career when you can’t explain something,” Thompson said. “You testified Tuesday that this could have been patch of fog, meandering cloud or tampering?”

Emmitt said that was correct.

Thompson then referred to dust fall collecting, which was done around the Goals Coal facility and surrounding property for a period of about five years.

Thompson referred to a map depicting where dust fall collectors were located along with a corresponding graph that listed the readings of each monitor. Some were located right on the Goals Coal property. Thompson noted that the closer the monitors were to the silo, the higher the readings.

Emmitt explained that, saying the collectors were mainly used for capturing larger particles, about a 16th of an inch.

“The probability of capturing PM10 is very low,” he said.

Thompson later asked Emmitt to read a document in which Goals Coal outlined the motivation of such testing. The document stated that Goals wished to construct a second loadout silo close to the existing one.

“This is a standing, yet unquantified concern about coal dust being a health and nuisance in the school,” Emmitt read. “Goals Coal desires to make a case for its expansion plans and considers some form of quantification as necessary.”

During redirect, defense attorney Dan Stickler asked Emmitt to clarify that the dust fall collector was for the proposed second silo. He then clarified that plans for this silo were abandoned.

“So why did you continue to do dust collecting?” Stickler asked.

“Well, ask those who let it go on,” Emmitt said. “What usually happens is that once you have this info, you need to see how it changes over time. I think that’s the reason why.”

Stickler also asked Emmitt to clarify that these monitoring devices do not measure PM10.

“It’s designed to frustrate a particle that small from getting in,” Emmitt said. “Not that they can’t get in.”

Stickler then referred to the mysterious spike that Thompson had asked Emmitt about.

“Now, we’ve gone through this before,” Stickler said. “Your testimony is that you don’t have an explanation for this. It could be a cloud. But the signature shape of the spike is not related to any activity of the coal loading silo.”

“No, any time you measure loading activity, there are spikes,” Emmitt answered. “And if wind direction is changing, the variability changes. It’s too nice and clean of a signal to be explained by (activity from the silo). I offered alternative explanations for it, but I don’t know for a fact.”

Stickler then called his next witness, Dr. Peter Valberg, an expert in public health, toxicology, epidemiolgy, risk communication and ionizing radiation.

Stickler brought former testimony by plaintiff witness Dr. Charles Werntz to the forefront, saying that his tests were based on PM10, the thoracic level, and not PM4, the respirable level.

Valberg agreed and said that PM4 was the correct standard.

By using this quantity of PM10, Stickler said Werntz was comparing “apples to Volkswagens.” He asked Valberg if this was the case.

“It’s not correct to use PM10 on a PM4 standard,” Valberg said, “You need to reduce it by a factor of two. Out of that PM10, a lot of the readings was just background ambient particulate.”

Valberg said that the data was “not very complete,” when asked about his understanding of the level of PM4 coal dust based on the readings from the playground monitor.

“The average hovered in a vicinity around 30 micrograms, even with the overestimation,” Valberg said. “Undoubtedly, there is some coal dust, but the quantity is very small.”

Stickler asked if this level would result in pneumoconiosis.

“In no matter could I see that would happen,” Valberg said. “It couldn’t create a disease problem because at that level of exposure, the lungs could clear it out.”

Valberg also noted that all substances are toxic dependent on dose. For one to have health problems resulting from coal dust, Valberg said the levels would have to be much higher, and the duration would have to be longer.

Matters heated up during Thompson’s cross examination. He asked Valberg if risk communication should have been done by Massey. Valberg said he didn’t know what he was talking about, and Thompson asked again, “How about the coal dust the children are breathing?”

Valberg answered that this amount was not a significant amount.

“How much coal dust will be put in their lungs before there is a question of issue,” Thompson asked.

Valberg answered that the kids would not be exposed to the dust for long periods of time and reiterated that the level is not that much.

“Some particles wouldn’t deposit in the airways,” Valberg said.

Thompson argued that this is the reason Werntz wanted to test for PM10 to begin with. Thompson asked if Valberg agreed that PM10 includes the respirable fraction of PM4.

“The airways are covered with mucus so that particles won’t deposit and don’t have the opportunity to penetrate into the lungs,” Valberg said. “That’s why the standard is set at respiratory (PM4).”

Thompson asked if that were the case for all the particles that were breathed in, and Valberg answered that there might be some that remained, but they would eventually clear out as well.

“The airways are cleared within 24 hours,” Valberg explained. “Some are not cleared in that time, but the mucus is acting continuously, and eventually all of that will be moved.”

Thompson referred once again to Werntz’s testimony in which Werntz said that these coal dust particles are “shards” and that the white blood cells are unable to take them out of the body. Valberg disagreed.

“They’re not shards,” Valberg said. “They may exhibit sharp edges, but I have not seen in the evidence presented that this particular kind of coal is not cleared by the lung cells.”

Thompson asked if there was an airborne level at which Valberg deemed there was no risk, and Valberg said that 90 micrograms is an appropriate extrapolation.

During redirect, Stickler said that it sounded like Thompson didn’t like Werntz’s number.

“You recall Dr. Werntz testifying about 90 micrograms per cubic meter of air was a level at which he would be worried about the children.”

Valberg said that was his understanding. Stickler asked if he agreed with that, and Valberg said that he did.

The defense then called their last witness of the day, Ronald E. Gots, an expert in toxicology and environmental/occupational medicine.

When asked if coal dust could cause asthma, Gots said this was not possible.

“Coal dust doesn’t cause asthma,” he said. “Someone who has asthma might find an irritant effect of coal dust or fine particulate.”

Stickler then asked if it were possible for asthma to be latent.

“There’s no such thing as latent asthma,” Gots said. “It’s defined as an inflammatory disease. It’s not asthma until a person shows clinical evidence of asthma.”

As for children developing pneumoconiosis, Gots said the idea was “preposterous.”

“There is no risk of contracting pneumoconiosis for levels like that,” he said. “There has never been a diagnosis outside of workplace exposure.”

Gots was then asked if he would be in favor of medical monitoring and he said “absolutely not.” He said the reason is because it would not be necessary and has the potential to be dangerous.

“Part of what (Werntz) was recommending is that children with positive questionnaires would go through this testing, and that’s reckless,” he said. “Methacoline tests like what he recommended make airways constrict to cause an asthma attack, and that’s scary. It’s almost never done on children, and it can be dangerous.”

Stickler said to be fair, the methacoline tests would only be for children who exhibited evidence of asthma, but Gots held strong on his opinion.

“To take people with evidence of asthma and give them an asthma attack? That’s not done,” he said. “I don’t know why you would do that.”

During cross, Thompson addressed Gots’ credentials, asking the witness when he last performed clinical work.

“Wasn’t it 30 years ago?” he asked.

“No, I have done lots of clinical work, but I haven’t had an office practice,” he answered.

Thompson then addressed an earlier issue in which one of the companies Gots worked for was described by a federal judge as “a bogus operation.” Gots answered that this initial case was overturned by the Supreme Court.

“I know we weren’t a bogus operation,” Gots said. “I know what we did, and the statement was wrong.”

Thompson then changed gears to Gots’ deposition.

“You testified in the deposition in this case that your opinion might change based on showing of a correlation of loading the coal in the silo and the dust in the school.”

“It might change my opinion on coal getting into the school but not my opinion on health effects,” Gots responded.

Testimony will resume at 9 a.m Thursday.

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