Feb. 23, 2009
Former federal judge Paul Cassell, lawyer for Libby residents Melvin and Lerah Parker, will be filing a writ of mandamus with the Ninth Circuit Court of Appeals tomorrow, Tues., Feb. 24, asking the appeals court to reverse Judge Molloy’s decision that the Parkers and other Libby residents are not crime victims in this case. For more on the district court’s decision, read here.
- Beth Brennan
Last Friday, Roger Sullivan answered a question I posed to him concerning the Grace trial by responding, “There is more than enough blame to go around, be it the state of Montana, the federal government, and Grace itself.”
The defense, this afternoon, in establishing its themes, appeared to reiterate Sullivan’s statement, if not his tone and timbre. Defense attorneys David Krakoff(representing Henry Eschenbach), William A. Coates(representing William McCaig), Stephen R. Spivack(representing Robert Walsh), and Carolyn Kubota(representing Jack Wolter) used different techniques but appeared to establish the same themes. There were six major themes, which will be important as witnesses begin testifying starting tomorrow morning and through the course of the trial. These themes all strongly rebuke the government’s theme of “a secret which no one knew.”
1. The Department of Environment Quality(DEQ), the EPA, and the State of Montana all had a chance to prevent this from happening.
In their motions in limine, the defense contended other government regulatory bodies failed miserably. The problem in Libby was not Grace, but the EPA, DEQ and State of Montana either accepting the conditions or approving the mine as a safe working environment.
Krakoff cited studies conducted by independent contractors under the purview of the EPA in 1980, 1981, 1982, and concluding with a letter to congress in 1983. Spivack mentioned how Walsh wrote a letter under TSCA sec. 8(e) to the EPA, the result of Grace’s Health Surveillance Program and a feeling that permissible exposure levels(PELs), contending the government standards for asbestos exposure were too high.
Furthermore, as Kubota stated, in 1992, the EPA received notice of a concern with the Libby mine and asbestos by both the Forest Service and a Libby Resident. The EPA had the DEQ investigate. The DEQ investigated and found “nothing.” In 1995, according to Kubota, the EPA closed the tests and studies of the Libby mine after another complaint was received.
Such an argument appears to establish the defense that Grace and its officers did everything in their power. The “mistake” was made by those with the power to regulate, not Grace.
2. Corroborative, corroborative, corroborative.
Several motions in limine presented by the defense argued the fact the scientific tests were merely corroborating what the government already knew. Before the case began, this appeared to likely be Grace’s biggest defense. After opening statement, nothing has changed.
Read more »
Attorneys for individual defendants labored to introduce their clients to the jury as real people, some of them even Libby residents, who were concerned about worker health at W.R. Grace.
Attorneys representing Henry Eschenbach, William McCaig, Robert Walsh and Jack Wolter also worked to cast doubt on various aspects of the government’s case, citing instances of Grace executives’ cooperation with various government agencies as well as an anti-smoking campaign on the part of Grace as evidence of their client’s good works for worker helaht. The alleged conspiracy on the part of Grace executives, each lawyer said, did not exist. The lawyers uniformily said their clients’ actions were in accordance with the law at the time and that the law they are accused of violating — the Clean Air Act — did not exist at the time of their actions. All described the asbestos-related disease in Libby as a tragedy, but asserted that the tragedy was not their clients’ fault.
David Krakoff, representing defendant Harry Eschenbach, began by providing biographical details of his client’s life, and a timeline of his career at Grace. Krakoff painted a picture of a concerned executive who walked into a bad situation and tried to make it better. “There was an agreement among these men to do everything they could to reduce the exposure to tremolite,” Krakoff said, adding that his client “could see with his own eyes this was a tragic situation.”
Krakoff acknowledged his client’s awareness of the danger of the asbestos to Grace’s workers, but denied that exposure levels in the town itself were considered dangerous at the time saying, “no one believed that the low exposures in the town of Libby … would place anyone in danger.” Krakoff further argued that Eschenbach did everything within reason to both ameliorate the risk to the workers and to inform the government of the dangers they were facing.
Attorney David Bernick stood before the jury this evening and urged them to keep their eyes on the ball when considering the charges against his client, W.R Grace. In a case that hinges on the jurors’ ability to understand the the nature of asbestos exposure in order to determine guilt, Bernick said that they must consider what exactly the defendants knew at the time people were exposed.
Bernick acknowledged that people have gotten sick in Libby, but was quick to point out that in order for criminal charges to be brought against Grace executives it must be proven that they were aware of the danger at the time workers were exposed to asbestos. Given the long latency period for asbestos related diseases, Bernick said that many were exposed before Grace took over operation of the mine.
“By 1963 when Grace took over the die was cast,” he said, adding that exposure levels were much higher under the former operator.
After Grace took charge of the mine, Bernick said that steps were taken to reduce levels of exposure and remain in compliance with federal safety regulations. According to Bernick, Grace not only improved the safety of its operation but was commended by officials.
“The evidence will show that inspectors and regulators praised Grace,” he said.
Bernick said that the jurors must consider that the EPA’s own system for evaluating the risk of exposure, a system that he said did not find significant hazards in Libby. Because the EPA did not fully understand the problem, Bernick said that it would be unreasonable to bring charges against a company that was in compliance with their regulations.
“The EPA’s own quantatative risk assessment says that the risk was acceptable,” he said. Bernick said that not only did the EPA fail to understand the risk in Libby, but ran a clean-up project that Grace officials found poorly executed.
The governments charges of obstruction stem from Grace’s purchase of the old mine site and its refusal to allow the EPA on to the site, but Bernick contended that this was nothing more than an expression of their dissatisfaction with the clean up. Bernick said that Grace wanted to sit down with federal officials and discuss the clean up before allowing them back onto the site, not consciously obstruct their efforts.
Bernick finished before the court’s afternoon recess, again urging jurors to look hard at the evidence and consider the complex nature of exposure and diagnosis before deciding who is at fault. He asked jurors to keep in mind the latency period for diseases like asbestosis and mesothelioma, and said that officials had to have known that their actions were hazardous at the time of exposure, not the time of diagnosis. ”The exposure is long before the actual diagnosis,” he said.
– Kyle Lehman
Henry A. Eschenbach knew that the ore being mined in Libby, Mont., was toxic to animals, and had caused cancer in hamsters, Kevin Cassidy, a senior trial attorney for the U.S. government, told jurors Monday morning during his opening statement.
It was something that Eschenbach, then the director of health, safety and toxicology for W.R. Grace, allegedly knew but didn’t disclose, Cassidy said. The hamsters were part of a study done to learn about the effects asbestos-contaminated ore from Libby could have on people.
Eschenbach is one of five defendants and W.R. Grace company men who are being charged with criminal offenses, such as conspiracy, Clean Air Act knowing endangerment and obstruction of justice. The defendants — Eschenbach, Jack W. Wolter, William J. McCaig, Robert J. Bettacchi and Robert C. Walsh — sat on the right side of the courtroom Monday, listening as Cassidy described the high-up positions they held with W.R. Grace and the actions they are accused of doing. Directly across the room, the jurors sat in their bleachers, taking notes and looking toward the five men.
Cassidy told the five men and seven women of the jury that much of the evidence that would support the government’s case came from “W.R. Grace’s own documents, material that was often authored by the defendants.” Many of those documents show that the defendants knew about the dangers associated with the Libby ore, Cassidy said.
Eschenbach had gathered information showing that workers with 10 years of experience or more had health problems related to asbestos exposure. That was in 1976.
In 1979, a Grace insurance company said the workers’ compensation loss due to asbestos exposure was significant, and that the risk of asbestos exposure for workers’ family members was a matter of concern, especially when workers came home in asbestos-ridden clothing, Cassidy said.
Six years later, Eschenbach told Walsh, Wolter and McCaig that many young workers had evidence of asbestos-related disease in their lungs, and they had only been working at the mine a short time, Cassidy said.
In addition to these cases, Cassidy said Eschenbach and other Grace executives had done internal tests on vermiculite products. These tests had proved that these products — such as fertilizer — were hazardous. But, Cassidy said, that information — and any other that exposed the danger of the Libby ore — wasn’t shared with people outside of the company.
”Mr. Eschenbach knew, but he didn’t tell,” Cassidy said. “With all that knowledge, he became a point-person for selling off (Libby mine site) properties.”
Cassidy continued his opening statement, detailing criminal actions the other defendants had allegedly taken during their time working for W.R. Grace. Running out of time, Cassidy quickly mentioned the last defendant, McCaig, the one defendant who had lived in Libby. McCaig now has abnormalities in both of his lungs, Cassidy said.
Concluding the opening statement for the U.S. government, Cassidy said the internal agreement to conceal asbestos dangers made W.R. Grace millions of dollars, but it put the people of Libby, Mont., in danger. For that reason, at the end of the trial, he said, the government will ask for a guilty verdict for each of these defendants.
“(The jury) has to decide what these defendants knew about (asbestos-related) health hazards, and when they knew it,” Cassidy said.
– Carly Flandro
Asbestos-contaminated ore was found at a Libby, Mont., high school, junior high and grade school, Kris A. McLean, a government attorney, told the jury and a packed courtroom Monday morning in his opening statement. The ore was in the high school track, where every time runners struck the surface asbestos could have been stirred into the air and inhaled by the young high school athletes.
Allegedly, W.R. Grace knew the hazards that the asbestos-laden tracks could bring to young Libby students and athletes — hazards such as the development of cancer or lung disease. A study done at the high school track proved that the impact of two runners raised “surprisingly high levels of asbestos,” McLean said.
McLean told the jury that W.R. Grace knew the dangers that existed but didn’t inform other people outside of their company.
In the coming trial dates, many people will share stories like these with the jurors, McLean said. These people will include scientists, Libby residents, small-business owners, doctors and government employees.
In the mid to late 1980’s, McLean said the “gathering storm of liability (from Libby residents) and the likelihood of increased government regulation” for the asbestos industry motivated W.R. Grace executives and top employees to develop an exit strategy.
That exit strategy included plans to tear down old plant buildings, sell the vermiculite mine and donate buildings and land to the town of Libby. Each part of that plan would put more people in danger of asbestos-related disease, McLean said.
Workers who tore down the old plant buildings, some of which were used exclusively for processing vermiculite, were exposed to a great deal of asbestos and wore their contaminated clothes home, bringing the danger to family members. The land W.R. Grace donated to Libby was used as a baseball field. When the land was given away, it still had piles of contaminated vermiculite on it, McLean said.
“Libby residents will tell you (those piles were) fun to play in.They’ll tell you how their little brothers would be over playing in the vermiculite while they played baseball,” McLean said.
W.R. Grace tried to sell the mine site and remaining buildings to other large companies, such as 3M. However, most large companies were wary of the possible liabilities from Libby residents that could come with the purchase.
So, W.R. Grace tried to sell the mine to a “less sophisticated, smaller entity,” according to McLean.
That small business ended up being the locally-owned Kootenai Development Corporation. Two small Libby business owners also bought land and buildings from W.R. Grace.
Mel Parker was one of those business owners, who thought the land would be perfect for the gardening company he and his wife, Lerah, hoped to create.
“The Parkers moved their family onto the site and made the business of their dreams. They’ll describe all that for you,” McLean said. “They will also tell you, unfortunately, that they have been diagnosed with asbestos-related disease.”
McLean said the jury will also hear from the Environmental Protection Agency emergency response team that first investigated media claims about the Libby asbestos problems. Dr. Alan Whitehouse, who has a clinic in Spokane, will also tell the jury about the Libby patients he has examined.
“Dr. Whitehouse will say that new cases (of asbestos-related disease) are still being developed to this day in Libby, Mont.,” McLean said.
In addition to testimonies, McLean said paperwork will also support the U.S. government’s charges against W.R. Grace.
In April of 2002, W.R. Grace wrote a letter to the EPA saying it was reasonable to believe that the asbestos-contaminated vermiculite that was used in attic insulation would not cause serious health problems, though, allegedly, company officials knew otherwise.
“They were still trying to keep that secret that was developed back in 1977,” McLean said.
Kevin Cassidy, also representing the government, continued and concluded the opening statement. A report on his statements will be posted shortly.
– Carly Flandro
Lead defense attorney for W.R. Grace, David M. Bernick, began his opening statement by asking the jury to look at the title of the case before them. The title indicates it is the United States of America that is bringing charges against W.R. Grace and the individual defendants. Bernick informed the jury that this case is not being prosecuted by individuals or the city of Libby, nor is it being prosecuted on behalf of individuals or the city of Libby. According to Bernick, this is a dispute between the American Government and the listed defendants; this is not a case that focuses on the workers of the Libby mine. None of the charges allege defendants acted criminally to cause injury to miners and their families.
The defense attorney quickly followed up this comment by stating that there is no question that miners and their families suffered tragic losses as a consequence of their contact with the mine; W. R. Grace is not denying the reality of the losses suffered. However, Bernick told the jury they need to focus on the charges that are in front of them and the evidence will prove that those charges are unsupported.
If this case is not about Libby miners and their families, then what is it about? Bernick instructed the jurors that this case ultimately rests on what W.R. Grace knew and when they knew it. In 1963 when W.R. Grace first purchased the vermiculite mine in Libby, MT, they knew that the vermiculite was contaiminated with naturally occurring asbestos. They also knew that asbestos, in the form of dust particles, was dangerous. W.R. Grace understood that when a high dose of this asbestos was inhaled, the risk of harm was heightened.
In order to remedy this problem, W.R. Grace set standards for asbestos use. From 1963 through 1971, changes in the concentration in the airborne dust were implemented by W.R. Grace in order to improve the airborne exposure. Bernick told the jury that W.R. Grace was not inactive when it came to dealing with the dangerous dust exposure; he said their efforts to improve the level of exposure were “OK” but they could not keep up with the pace of new environmental regulations. Ultimately, W.R. Grace makes the argument that knowledge of potentially dangerous exposure is not sufficient to prove they knowingly or intentionally committed the acts with which they are charged.
Bernick proceeded to discuss how the evidence will show that the elements of the charges against W.R. Grace cannot be proven. First, W.R. Grace disputes the charge of Obstruction of Justice. Regarding this charge it is alleged that W.R. Grace knowingly and intentionally sought to obstruct a government proceeding, in this case the EPA cleanup. W.R. Grace disagreed with the EPA cleanup, and this disagreement became part of the obstruction charge. Also, W.R. Grace initially refused access to the EPA because they thought the cleanup process was fundamentally out of control and they wanted to sit down and discuss it before it went further. This access issue also became part of the obstruction charge. Bernick insists evidence such as this is insufficient to prove Obstruction of Justice.
The charges of Endangerment and Conspiracy to Endanger were discussed conjunctively. In order to find that the elements of these charges have been met, the jury will need to find that W.R. Grace intentionally caused a release into the ambient air that caused an imminent danger. An outdoor air assessment by the EPA in 1999 or 2000 indicated there was only a 1/10,0000 chance of danger through outdoor emissions. Bernick suggests that this is not enough evidence to prove intent.
As far as the Conspiracy to Endanger count is concerned, the prosecution will have to show who it was that agreed, a major component of conspiracy, to intentionally release and imminently endanger.
In discussing the last charge of Conspiracy to Defraud, Berkin focused on propensity. The prosecution will have to prove the propensity of the materials to release into the air. Bernick attacked the studies presented by the prosecution on this element. For instance, the Hamster Study cited by the prosecution is not a study of the product. The Hamster Study used a tremolite fiber type, not vermiculite. In addition, the fiber type was directly injected into the hamster, not inhaled. In essence this study has nothing to do with the propensity of the product to release into the air.
The jury was reminded that they are only to be concerned with the actual charges made by the Government. Bernick insisted that in looking at the evidence presented in the coming weeks, the jury will be unable to find that the elements of the charges have been sufficiently proven.
- Shannon Foley
Grace Case reporter Kyle Lehman will be taking over coverage of the case this afternoon. After the opening statemens from the government, the defense will begin its opening statements.
The Grace trial began with the prosecution and defense addressing Judge Donald Molloy regarding charts and graphs to be used in the future. Molloy said attorneys can reference charts in their opening statements, but that there is no guarantee that what they choose to address will be used as evidence to be presented to the jury at a later date.
The 12 jurors, most seeming to be of the working class, middle to late-aged people, were seated and Molloy started with preliminary instructions for court procedure. The government’s eight criminal charges, including conspiracy, Clean Air Act knowing endangerment, and obstruction of justice against W.R Grace were then laid out by Molloy for the jury. After stating these charges he added that “I remind you that’s not proof of anything, that’s the allegations of the government,” adding “keep in mind, there are two sides to every story, the defendants ask that you consider theirs.”
Molloy cautioned the jury that “the opening statment is not evidence,” and said that anything he says to disregard, statements and questions by lawyers, or any information provided outside the court, is not evidence. The trial will only be decided by the evidence presented in court, Molloy stressed.
He went over the definition of conspiracy, one of the charges against Grace, stating that a conspiracy consists of anyone that “willifully participates” in deceiving for their own benefit “even if don’t have all details of the conspiracy.” Molloy also went over a brief background of himself and introduced some important people that will be assisting him during the trial, principally Tyler Gilman, an attorney he said was “critical to the operation” that he will dispatch as counsel regarding legal issues that arise.
Molloy then turned it over to the U.S government to begin their two-hour opening statement, begun by assistant U.S attorney for Montana Kris A. McLean. Kevin M. Cassidy, the senior trial attorney for the environmental crimes section of U.S Department of Justice, would address the second part of the opening statement focused on the individual criminal charges against the Grace defendants. Following the prosecution, a six-hour opening statement is planned for the defense.
McLean began with an overview of the injustice he believes Grace performed, stating that they “chose profits over people’s health. Ultimately this case is about justice, holding this company responsible for a very serious wrong.”
He summarized for the jury what each of the eight counts would address. In a broader sense, two objects will be addressed, including Grace’s release of hazardous asbestos and the company’s hand in preventing EPA from cleaning up the asbestos contamination.
McLean said Grace wrote in a letter to the EPA in 2002 that vermiculite attic insulation, VAI, was not harmful people’s health. McLean also said that Grace had scientific tests performed to assess their contaminated vermiculite. Grace knowingly ignored acting on counsel from researchers at universities such as Harvard that advised the company of the health risks of their mined ore, he said. The mortality rate in Libby due to asbestos is 40 to 80 times that of other places in the nation, adding that people in Libby have 30 times more cases of lung cancer.
– Carmen George
by Nick Lofing
In a very full courtroom, Judge Donald Molloy first settled several legal matters this morning. The Court settled the agreed-upon jury instructions to be offered the jury for consideration during the trial. There were few objections to this matter. Then, the court discussed the day’s events. Kris McLean, lead prosecutor for the United States, will first have eighty minutes for opening statements. Then Kevin Cassidy, Senior Trial Attorney for the Environmental Crimes Section, will have forty minutes, which will finish up the two hours allocated to the government for opening statements. The defenses’ opening statements will proceed during the afternoon, beginning with two hours reserved for David Bernick, the lead attorney for defendant W.R. Grace. The real dispute this morning concerned the referencing of anticipated evidence during opening statements. Because the admissibility of so much evidence has been disputed in pretrial litigation, the question of the use or referencing of such exhibits and evidence during opening statements remains contested. The parties agreed that five pictures could be presented during opening statements. Both sides wanted the Judge to know that their side tried to reach an agreement, pointing fingers at the other. The Judge assured them that he understood attorney advocacy and that “we will conduct this matter civilly.” The Court then ruled that the parties could reference the evidence generally, but could not read or quote from evidence which they anticipated to be admitted.
After the recess, the jury took their seats and Court commenced. Molloy first introduced himself, telling the jury he was born in Butte, raised in Malta, attended the University of Montana, served five years in the Navy, and practiced in Billings Montana for 20 years before taking the federal judgeship. “I love what I do,” he said, “it is critical to the way we govern ourselves.”
Judge Molloy then explained the schedule for the day: “we have about six hours of opening statements.” He then read the preliminary instructions to the jury, including the charges by the government, as alleged by the indictment. See Government Case. The Court made clear that the indictment was not evidence, but only charged offenses.
Then, the Court communicated to the jury some messages from the defendants. First, the defendants “emphatically” deny the government can prove its case. Second, the defendants asked that the jurors give them the same trial that each juror would expect if he or she had been charged with criminal offenses by the government. “Keep an open mind. Every story has two sides; the defendants ask that you fairly consider theirs.”
Judge Molloy introduced the charge of conspiracy and explained that he would be giving detailed instructions on the law of conspiracy before deliberation. Judge Molloy explained what evidence the jury could consider and what evidence it could not. Finally he emphasized that “An opening statement IS NOT evidence. It is simply an outline.”
Kris McLean began by introducing himself and the five men sitting at the government’s table. McLean continued, “our purpose is to give you the big picture…I want to give you the roadmap, the big picture of this case…so you will have some context.” The case, he summarized, was about a corporation choosing profits at the expense of people’s health. “Ultimately,” he continued, “this case is about justice, about holding this company accountable for a very serious wrong.”
Read more »