Preliminary hearing for Town of Andrews

Featured is the Adams County Circuit Court building, in Decatur, where the Andrews vs. Raytheon court case took place.
Featured is the Adams County Circuit Court building, in Decatur, where the Andrews vs. Raytheon court case took place. Photo by Katelynn Farley.

Testimony in the court case between the town of Andrews and Raytheon Technologies continued over the course of two days.

The court proceedings began on Monday, Nov. 9, and continued on Tuesday, Nov. 17. Both sides met from 1 p.m. to about 6:30 p.m, on Tuesday and picked right back up on the morning of Wednesday, Nov. 18, going from 9 a.m. to 1 p.m.

Tuesday’s court proceedings were spent wrapping up expert testimony for the side of Andrews, with the court hearing via remote the testimony of Dr. Kathleen Gilbert, a current adjunct professor at Colorado State University.

Gilbert also spent 24 years at the University of Arkansas, gaining tenure and teaching both medical students and graduate students classes like vaccine development, molecular immunology, bio-chemistry methods, molecular toxicology classes and more.

In addition to this experience, Gilbert is also a member on the 19-person committee on the Environmental Protection Agency (EPA) Safety Advisory Committee (SAC). All of this experience was vital to the plaintiff’s case and was the subject of several objections by the defendants.

According to the objections made by Joe Eaton, the lawyer for the defendant, made several objections during the time of questioning, stating that a certain line of questioning regarding cancer would be inappropriate to be answered by Gilbert because she was not an expert in cancer and was not a medical doctor.

The objections were overruled by the court because of her background in educating students on subjects such as toxicology and the damage that toxic chemicals can do.

The defendant also claimed that, due to the fact that the witness was on the committee for the EPA, and was also being paid by the Taft Law Firm to testify in court, that she had a conflict of interest with her work and the case. Gilbert said that this was not the case and that she had previously alerted the committee of her work and had also testified before as a paid consultant and there had been no issues regarding prior testimonies given.

After completing the questioning and cross-examination of Gilbert, the defense called on their first witness, which brought immediate objection by the plaintiff.

The first witness called by the defense was Martha C. Mettler, of the Indiana Department of Environmental Management (IDEM). The representatives for Taft Law Firm had taken this to mean that Mettler would appear in person or via remote to court. However, the witness information was merely found within a sworn affidavit.

Objection arose due to the fact that the plaintiff could not cross-examine the witness and because, though the witness’ name had been on a list since Nov. 6, the plaintiff had never been told that the witness would not be appearing in court.

Judge Chad Kukelhan allowed the testimony in, stating that IDEM is on the witness list and that “it is not impossible to depose.”

The next witness to approach the stand, via remote in Freeport, ME, was John L. Baron, remediation project manager at Raytheon Technologies. Baron has spent 14 years as a remediation project manager, working with technical experts and overseeing experts at clean up sites. Before working for Raytheon, he spent 16 years as an environmental consultant.

Baron testified that Raytheon voluntarily installed the air stripper in question because of “low-level detections of [volatile organic compounds]” and that the air stripper was used as a safeguard.

Baron also explained that, because of the way that the water is treated and goes through the air stripper, that no VOC’s above the maximum contaminant levels (MCL’s) set by the EPA.

The third witness of the night, John McInnes, of Stantec, was questioned by Alexandra Reichard.

Stantec, a company that is hired by Raytheon to ensure that the air stripper is functioning properly, testified to how the air stripper works and what it does to ensure that the town’s drinking water is clean. He also testified that he believed the air stripper was “reliable” and that there were no problems or alarms that occurred within the six months leading up to the failure of the air stripper.

Day three of the hearing saw two final witnesses, Dr. Thom McHugh, via remote in Houston, TX, and Dr. Michael L. Dorson, who gave live testimony. Several times, the proceedings had to go off-record in order to regain access to the remote testimony of McHugh due to some technical errors.

During the cross-examination of Dr. McHugh, which was completed by Thomas Barnard of Taft Law Firm, it was clarified that McHugh was not a medical doctor, not an immunologist, an expert in immunology or on any advisory board for the EPA. These questions reflect testimony previously given by Gilbert, who does have some of these experiences that McHugh does not.

McHugh also testified that he, too, is a paid consultant.

The discussion of mass contaminant level goal (MCLG) was brought up several times throughout the two days of questioning. Witnesses clarified for both sides how an MCLG differs from an MCL, how it is decided, and how it comes into play with an MCL.

The basic understanding is that an MCLG is a goal that is set by the EPA for contaminant levels, but it is not enforceable. The enforceable number is the MCL, which takes into consideration the safety of the chemical contamination, as well as the cost and process of the clean up and other factors.

Dorson, a board certified toxicologist, did the most complete job of explaining the scientific process for determining an MCL and an MCLG.

Dorson testified that he can “assure you, these concentrations do not constitute an emergency.”

After closing statements were made by both sides, Judge Kukelhan stated that the two firms would have until Monday, Dec. 28, to propose orders. The court will make a ruling after that date.