Asbestos case awaits ruling

By CAROL HOLOBOFF The Western News

Sometimes old soldiers do die. Les Skramstad, an asbestos activist, was on the front lines up until he died in February but Gayla Benefield, his leading lady in the fight against W. R. Grace & Co., may be fading away from the scene with no fanfare from the town she fought to save. Early in June, Benefield got up one day and knew she was tired. She made eight phone calls and resigned from every board and organization she served on and then she went to play golf.

"Some people thought they might achieve more for the community without my big mouth, but it wasn't my ladylike demeanor that brought attention to the vermiculite disaster in Libby," Gayla said as she sipped coffee and shared her concern about the future of the people sickened by asbestos from the Libby mine. "I'll fight for the victims till I die, but I'm done with the politics," she said. People affected by the asbestos from the mine still hope for a meaningful trial as federal appellate judges are asked by federal lawyers to overturn U.S. District Judge Donald Molloy's rulings. Benefield maintains the appellate decision is "the most important decision for our future. If the lower -court decisions are not overturned, the trial will become government versus big business and the human tragedy may not even be introduced.

"However, Andrew Schneider, co-author of "An Air That Kills," wrote in the Seattle Post Intelligence on June 5 that even if the appellate court overturns the district court decisions, the criminal case will still be tried by the same judge and although the court could require a judge to admit evidence that had been banned earlier, that judge may still be able to achieve the same results by a different means. And, if the appellate court does overturn the decisions, the government may be left with a case too weak to prosecute. According to Schneider, "At stake is not only this set of indictments relating to the Libby mine but many other potential criminal and civil cases involving asbestos, according to government lawyers. Molloy's rulings could be used as a precedent for those cases."In the asbestos case involving criminal claims against Grace & Co. and seven of the companies former managers, the individuals are charged with conspiring to conceal health risks posed years ago in the Grace & Co. vermiculite mine in Libby. According to the indictment, the defendants could face up to 15 years in prison and a $1 million corporate fine for the Clean Air Act violations. Molly decided last year to ban federal prosecutors' use of documents, studies and testimony by expert witnesses and on September 6, 2006 the asbestos case against W. R. Grace & Co. was officially delayed due to the prosecutions pending appeals with the U.S. Circuit Court of Appeals.Assistant U. S. Attorney Kris McLean from Montana and Todd Aagaard from the Justice Department said Molloy dismissed the most serious charges, multiple counts of "knowing endangerment." Molloy ruled that the statute of limitations to allege knowing endangerment had expired shortly before the indictment was unsealed.Molloy also accepted Grace's contention that the government misidentified the specific type of asbestos in the company's vermiculite, McLean and Aagaard said.Over 7,300 Libby residents participated in a government study in which they were given x-rays, breathing tests and medical interviews. These people get upset when they hear that the results that study cannot be presented in the trial and they get really mad when they hear that the form of asbestos might make a difference. Dr. Brad Black, medical director for the Center for Asbestos Related Disease said, "It doesn't matter what they call it. Cemeteries and hospitals throughout the Northwest are filled with people fallen by the asbestos from Grace's vermiculite."