UM Grace Case

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 health. 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.

William Coates, a lawyer for William McCaig, focused on his client’s community involvement and his family’s ties to Libby.   Unlike several other defendants, McCaig was a manager at the mine and actually lived in Libby full-time.    Coates told a story about McCaig driving “clear across the country” in a pickup truck so that his son could finish high school in Libby after they had moved.  He talked about McCaig and Grace’s anti-smoking efforts, saying, “In 1979, telling someone they couldn’t smoke where they worked was unheard of and very controversial.”  Coates argued that McCaig made substantial efforts to reduce the risk to his workers. “The whole Libby team worked hard to reduce exposure in the workplace and asbestos content in their products,” he said.

Carolyn Kubota, lawyer for Jack Wolter,  tackled  technical issues involved in the case in more detail than the other defense lawyers. She discussed legal limits on exposure to asbestos in the workplace, or Permissible Exposure Levels. She refered to diagrams of the Libby facility to highlight specific aspects of Grace’s efforts to reduce workplace exposure.  Kubota also touched on Grace’s anti-smoking campaign. During arbitration over a smoking ban at the mine, Kubota said Grace showed the workers union “study after study” demonstrating the dangers of asbestos exposure and smoking.

Kubota then related the complicated story of what happened to the mine property after operations were shut down in 1990.  Wolter was fired from Grace in 1994, and subsequently became involved with the Kootenai Development Corporation, which purchased the mine, sold the timber rights to the land, then sold the land back to Grace several years later.  She cited several studies by the Montana Department of Environmental Quality during this period, which she asserted showed no violations of the Clean Air Act.  She explained Grace’s decision to buy back the mine property as intended to expedite the EPA’s cleanup efforts, and characterized the negotiations between KDC, Grace and Wolter as contentious.  In conclusion, Kubota said that “far from hiding the dangers of asbestos… [Wolter] dedicated 14 years at Grace” to reducing the risks to workers.

She finished by describing what has happened in Libby as a tragedy.  “A tragedy,” she said, “is a very different thing from a crime.”

Steve Spivack, lawyer for Robert Walsh, was the last to make his opening statement today.  He described his client’s career at Grace starting with his appointment to the Construction Products Division, where he was president from 1982 to 1989.  He described his client as interested and concerned about worker safety at the Libby mine, but not an expert in any relevant area of science or engineering.  Spivack cited the results from Grace’s Health Surveillance Program as an example of this saying, “[Walsh] was not sure what [the results] meant… [Walsh] was determined to figure it out.”

Spivack claimed that Grace “challenged the government” to tighten asbestos regulations and reduce worker exposure.  He noted that Walsh was promoted out of his position in CPD 11 months prior to the passage of the Clean Air Act, and concluding by thanking the jury for their patience over the course of the long day.

After consulting with the jury, the prosecution and the defense, Judge Molloy called for a recess, thanked the jury, and dismissed them with admonitions to refrain from research, news-reading, or speaking about the case to anyone.

With the jury out of the room, Molloy then hammered out the conditions under which witnesses’ medical records could be displayed to the jury with defense attorney David Bernick.

Thomas Frongillo, lawyer for Robert Bettachi, requested additional time to make his opening statement, and Molloy granted him a twenty-minute extension.  Frongillo will make his statement Tuesday when court reconvenes at 8:30 am.

–Daniel Doherty