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Positive ruling for W.R. Grace victims

by Western News
| September 26, 2007 12:00 AM

On Thursday, the 9th U.S. Circuit Court of Appeals in Seattle reversed several decisions made by Chief U.S. District Court Judge Donald Molloy.

Molloy dismissed several charges made by the government against W.R. Grace & Co. and seven of the company's top former officials.

Prosecutors will now pursue the theory that top officials with the company "knowingly endangered" miners and the people of Libby with exposure to vermiculite mined in Libby, which contained asbestos.

Molloy ruled the statute of limitations had expired for the government to follow up on the allegation on knowingly endangering Libby miners and residents.

"The district court dismissed the knowing endangerment object in the original indictment as 'time-barred' because it failed to allege an overt act within the statute of limitations, not because the indictment was untimely filed," the three-judge panel wrote. "The district court erred."

A 49-page indictment was released in February 2005 charging Grace and seven of its former managers, one of whom died in February, with conspiring to conceal health risks which arose after several years of operation at Libby's vermiculite mine, which closed in 1990. Hundreds of people in Libby have become sick and some have died from exposure to asbestos in vermiculite.

"A human and environmental tragedy has occurred in Libby," stated in previous reports by William W. Mercer, U.S. Attorney for the District of Montana. "This prosecution seeks to hold Grace and its executives responsible for the misconduct alleged."

"In reversing several pretrial rulings by Judge Molloy, [Thursday's] decision by the 9th Circuit is an important victory for the United States," Mercer said in a statement.

Thursday's rulings were among two appeals stemming from pretrial decisions. In July, a 9th Circuit panel reversed a ruling by Molloy that required federal prosecutors to produce a pretrial list of non-expert witnesses. The panel said the district court had "exceeded its authority."

On Thursday, the appellate judges also reversed a ruling limiting the materials available to expert witnesses at trial, reversed a decision that would have narrowed the definition of asbestos, and precluded defendants from using an affirmative defense not authorized by the Clean Air Act.

Gayla Benefield, an activist and family member to many people who have died or are currently suffering from asbestos-related diseases, is "joyful, gleeful, very excited" about Thursday's ruling.

"I'm very surprised," Benefield continued. "We came out with 99 percent of the things we asked for. The ruling is in our favor and this is the largest step forward in the case."

Benefield lost both her parents and her brother-in-law to asbestos-related diseases. Her entire family has been affected, as have her husband's family. Of 65 family members, Benefield estimates approximately 35 members of her family and her husband's family have died or are currently suffering from diseases related to asbestos.

One government witness and a vocal defendant have also died. Les Skramstad, a former employee at the mine, fought for several years against Grace. Skramstad died in January after being diagnosed with mesothelioma, a form of lung cancer associated with asbestos exposure.

In February, Alan Stringer, a former general manager of the mine died of cancer. Stringer was charged in the case.

Earl Lovick, the mine manager until 1983, died of asbestosis in 1999. In 1996, Lovick gave a taped deposition regarding the case. Excerpts of that deposition were included in the POV film "Libby, Montana," which aired on Montana PBS on Aug. 28.

The trial had been tentatively scheduled for September but that has since been postponed. A new trial date has yet to be set. Benefield said she will attend the trial.

"We'll have to wait to see if Grace will appeal," Benefield continued. "They've spent $90 million on attorney and expert witness fees. The irony is they probably could have settled for that. It will be interesting to see how much more will be spent.

"This is a step forward to bringing them to trial and holding them accountable. That's what it's always been about - making them accountable," Benefield added.