The Defense’s Themes by Christopher Orman
Last Friday, Roger Sullivan, a plaintiff’s attorney from Kalispell who represented numerous Libby residents in civil cases against Grace, answered a question I posed to him concerning the Grace trial, “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 Environmental 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) 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.
Under 43 Fed. Reg. 11,112 (1978), provides Grace had no duty to disclose if Grace can establish the evidence was merely corroborative. Furthermore, Grace has the burden to prove Grace had proof that the EPA knew about that scientific data. Krakoff, Kubota, Coates, and Spivack all appeared to be referencing this rule in their openings.
Kubota, Spivack, Coates, and Krakoff, continued to state that the studies completed, meaning the Monson study, the Hamster study, and the Enbionics study, all uncovered data already well known to the government.
“NIOSH and the EPA knew asbestos was deadly. They knew that tremolite was deadly. This was nothing new, and nothing which the needed only further corroboration,” averred Krakoff.
3. The defendants “did the right thing.”
Krakoff, in discussing Eschenbach’s role as a health and safety official, constantly reiterated that his client “did what he could to affect change.” Issues such as obstructing the NIOSH study, was characterized by Krakoff as a “disagreement, but not a conspiracy.” Krakoff continually argued that Eschenbach knew the situation’s complexities and actually NIOSH did not have proper understanding of the scientific complexities existing in the Libby Mine.
Furthermore, Eschenbach, completing studies in the 1972, found that miners who smoked and worked in the mine had a higher incidence of sickness. Eschenbach, “in making things right” placed prohibitions on smoking by miners. “These miners were strong men, tough men. They didn’t like being told they couldn’t smoke to prevent developing an illness.”
Coates, with his Southern drawl, outlined his client’s conduct. Coates provided an in depth story about how McCaig helped get workers to stop smoking. McCaig wrote letters and had Grace fund a program called “Smoke Enders.” According to Coates, McCaig had the McDonalds, the foremost scientists on asbestos, come to Libby and disclose to the workers about the deadly effects of asbestos.
“Wolter did more to decrease levels of asbestos to a safe level than anyone else,” stated Kubota. She argued that Wolter, who was vice president of the Construction Products Division(CPD), changed machinery and decreased dust as much as possible from wafting in the airr.
Spivack, in discussing president Robert Walsh, reiterated the approach the attorneys had taken, stating that his client “researched and acted in the best interests of the workers.” Walsh had studies conducted, and continually tried to find methods, from 1982 to 1989, to decrease the levels and to ensure that employee health improved. Walsh, according to Spivack, became concerned about employees having respiratory illness, and initiated the McDonald test to quell concerns that the illness was not correlated with the current Libby mine production conditions.
4. Latency and the skewing of scientific data
Near the end of Bernick’s closing statement, he urged the jury to remember the nature of asbsestos and asbestos related diseases. The defense attorneys, picking up on Bernick’s closing, continually argued that by the time Walsh, Wolter, Eschenbach and McCaig were dealing with a disease which would not impact the worker until years later. So in the 1970s and 1980s, when workers were becoming sick, the years of high level asbestos were over. In other words, the workers becoming sick, were the result of working in the mine during the 1950s and 1960s when control and conditions were at their worst.
According to the defense, without the work of Walsh, Wolter, Eschenbach, and McCaig, those conditions would have continued and become worse. Instead, “they helped get levels to half of even what the government recommended,” Krakoff told the jury.
The defense also mentioned how mortality rates can be skewed; how latency and the fact asbestos could be found everywhere, affected the scientific data.
5. Do not view anything with 20/20 vision
In products liability, under RST 2nd of Torts 402A, there is an ongoing battle between the hindsight test and the foresight test. Interestingly, Montana state courts allow the hindsight test to be used. Under the hindsight test, a court can hear argument about feasibility and a company’s failure to perform based on present knowledge and actions.
However, such products liability evidentiary rules, common in a civil trial, are null and void here. Therefore, according to Kubota, it can become easy to say “well, with what we know now, they should have done more.” Karkoff, echoing this statement, provided that “us knowing now what is harmful doesn’t matter when you realize Grace was meeting all government standards.”
Krakoff argued that the big issue was that in 1972 and 1973, when Eschenbach was the head of health and human services, the dangers of asbestos were not yet known. “This was a learning process for everyone involved, everyone was just learning about all of this, whether it was Grace, the EPA, the government, or my client,” Krakoff claimed.
6. These were people who would never put someone knowingly in danger.
Coates and Kubota used some of their time to focus on their client’s personal sides. McCaig lived in Libby, and raised his son in Libby. His children went to high school in Libby. IN 1988, when he left, he drove his son back to Libby to finish high school there.
“[McCaig] would never want to put someone in danger. His children lived there. He lived there. He would never want to harm those people,” stated Coates in a hushed tone.
Before today, we could only guess at what the defense would argue. Today’s opening statements clearly established what defenses would be used. Throughout the case, the defense’s argument that Grace’s studies were merely corroborative will be conflicting with the government’s argument that there was a duty to disclose. The conspiracy counts, primarily rest on who wins that tug of war.
The Definition of Danger and the Effects Upon Admissibility by Christopher Orman
This article concerns the legal argument on March 9, 2009 presented by the prosecution and defense pursuant to Dr. Aubrey Miller’s testimony. The defense presented their argument, outlined below, that Miller analyzed “danger” under a standard different then the one maintained in this criminal proceeding. As a result, the defense contends Miller’s testimony should either be not admitted or limited by a 105 instruction. To analyze the defense’s claim, both CERCLA and CAA’s definitions of “danger” must be considered. At which point, the merits and presumptions of the defense’s argument can be clearly analyzed.
1. The use of endangerment in CERCLA
CERCLA states “[where] there is a release or substantial threat of release into the environment of any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare, the President is authorized to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time..” 42 USC sec. 9604.
CERCLA does not define “danger.” Therefore, it must be defined by the clear language of the statute and of the statute’s intentions and policy purposes. A clear reading of the statute implies the president’s approval is dictated by a showing of imminent and substantial danger. As a consequence, an on –scene administrator must make determinations and showings of danger to trigger superfund clean-up. Such a reading resonates with the statute’s policy of providing clean-up for hazardous substances which pose an imminent danger to the public.
2. The use of endangerment in the Clean Air Act
The CAA provides “Any person who knowingly releases into the ambient air any hazardous air pollutant…and who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury.” 42 USC sec. 7413.
Applying the same analytic standards for statutory interpretation as CERCLA, under the CAA a person is guilty of a crime for placing someone in imminent danger which could cause death or serious bodily injury. The language is used to establish mens rea for a criminal case. Furthermore, the language directly correlates to mens rea for criminal conduct not for clean-up. If the individual is placed in imminent danger under CAA by a company, the company could be criminally accountable. Such a reading is consistent with the CAA’s goal of holding a defendant criminally responsible for knowingly or negligently releasing a hazardous substance which places the public in imminent danger of death or serious bodily injury.
3. Defense’s Central Argument – the differing standards
Under CERCLA “danger” is modified by the inclusion of the phrase “public health and welfare.” In contrast, under the CAA “danger” is modified by the phrase “death or serious bodily injury.” Therefore, under CAA, the danger must not affect public welfare, but be of such a level it could cause serious bodily injury or death. In Libby, Miller was making determinations for a clean-up, following the CERCLA standards. As a consequence, Miller was arguably only considering the standard of public health and welfare, not testing to see if the exposure levels could explicitly cause death or serious bodily injury.
4. Defense’s Assumption – Miller as unable to assess under both CERCLA and CAA
However, “public health and welfare,” pursuant to CERCLA, could logically be so egregious and dangerous it could result in imminent death or serious bodily injury. The defense, in its argument, assumes that Miller could not tell when a possible threshold into criminal violations, meaning a showing of imminent death or serious bodily injury, had transpired. Furthermore, the defense steadfastly contends that the two dangers cannot be equal because the policy undergirding each of the statutes differs; the CAA is for granting a criminal remedy while CERCLA provides a clean-up remedy.
Nothing in the statutory language appears to obviate the possibility of an application under CERCLA for a site which is so dangerous, causing such harm to the public welfare, that it could also meet the CAA’s endangerment standard. The defense appears to be ascribing to the theory that Miller’s years making CERCLA determinations prejudiced him to the point that he was unable to know when a site became so egregious it could constitute a criminal violation.