Outside the courtroom: Relief and disappointment
After a three-month trial, jurors deliberated for just one full day before acquitting W.R. Grace Co. and three of its executives Friday of all criminal charges.
The company and executives were accused of knowingly exposing residents and mine workers to toxic asbestos, a byproduct of the company’s vermiculite mine in Libby, Mont.
In closing the trial, Judge Donald Molloy thanked the jurors for their service, and said that at 35 days the trial was the longest he has overseen.
“I want to thank the jury,” Molloy said. “This is truly a reflection of how we are supposed to govern ourselves – it is up to the people.”
Federal studies blame asbestos from the mine operations for Libby’s high rates of asbestosis and lung cancer. Deaths in Libby from asbestosis have been found to be 40 to 80 times higher than expected and deaths from lung cancer 20 to 30 percent higher.
Acknowledging the town’s troubled past, attorneys for the defense described for the jury a company that tried to improve conditions in Libby once it became aware a danger existed. The government, according to David Bernick, lead attorney for W.R. Grace, pursued a case based on politics and emotions rather than law.
“The jury saw through the haze of 10 years of politics and did the right thing” Bernick said.
The verdict stunned many with a personal interest in the case.
“This is really disappointing,” said Danielle Bundrock, a senior from Libby attending the University of Montana. Bundrock said her step-grandfather died of asbestos related disease this past Easter. Thirteen other members of her family are also afflicted, she said.
“It would have been a lot better if I had heard it went the other way,” she said. “Someone has to be to blame for all the hurt that has happened to the people of Libby.”
Frustration, and an intact gag order
Rick Bass, a writer whose work focused on the Libby region, said as he left the courtroom that the verdict has profound implications for the way industry is held accountable in Montana.
“It’s not good news for Libby. I worry it will have a ripple effect statewide for corporations working in Montana,” Bass said. “Same thing happened in Butte. They cut the top off a mountain and left a mess behind … I worry they’ll breathe a sigh of relief.”
A woman who came to court to see the verdict of a trial she’d watched unfold in the papers said simply, “I’m pissed,” as she stood to leave. She declined to give her name.
Attorneys for the prosecution, Kris McLean and Kevin Cassidy, walked the quick two blocks from the federal courthouse to their office. McLean said they’d like to comment on the verdict but couldn’t.
The U.S. Attorneys Office released a statement from Billings: “The jury has spoken, and we thank them for their service. We are refraining from further comment at this juncture because one individual awaits trial in conjunction with this case.”
A gag order in place since 2005 will remain in place for McLean and Cassidy, until the trial of defendant Mario Favorito, which is scheduled for September, according to Jessica Fehr, a spokeswoman for the U.S. Attorneys Office in Billings.
But McLean’s supporters gave some indication of the prosecution’s immediate plans:
“All in all, I think it was a good magic show by the defense,” said Tyson McLean, 23, McLean’s oldest son.
“It’s time to mellow out for a while, do some fishing with dad.”
Defendants’ quiet relief
Defendants Henry Eschenbach and Jack Wolter left the courtroom with their supporters, calm, quiet and relieved.
“I‘m just elated. I’m elated that my husband has been exonerated and I’ll say no more,” Doris Eschenbach said.
“For me, it’s been tough,” Henry Eschenbach said. “But it’s been far tougher for my wife, my three daughters and my five grandchildren. I’ve always thought throughout this case, ‘I don’t want to embarrass my grandchildren.”
Dozens of attorneys and paralegals for the defendants formed a receiving line of sorts as the lead attorneys and defendants exited the courtroom.
Carolyn Kubota, Thomas Frongillo, David Krakoff, as well as Bernick, passed through the line, exchanging hugs, handshakes and high fives with the lawyers and staff who have supported their effort for the past three months.
Kubota, who represented Wolter, a former Grace vice president, gave way to tears outside the courtroom.
“It would not be right to say we expected it, but we hoped for it,” Kubota said. “Jack is one of the most honorable men I’ve ever met. An experience like this leaves scars forever. It’s good to have closure and to have his name cleared.”
“It’s one of those things that gives you goose bumps,” she said.
Thomas Frongillo, who often served as supporting actor to Bernick’s lead, said he wasn’t surprised at the verdict. “I expected it,” he said. Frongillo represented former Grace senior vice president Robert Bettacchi.
“I don’t believe a crime was committed,” Frongillo said. “We felt they overstated some of the evidence in this case.”
Outside the courthouse, Eschenbach’s attorney David Krakoff, relayed the news on his cell phone: “We won! Unbelievable. Unbelievable. What a feeling. They’ve been through hell … Total vindication.”
By the Grace Case Project reporters
Posted: May 11th, 2009 under News.
Tags: acquittal, Bass, Bernick, Bundrock, Cassidy, Eschenbach, Fongillo, Krakoff, McLean
Comments
Comment from Terry Trent
Time May 14, 2009 at 11:31 am
David Perrault – Did you actually pay attention to this trial? Or are you just guessing?
Comment from Mike Crill Missoula,Mt
Time May 14, 2009 at 2:05 pm
Just a thought. When the May 2007 trial was canceled by Molloy and a new date was set for trial by Molloy…Sept. 11 at 9:45. The same time and date of the Towers bombing with 400 tons of Libby asbestos landing on thousands of people many sick and dying and dead today. I called the US Attorney and asked him if this was some kind of a joke by Molloy? They seemed dazzed also.Course this date was changed again but from the very beginning, Molloy has not been about any Justice for Libby and the people.This not guilty BS just proves where justice is even in the face of truth and human death. They will rot in hell..
Comment from Terry Trent
Time May 15, 2009 at 10:52 am
Mike – you were doing so well at Paul’s blog at narrowing the blame. What happened? Narrowing is good, shotgun is bad.
Saying EPA is equally guilty as the corporations, forgets the fact that the corporation turned out to be “not guilty”!
Also, let’s say you are right about Malloy. Any thoughts as to why he might do this? Any possibility that his years of training and experience, of which almost none of us can pretend to understand, allowed him to see greater and lessor injustices?
You were doing so well?
Best to you,
Terry
Comment from David Perrault
Time May 15, 2009 at 4:27 pm
Terry you’re the one who didn’t pay attention. Prosecutors were trying the case in front of a judge who had multiple pre-trial rulings reversed and through his own quotes was very hostile towards them. Look, they didn’t present the best possible case but I don’t believe Molloy gave them the opportunity to do so. Judge Molly treated the prosecution like children and seemed to be an echo chamber for every argument Bernick submitted against them.
On the bright side, Grace spent $146 million to defend the case so all is not lost.
Comment from Mike Crill Missoula,Mt
Time May 16, 2009 at 1:25 am
I think I can begin with Montana Justice. There ain’t none. Montana has for many many years been so apart of so much criminal and political crimes if and when one head falls, they all fall. After all Terry, look how many years of how many people who for all them years who also knew and did nothing and became apart of this mass murder that was not a accident and was knowingly done to us. You can not say Molloy was/is natural in any of this. Ray Charles can see the writing on this wall long before the trial became a reality because some one had to show that something be done after being told over 2000 human beings are sentenced to die. There was no justice in that court room Terry, and so much evidence that needed told but was not told by both sides. This was allowed. Nothing just, about any of this. Terry my friend, they are all guilty…Take care…
Comment from Terry Trent
Time May 16, 2009 at 5:00 pm
OK Mike – Let me put it this way. Out of all the people that are guilty, according to you…which of these people can something, actually and in realistic terms, be done about? For example. we can no longer do anything about WR Grace so it doesn’t do us any good at all to call them guilty over and again. Judge Malloy is so far beyond anyone’s grasp, and our country does that on purpose for important reasons, that no words anyone speaks will ever touch him. Who is left?
TT
Comment from Mike Crill Missoula,Mt
Time May 16, 2009 at 8:33 pm
It’s like, in the eye of the beholder. I, as a victim can and do and will call those guilty, guilty all the way to my grave. Just because law is law does not mean it is right and all is perfect. We both know better. You know Terry, at this point, I haven’t a clue as I am tired of reaching for the stars.Too many. But I know when they reach that fork of the road in their end of days, they have a one way and one way only and it is called hell. Maybe they could move to Libby… kinda the same. Take care. Oh yah, Molloy sucks too….
Comment from Terry Trent
Time May 16, 2009 at 9:04 pm
Mike – Well it is entirely up to you. We have literally hundreds of people who sleep in the streets nearby in Sacramento, who walk up and down the streets and bike paths screaming that this person or that person is guilty or whatever. I even met several people like this in Johannesburg South Africa. I have never seen even one person pay any attention to them at all.
What I was asking you, is how you intend to avoid being just exactly like them? What do you intend to focus upon?
Best regards,
Terry
Comment from Mike Crill Missoula,Mt
Time May 16, 2009 at 10:44 pm
I guess nothing but life,my grandson and what I have and am blessed with. I have never lost sight of the things I have it’s just that they too suffer as I. Raw deal huh… I am trying hard to escape this sentence Terry, you know it is hard to not be involved being a victim too and not heard by people. Only I have been heard Terry by thousands who listen and the rest, I guess live in Libby or just don’t care. Such is the life we live. Reguardless, it is what we do today different than yesterday for that better tomarrow. I think I have done as best a job as one man can do. I have saved many Terry just as you and the others who speak the truth. It is the lies Terry that continue to kill more people.Someday they too will pay or like someone said years ago to me, that Libby is like Viet Nam as we all knew it was wrong and thousands killed for what?And it took what and how long to end? I guess we just have to wait till this war is over, maybe I will not see it but I know what I leave behind will continue long after I am gone and that is to save a life with the truth…And also, it does not matter here what anyone thinks of me or you or anyone, it is where we have walked that will matter when our time comes. I am ready…tomorrow I am going crystal diggin and a picnic with my wife. Life is good. Take care my friend. They…will never be innocent, never…
Comment from Mike Crill Missoula,Mt
Time May 16, 2009 at 10:54 pm
Also, a 4 year old girl has just been diagnosed with Meso. 4 years old. Her name is Zaida Mattson and you can read about her on http://www.caringbridge.org/visit/zaida. Please say a prayer for her and family. Bastards….
Comment from mike nelson
Time May 16, 2009 at 11:43 pm
dog and pony show ,they call it a clean up, i call it a cover up they have been destorying , evidence with out pics or documention for many years .when export and bagging plant torn down there was trillions of fibers released upon libby .with no remorse ,how can this be allowed to happen is beyond me .no pics of this travesty, as there were tons of vermiculite in the silos . know we have epa, doj, omb ,state, and so many others .who are part of cover up ,opps i mean cover up ,opps i mean clean up. ps why has wr grace been able to do so much damage . whos in charge and why no justice. so much coruption and passing the buck it is a dis-grace
Comment from mike nelson
Time May 17, 2009 at 12:02 am
mr trent you are a very smart man and i listen when you talk, the ball was droped .know i would like all info i can get .there where many wrongs done long ago. so what do we do now any ideas where to start.
Comment from mike nelson
Time May 17, 2009 at 1:36 am
mr crill you were right 4 yrs old this maddness has to stop .we need all the info we can get .
Comment from mike nelson
Time May 17, 2009 at 1:44 am
my last post was 12.40 why does it say 1.36 it is now 12.43
Comment from Terry Trent
Time May 17, 2009 at 12:32 pm
Thanks Mr. Nelson, although I think it could be debated as to whether or not beating one’s head against this particular brick wall is very smart or not…I do appreciate your sentiment.
The four year old is a spontaneous generation case (common enough to happen), not caused by “asbestos”. But don’t let that stop you! Indignity is just as great to express even if it is just an old man or woman!! After all they are indeed somebody’s son or daughter, wife or husband, mother or father.
Best regards,
Terry
Comment from neil nelson
Time May 17, 2009 at 3:39 pm
This whole thing is a figment of the imagination and no one is responsible, No one has died or is sick, grace was such a benevolent company and the epa was protecting us. Sorry just a little sarcasm.
Comment from Mike Crill Missoula,Mt
Time May 17, 2009 at 10:12 pm
Is there something I am missing here??? I am to believe asbestos/Tremolite IS the CAUSE of Mesothelioma….WR disGrace Hamster study proved that Libby Tremolite caused meso…40 plus years of studies. About time to tell the people the truth instead of killing more and more and more by lies and lies and lies…..Stay away from Libby Mt….
Comment from Gerry Heard
Time May 18, 2009 at 12:12 pm
Terry: Don’t get sucked into Mike’s reality/distortion field. As a resident of Libby I personally want to apologize for Mike. I know he’s not my responsibility – but I just want you to know that all of the people in Libby are not “crazy”. Mike has been our little secret for several years. He’s like the people you described in Sacramento. Its unfortunate that he knows how to use a computer. Could you just imagine if they all could use one. The mind spins. I don’t see him around anymore, so I have no idea where he is. He could be on the streets of Sacramento as we speak.
Comment from sheila haessly canton, ohio
Time May 18, 2009 at 2:06 pm
All i have to say is both my parents died from the crap over in libby. my father worked for zonilite. and i think someone needs to be held acountable….they told him nothing about the danger there….
Comment from Terry Trent
Time May 19, 2009 at 12:00 pm
Sheila,
I think so too Sheila. The only people who actually knew where our old Public Health Agency and EPA. (Whose job it was, surprisingly enough, to tell people as part of protecting them). They didn’t tell the people, they didn’t even tell WR Grace.
There are similar situations to Libby occurring in the US today. They don’t tell these people either!
TTrent
Comment from Terry Trent
Time May 19, 2009 at 12:04 pm
Gerry – He is in Missoula I believe and I hope he is doing better. Yes, he is amped up to say the least. Just imagine if we turned him loose on EPA! He has done great work, I am just concerned that he has sacrificed too much for it.
Best,
Terry
Comment from J E
Time May 22, 2009 at 9:30 pm
1) We were led to believe that asbestos was the dangerous fiber, not tremolite, and that EPA was just using the aspect ratio as a way to increase their regulatory reach. I think those on trial really believed it, up until some time after 1990.
2) Those who are actually to blame died of old age years ago – the Zonolite executives. Tales were told of the workers coming out of the “asbestos mill” looking like snowmen back when they were actually trying to produce a tremolite product to compete with asbestos. Those days were when the town and region were so terribly contaminated. Most of the damage was done before Grace came on the scene.
3) Why did nobody ever talk about the cookies? They (Zonolite) considered trying to replace oatmeal in cookies with vermiculite. I am not making this up.
4) Why is it that those wronged are so determined that “somebody” must pay that they are willing to demand scapegoats when the real villains are not available or have already died? Killing a scapegoat is not the same thing as getting justice.
5) This trial was about intimidation, pure and simple. The next company that wants to say to EPA “you can’t come in here without a search warrant” will have to look at this situation. It was stupid of Grace and the executives to get into that kind of argument and it cost the company $145 million that could have, should have been used for some sort of mitigation. It cost the executives years of wondering if the rest of their retirement would be in government facilities. It did absolutely nothing for the citizens of Libby.
Comment from Terry Trent
Time May 25, 2009 at 11:21 am
Dear JE.. You bring up some interesting points and some logic that need apply. I look at what is happening today with sites that are just now developing. EPA tells no one anything. If the Libby mine were just starting production today, as are environmental situations such as El Dorado, Amador, Tuolumne Counties California, Fairfax Virginia and maybe we can throw Chicago in there too, then EPA absolutely would not tell anyone in Libby anything about what is about to happen. They would not tell Grace, they would not tell the workers, they would not tell the people. Why? I do not know. But that is precisely what is happening in other Tremolite areas, people are going to their deaths left and right, at the hands of literally hundreds of corporations that have not been told, and have no expertise to figure it out for themselves.
My corporation would turn on a dime if EPA actually truthfully informed, and completely stop what it is doing, and find something else to do. I think almost all corporations would do this, if informed accurately. Grace eventually did. Yet, EPA instead chooses to act as if a corporation can solve the problems by following EPA’s, and OSHA rules…which as we heard in this trial….do not work. You are right I believe that much of what happened in Libby happened years ago…yet there is still much more to come. Deaths will not recede much for the greater part of the next 100 years. 100 years beginning in 1999. Deaths from Tremolite exposures are just beginning in other areas of our country as I note above. Had Grace followed all OSHA and EPA regulations precisely during their tenure, we would still have the same problems in Libby, such is the uncompromising nature of the Tremolite (and related ) fibers.
TTrent
Comment from J E
Time May 28, 2009 at 10:07 am
How is this situation any different, really, from tobacco?
If tobacco is a 90 times multiplier on the deleterious effects of tremolite, how many other things does it multiply?
And still it is legal!
Comment from Terry Trent
Time May 28, 2009 at 2:23 pm
Tobacco is an assumed risk…meaning you have a choice.
Tremolite is an imposed risk…meaning you don’t!
TT
PS: Tobacco does not multiply mesothelioma. And for innocent bystanders, mesothelioma is just about the only subject.
Comment from J E
Time May 29, 2009 at 8:03 am
I remember how most bars, offices, restaurants, airplanes, etc. contained blue clouds, so the “assumed risk” argument is pretty weak. And you could make the parallel that the wives assumed the risk of washing the clothes the same way the barmaid assumed the risk.
My point is that the regulatory power needed for tremolite has been blocked by the tobacco lobby and tobacco consumers driven by a Reaganesque “all regulations are bad” mentality.
Fortunately, we seem to be getting over that.
If an unregulated, free-market economy is good, why isn’t Somalia a paradise?
Are you saying that the incidence of mesothelioma is the same in smokers and in non-smokers?
Comment from Terry Trent
Time June 1, 2009 at 1:30 pm
The disease mesothelioma is not affected by smoking. You are not at greater or lessor risk if you smoke or don’t. That just applies to lung cancer and asbestosis.
Yes, second hand smoke is an imposed risk. But that is “second hand smoke” not “smoking” which is an assumed risk.
Examples of assumed risk are: Driving your car, climbing a ladder, sky diving, scuba diving, smoking, inhaling glue fumes, snorting cocaine, taking LSD, crossing the street without looking…things for which it is hard to blame anyone for any adverse outcomes.
Examples of imposed risk are : Somebody shooting you, Your coach hitting you in the head with his baseball bat, Cyanide fumes let loose in a subway car, Somebody throwing you off a cliff or out of an airplane, Tremolite exposures. Things for which there is a trigger pulled by others or triggering events that end with death. Or events that could be intervened by others to stop death.
In the case of Libby, triggering events were pulled by the Old Public Health Agency, then pulled again by EPA ostensibly because it costs too much money to actually intervene. Then pulled again and again over the years by EPA. Imposing death upon a certain percentage of the population, imposing life long illness upon a greater part of the population and making it look as if or actually saying it is an assumed risk. Triggers regarding Tremolite are almost constantly being pulled today, by EPA, it is anyone’s guess as to why.
As you can see with imposed risk, there is always somebody to blame for having pulled the trigger or set the chain of events into motion. In our case, WR Grace didn’t do it, intentionally anyway, Public Health and EPA have done it intentionally, with full knowledge of what was going to happen and continue today to do the same.
TT
Comment from jeb
Time August 22, 2009 at 4:39 am
Mike – you were doing so well at Paul’s blog at narrowing the blame. What happened? Narrowing is good, shotgun is bad.
Saying EPA is equally guilty as the corporations, forgets the fact that the corporation turned out to be “not guilty”!
Also, let’s say you are right about Malloy. Any thoughts as to why he might do this? Any possibility that his years of training and experience, of which almost none of us can pretend to understand, allowed him to see greater and lessor injustices?
Terry – I’m going to have to go with Mike on this one. He hit the nail on the head.
Comment from David Perrault
Time May 12, 2009 at 7:01 pm
Things would have been different if the prosecution actually handled the case correctly and if Judge Molloy wasn’t so blatantly in favor of the defendants before the trial began.
Judging by Molloy’s comments and rulings throughout the case, as reported here and elsewhere, I think there needs to be an investigation to see whether someone paid him off. Molloy won this case for the defendants before Bernick ever said a word and that’s a shame considering how many people have died as a result of exposure to asbestos.