Prosecution closes: Hold defendants accountable
Wednesday morning, the prosecution packaged its entire case into three hours for the jury, connecting specific evidence with each of the eight counts against W.R. Grace and the remaining three defendants. Government attorney Kris McLean covered the conspiracy count, followed by attorney Kevin Cassidy outlining the remaining counts of knowing endangerment and obstruction of justice.
“This is a case of right and wrong,” McLean said. “This is about holding the defendants accountable for a horrible wrong.”
Opening with the same statement he used on April 28 to convince Judge Donald Molloy that the government had made a defensible case, McLean took close to two hours to reconstruct the government’s conspiracy case.
McLean said the government had to use circumstantial evidence – documents – because it is difficult to show direct evidence of intent. After reiterating that the point of the Grace conspiracy was to make money and avoid liability, he highlighted close to 50 documents dating from 1972 to 2003, all of which were supposed to demonstrate the defendants’ knowledge of the hazards of Libby vermiculite.
Many Grace internal memos discussed company worries about study results, new restrictions and possible ways of dealing with them. Throughout the 1970s, most of the communications involved Grace defendants Jack Wolter and Henry Eschenbach.
McLean said that each memo showed that Grace executives knew of the dangers of Libby vermiculite and tried to limit the spread of information. He gave greater emphasis to the documents that he said were overt acts demonstrating the conspiracy, such as a 1977 hand-drawn “Contingency Plan Chart.” On the chart, the executives had listed “bad publicity” and “lawsuits” under “unfortunate outside events.”
“Why would Grace be worrying about class action lawsuits in 1977 if they didn’t know there were problems with Libby vermiculite?” McLean said.
The “Chip Wood era” began in 1977, according to McLean. Grace brought in Elwood “Chip” Wood to deal with public relations, and he established descriptive terms to label the amount of asbestos in Grace’s products, such as “small” to describe products containing up to 6 percent asbestos.
“’Small’… ‘minimal’… these are words you use to deceive,” McLean said.
But according to McLean, the real trouble for Grace began in 1978, when O.M. Scott, a company that purchased vermiculite from Grace for horticultural purposes, reported to the Environmental Protection Agency that its workers had bloody pleuralisms. McLean said this was when Grace started to worry that “the cat may get out of the bag.” The O.M. Scott incident prompted the National Institute of Occupational Health and Safety to begin an investigation of the Libby operation, and memos over the next 17 months showed how Grace stalled and in doing so, defrauded, NIOSH, McLean said.
Defendant Robert Bettacchi entered the picture at Grace in 1983, and in 1990 became the point man for the sale of Grace’s Libby property. The conspiracy at this point, McLean said, is illustrated by a 1993 memo from Alan Stringer, manager of the Libby mine, after the 3M company refused to buy the property because of concerns about liability: “To sell, we must find a smaller organization who will accept the liability.” This smaller organization turned out to be Rainy Creek Nursery owned by Mel and Lerah Parker.
To prove conspiracy, the government had to show that an overt act occurred that furthered the conspiracy sometime after 1999. McLean listed six overt acts, including three that are the focus of three other counts. Stringer, formerly a defendant but now deceased, committed one of the acts in 1999 when he wrote a letter to the residents of Libby. “I knew there was a health problem associated with exposure to vermiculite … for workers and their families,” Stringer wrote.
Then Cassidy stepped to the lectern and ticked off the remaining seven counts. He began with the obstruction of justice counts since McLean had just spelled out the evidence in support of the conspiracy charge.
“When the 1999 news stories broke, Grace was in trouble. We will show that Grace misled the government and put the people of Libby in harm’s way,” Cassidy said.
Count 5 asserts that Stringer lied when he told EPA on-site coordinator Paul Peronard that Libby vermiculite contained less than 1 percent asbestos.
Count 6 asserts that Grace lied in multiple answers on the EPA’s 104(e) questionnaire, which caused a delay in Peronard’s assessment of the situation in Libby. Cassidy pointed to all the testimony refuting Grace’s answers, including witnesses who said that the public had access to vermiculite, who told about vermiculite tailings on Rainy Creek Road and Libby school tracks and who verified that workers regularly left the mine with dust on their clothes.
Cassidy used the Rainy Creek Road sanding to claim that Stringer’s default response to anyone who questioned was essentially, “There is nothing to see here.”
Count 7 asserts that, once the mine site was bought back from the Kootenai Development Corporation, Grace denied the EPA access to the site and delayed cleanup for two field seasons. The reason Grace gave was because “the land was rugged and mountainous,” but Cassidy said testimony showed that Grace was more worried about science.
“This is America,” said Cassidy, appealing to the jury. “You have a legal right to deny someone access to your property, but consider this in light of Grace’s other actions.”
Count 8 asserts that Grace lied to the EPA about the dangers of Zonolite attic insulation. The letter Grace wrote to the EPA stated, “There is no risk to human health.”
Cassidy prefaced the knowing endangerment charges by pointing out that, when proving “imminent danger,” the government doesn’t have to prove that death or injury would occur immediately, which is important due to the latency period of asbestos-related diseases. The knowing endangerment counts focused on three locations: The Parker’s property, formerly the screening plant; The property Burnett leased, formerly the export plant; and the city of Libby.
For each of these places, Cassidy described the testimony of witnesses who said vermiculite was left on the property and showed the associated air sampling results. He said the evidence of imminent danger came from doctors James Lockey, Richard Lemen and Aubrey Miller.
“Most importantly, you heard from Dr. Whitehouse who testified about all the Libby residents who have asbestos-related disease,” Cassidy said.
Both lawyers ended by thanking the jury for their time and making a final plea.
“This is the last time I will be able to address you. But when this day is concluded, and no more lawyers are arguing, I know you will do your best to consider the evidence and carry out justice,” Cassidy said.
“Apply your collective common sense and find the defendants guilty on all counts beyond a reasonable doubt,” McLean said.
– Laura L. Lundquist (posted 3:25 p.m.)
Posted: May 6th, 2009 under News.
Tags: 104E, Bettacchi, Closing, conspiracy, EPA, Eschenbach, Jury, Lundquist, NIOSH, obstruction, OM Scott, Parkers, Peronard, Rainy Creek Nursery, Stringer, Wolter, Wood, Zonolite attic insulation