Results matching “grace libby”

Overcriminalization, continued - PointOfLaw Forum

Apropos Walter's Jim Copland's post below about today's committee hearing on the over-criminalization of conduct and the over-federalization of criminal law, we commented in this Shopfloor.org post that this sort of prosecutorial excess seems to occur more often in areas of environmental law and regulation. In particular, we were reminded of the federal prosecution of the former W.R. Grace executives for criminal violations of the Clean Air Act related to the Libby, Mont., vermiculite mine and asbestos exposure case. (Earlier Point of Law posts.)

Coincidentally, a news release today points us to an article in the July edition of InsideCounsel, "Asbestos Acquittal: W.R. Grace Unexpectedly Wins Environmental Crimes Trial." James O'Toole, Jr., a shareholder and chair of the Environmental and Toxic Tort Practice Group in Buchanan Ingersoll & Rooney's Philadelphia office, is quoted in the story, and he observes:

I don't believe you're going to see the Justice Department or the EPA shy away from criminal prosecutions in the future simply because of some of these missteps in the past. The agency's proposed budget is going to have at least a $600 million increase, with $32 million for enforcement alone. They're going to hire 30-plus additional positions just to handle enforcement and investigation: When you have a robust budget and a focused agency, and a commitment supported by the administration, you can't help but think there's going to be greater scrutiny and enforcement across all environmental programs.

That seems like a good prediction.

From The Missoulian, "Prosecutors dismiss charges against final Grace defendant":

Last month, Grace and three individual defendants - Robert Bettacchi, Jack Wolter and Henry Eschenbach - were acquitted of charges relating to a criminal conspiracy involving Clean Air Act violations and obstruction of justice. A fourth defendant, the company's in-house legal counsel, O. Mario Favorito, was severed from the case due to potential conflicts with his defense, and he was slated to stand trial separately in September.

However, prosecutors decided to forego efforts to bring Favorito's case to trial, apparently because of the not guilty verdicts. The jury of six men and six women heard 35 days' worth of testimony over the course of several months before finding the defendants innocent on all counts.

The Missoulian quotes the government's order, which is not yet posted at the court's document site for the case.

Earlier POL posts on the trial here. Whatever the motivation, prosecutors overreached by attempting to turn a regulatory and civil matter into a criminal one.

Andrea Peacock is a vociferous anti-W.R. Grace writer and she's writing in the hard-left Counterpunch, but her analysis of last week's jury decision in the U.S. District Court criminal trial of Grace and its former executives still contains interesting detail about the defense and prosecution arguments. The column is "No Justice for Libby." The second headline is, "Corporate Poisoners Walk in Sickening Verdict," so you get the drift.

Peacock now proposes state prosecution of Grace for criminally negligent homicide. One Libby activist, Norita Skramstad, whose husband Les died in 2007 of mesothelioma, reacts: "I think we'll just go on with our lives," she says.

A useful reminder: W.R. Grace reached a settlement with the EPA to pay $250 million for a Superfund clean-up of Libby and has proposed a $2.4 billion asbestos trust fund as part of its Chapter 11 reorganization.

There were many reasons criminal charges should not have been brought or allowed to continue by the 9th Circuit.

A reporter's account of the jury deliberations in the W.R. Grace asbestos trial noted the complicated issue of timing. From the Cops and Courts blog of The Missoulian:

The jury of six men and six women received the criminal case Wednesday evening and reached their verdicts Friday morning. They faced the onerous task of interpreting evidence and testimony that was presented over the course of 35 days, as well as determining whether the alleged crimes conduct occurred within an applicable time frame. The criminal provision to the Clean Air Act, for example, wasn't enacted until 1990, the same year the Libby mine ceased operations.

We can well imagine a debate around the jury room centered on this question: "How could they have conspired to violate a law that hadn't been written yet?"

More powerfully persuasive in a mens rea sort of way might have been this witness:

The defense then called Mike McCaig to the stand, son of former Grace manager and defendant in this case, William McCaig. Mike McCaig is a computer programmer from Simpsonville, S.C. He grew up in Libby and graduated from Libby High School in 1989.

Through Mike McCaig's testimony, the defense showed that William McCaig brought his family up to the mine, used mine products in the family garden and wouldn't have done so had he known the health risk of breathing dust from the contaminated vermiculite.

Juror A asks, "If they knew it was dangerous, they never would have let their kids hang around the mine, would they?" Juror B responds. "Yes, that's hard to imagine."

Asbestos acquittal: It's the judge's fault - PointOfLaw Forum

From AP:

"This is a joke and a travesty of our justice system. This judge should be impeached," said Brent Skramstad, who lost his father, Les, to mesothelioma in January 2007.

Supporters of the criminal prosecution of W.R. Grace and its former executives in Libby, Montana, have decided it's U.S. District Court Judge Donald Molloy fault. From the website of Andrew Schneider, a former investigative reporter for the Seattle Post-Intelligencer, which made the Libby asbestos story a cause celebre, "Jury acquits W.R. Grace of all criminal charges. Many wonder how it happened."

The verdict, joyful to some and painful to many, was no surprise. Most of the observers in the court gallery expected, at the most, a guilty verdict on only one of the eight counts, such as obstruction of justice.

The heavy charges of conspiracy and knowing endangerment that carried long prison sentences were taken out of play early as Molloy imposed repeated restrictions and limitations on what evidence and witnesses the prosecution could use.

Senator Patty Murray (D-WA) issued a statement upon the jury's decision in the federal criminal trial of W.R. Grace and its former executives for covering up the health damage caused by mining of asbestos-laden vermiculite in Libby, Montana. "Disappointing verdict," she says. So the jury was wrong?

Today's disappointing verdict is a reminder of the urgent need to ban asbestos in America. The families of Libby, Montana have suffered enough and my thoughts are with them today. The terrible sacrifices they have endured are shared by the families of more than 10,000 Americans who die every year from asbestos-related diseases - deaths that are preventable.

Asbestos destroys lives and the tragedy at Libby has shown that it can
devastate entire communities.  We must move forward to protect America's workers and families once and for all.

Murray has a section of her official website devoted to asbestos. The last entry before Friday's was in December 2007. There is no asbestos-related legislation pending in Congress.

A quick verdict of not guilty in the federal criminal trial of W.R. Grace and five, four, three former executives for conspiring to cover up health damage from asbestos in a Libby, Montana, vermiculite mine. Walter notes the verdict at Overlawyered.

W.R. Grace has issued a statement from Fred Festa, Chairman, President and CEO. Excerpt:

We at Grace are gratified by today's verdict and thank the men and women of the jury who were open to hearing the facts. We always believed that Grace and its former executives had acted properly and that a jury would come to the same conclusion when confronted with the evidence.

AP story, "Jury acquits W.R. Grace, 3 execs in asbestos case." And from The Missoulian, "UPDATE ON W.R. GRACE VERDICT: Libby reacts to news of not guilty verdicts":

"This is the longest trial that I have been involved in," said U.S. District Judge Donald Molloy of the 35-day trial that began in February. "It is I think truly a reflection of how we are supposed to govern ourselves. Ultimately it is the people of the community who have to make a decision. This is a case in which very few people who know all of the evidence, and you do. We appreciate your service."

The defense repeatedly claimed prosecutorial misconduct, and the prosecution asked for dismissal of charges against two of the original defendants, admitting they lacked evidence to make the case.

"Lost"-like time-shifting may be required by the jurors. From The Missoulian story:


Jurors now face the difficult task of determining whether the evidence proves that Grace's alleged criminal conduct occurred within an applicable time frame. For example, the criminal provision to the Clean Air Act, which charges knowing endangerment, wasn't enacted until 1990, the same year the Libby mine ceased operations.

In order to convict, then, the jury must find that Grace committed overt criminal acts not only after 1990, but also after 1999. That's when the contamination was discovered in Libby, triggering a five-year statute of limitations.


Federal prosecutors moved to drop criminal charges against another former W.R. Grace executive in Missoula yesterday, and District Court Judge Donald Malloy quickly agreed. From AP:

A day earlier, Molloy questioned how the prosecution intended to prove a conspiracy charge against McCaig, who left Libby in 1988.

"You can't have a conspiracy to do something illegal, can you, if there is no law that makes your conduct illegal?" Molloy asked, referring to the Clean Air Act's criminal statute, which wasn't enacted until 1990.

Three former Grace executives and the company itself remain defendants in the case, charged with covering up the damage to human health from asbestos-containing vermiculite mined near Libby, Mont.

Earlier posts on Libby trial here. The case could go to the jury next week, if it gets that far.

Here in D.C., the EPA has released a government memo on the clean-up of the site, just a week after Public Employees for Environmental Responsibility filed suit. Quick work. PEER issued a news release, which included praise for the Obama Administration:

This quick resolution of the PEER lawsuit was the first indication that the pledges by President Obama and Attorney General Holder of a new openness and presumption of disclosure in administering the Freedom of Information Act will be honored.

"We are encouraged that the Freedom of Information Act may become an even more powerful tool for government accountability," remarked PEER Staff Counsel Christine Erickson, who filed the lawsuit. "We have many more dirty bureaucratic closets that we intend to air out."

True enough. And the Obama Administration -- as with any Administration -- will eagerly air out the ones it wants aired out.

Federal District Court Judge Donald W. Molloy dismissed all charges against one of five former W.R. Grace executives facing criminal prosecution allegedly covering up the health effects of asbestos from a vermiculite mine in Libby, Montana. Molloy also tore into prosecutors for their handling of the case at a hearing in Missoula Monday.

Prosecutors responded weakly, or mildly, or lamely. From The New York Times, "Judge in Asbestos Case Angrily Lectures Prosecutors":

Judge Molloy responded with strong statements about their judgment, ethics and tactics. He wondered aloud about his options, from declaring a mistrial to throwing out the testimony of the star witness, Robert H. Locke, a former Grace executive who testified that the executives had known of the dangers and were actively involved in covering them up.

Judge Molloy said that he believed almost nothing Mr. Locke had told the jury, and that he also doubted the good faith of the prosecutors, whose members sat stone-faced before him.

When you're ratcheting up civil matters into criminal prosecutions, you should probably make sure to be extra conscientious.

More...

UPDATE (3:35 p.m.): The judge rejects defense motion for dismissal and allows trial of other four defendants to continue. AP story.

The federal criminal trial of former W.R. Grace executives in Missoula, Montana, reached another stage this week with the prosecution calling their final witness. The lack of national attention to this noteworthy trial continues to surprise: The Justice Department going after corporate executives for allegedly covering up the health dangers of asbestos contamination from vermiculite mining in Libby. Doesn't that play into a classic storyline of business greed and oppression and why isn't there a big budget movie starring Julia Roberts?

One reason is dead and dying newspapers. The Libby contamination story was driven by the no-longer-printing but still a website Seattle Post-Intelligencer, a true newspaper campaign later turned into an anti-Grace book, "The Air That Kills." Making no pretense toward balance, lead reporter Andrew Schneider now publishes a website, AndrewSchneiderInvestigates popular with public health activists. The Missoulian is covering the story, but it tries to maintain a level of journalistic fairness, a balance that undermines efforts to turn the case into a cause celebre. A healthy, print PI would be flogging this case shamelessly.

There is some movement among the activists, though.

In Missoula, defense attorneys are aggressively attacking the prosecutors in the criminal trial of W.R. Grace executives. From Bloomberg, "W.R. Grace Will Seek Acquittal, Claims Misconduct":

W.R. Grace & Co. lawyers told a judge that prosecutors' misconduct has irreparably tainted a criminal pollution trial against it and five former executives and they will ask next week for the case to be dismissed.

The lawyers said during a hearing yesterday without the jury present that they will ask U.S. District Judge Donald Molloy in Missoula, Montana, to find the defendants not guilty of all charges related to asbestos contamination in Libby, Montana.

The defense attorneys contend that the prosecution withheld evidence and, again Bloomberg, "that a key prosecution witness, former Grace executive Robert Locke, lied on the witness stand and had an improperly close working relationship with the prosecution team."

Now doesn't that sound like the arguments successfully waged by Sen. Ted Stevens' attorneys, albeit after the conviction? The judge seems to be taking them seriously.

More from The Missoulian, "W.R. Grace defense: Justice Department out of control": "Defense lawyers in the W.R. Grace & Co. trial on Friday said the purported misconduct of federal prosecutors is symptomatic of an errant, win-at-all-costs Justice Department, and urged the presiding judge to dismiss the case."

Asbestos in Springfield, Missoula and Washington - PointOfLaw Forum

The Illinois Supreme Court today reversed its 1987 Lipke rule that prohibited defendants in asbestos cases from introducing evidence about other exposures the plaintiffs may have experienced. The Madison County Record (Ill.) has the details about the 5-1 opinion in the case, Nolan v. Weil-McLain, in "Illinois Supreme Court strikes long-time asbestos evidence ruling." (The opinion is here as a .pdf file).

The original plaintiff was a plumber-pipefitter who worked many years in jobs exposing him to amphibole asbestos, which can cause mesothelioma, but only 20-25 times in 38 years to chrysotile asbestos, which studies show do not cause mesothelioma. But the defendant company was not allowed to introduce evidence of the plaintiff's exposure to amphibole asbestos.

Ed Murnane of the Illinois Civil Justice League remarks: "By striking down the arbitrary provisions of Lipke - the ruling that made it impossible for Illinois judges to grant a fair trial to defendants - the Supreme Court is improving the legal environment in Illinois and, finally, allowing defendants to actually present their side of the case at trial." The ICJL and my employers at the National Association of Manufacturers joined other business and legal-reform groups in filing an amicus brief, which you can access at the NAM's Legal Beagle here. And there's more background from the Record in this story.

Out in Missoula, meanwhile, the criminal trial continues in U.S. District Court of former W.R. Grace executives accused of covering out the health consequences of asbestos exposure from vermiculite mining in Libby, Montana. Strange how little national attention this CRIMINAL case for obstruction and violation of the Clean Air Act is receiving.

Around the Web: March 29, 2008 - PointOfLaw Forum

  • W.R. Grace, the Criminal Trial: Strange how little media attention this case has gotten. In Missoula, Mont., the federal criminal trial continues of W.R. Grace executives charged with covering up the asbestos-related health consequences of vermiculite mining in Libby. From the Missoulian, via the Seattle Times: "In an argumentative cross-examination, the lead defense counsel for W.R. Grace & Co. suggested Wednesday that a key government witness has a personal ax to grind in claiming corporate malfeasance by Grace." Imagine that, an argumentative cross-examination. The Missoulian has a special web section devoted to the Libby asbestos issue.
  • The Howling, ESA Edition: Also from The Missoulian, "Litigation over wolves far from over": A revised rule will be published this week delisting the gray wolf as an endangered species in Montana and Wyoming. Staff attorney Jenny Harbine of EarthJustice says the group will sue. Again. "We've already shown that such a state-by-state approach to delisting is unlawful. And we will argue the recovery numbers the Fish and Wildlife Service established are inadequate for long-term sustainability."

  • Unused Arbitration: From the Asheville (N.C.) Citizen-Times, "NC malpractice arbitration going unused": "Before it became state law in 2007, a new method of resolving lawsuits against doctors was hailed as a historic detente between physicians and trial lawyers...The two biggest malpractice insurers of North Carolina doctors say none of their clients have gone through the special kind of arbitration, which requires both sides' consent and caps damages at $1 million." David Sousa, general counsel of Medical Mutual Insurance Co., says "There are just no plaintiffs' lawyers who are going to concede at the outset that their case (isn't) worth more than what the cap is."

  • More Doctors to Sue, Now the Military: The American Association for Justice hails a new bill that would allow active service members to use the civil courts to sue for medical malpractice. The news release's headline: "Carmelo Rodriguez Military Medical Accountability Act Will Restore Rights of Servicemembers Injured By Medical Negligence." The bill is H.R. 1478, introduced by Rep. Maurice Hinchey (D-NY) with no cosponsors. The Congressman issued a news release, "Hinchey Testifies Before House Judiciary Panel on His Bill to Reverse Military Medical Malpractice Injustice." We'd count this among the "trial lawyer" earmarks being considered by Congress.

  • Nigeria Reaching into U.S. Courts: Also from the trial lawyers' association is the featured article from this month's "Trial" magazine, "Second Circuit lets Nigerian children's drug case proceed in U.S." At issue is an Alien Tort Claims Act suit against Pfizer for the 1996 trial of its anti-meningitis drug, Trovan. Pfizer issued a statement upon the court's ruling: "The Appeals Court's divided decision is only a procedural ruling that may return the cases to the District Court for further consideration; it is not a determination on their merits. Indeed, the strong dissent by one of the judges may be grounds for further appellate proceedings." In addition, patients given the drug had a higher survival rate than those who underwent other treatment.

Around the web, February 27 - PointOfLaw Forum

  • Voices of moderation, trial lawyer dept.: Atlanta tort attorney likens Georgia state damages caps to steps taken by Russia's Putin to curb trials of "crimes against state" [Ken Shigley]
  • Prosecution of W.R. Grace execs in wake of environmental offenses against populace of Libby, Mont. is being liveblogged in joint project by U. of Montana law, journalism schools [site via TortsProf]
  • "Study Finds Firms With Market Power Don't Impose One-Sided Terms on Consumers in Software License Agreements" [Consumer Law & Policy Blog, and all credit to them for highlighting research findings that will discomfit some of their co-thinkers]
  • EFCA/card check could have some of its biggest impact in "right-to-work" states [Carter @ ShopFloor]
  • Uh-oh: new push for more lawyer-driven voir dire, easier bouncing of juror prospects "for cause" http://is.gd/hs6p [Anne Reed, a ways back]
  • CPSIA vs. Irish step dance costume makers [Overlawyered]

Criminal trial of W.R. Grace executives - PointOfLaw Forum

The charges are based on the executives' failure to take stronger steps to protect the population of Libby, Montana, from the dispersal of mined vermiculite naturally containing asbestos. It is being widely watched as a test case in the application of criminal law to environmental and product-related injury; the New York Times account quotes lawprof and friend of this site Lester Brickman.

Criminalizing asbestos cases - PointOfLaw Forum

Given the Supreme Court's high-profile rulings in Heller and the Exxon Valdez cases, little national media attention was paid to the Court's June 23rd decision to not consider W.R. Grace's challenge to the criminal indictments of top executives. The Missoulian quotes W.R. Grace spokesman Greg Euston: "We are disappointed. We take this seriously. When Judge Molloy sets a trial date, we will be prepared to defend ourselves." (Washington Post story.)

The criminal case begin with a federal grand jury indictment in Montana in February 2005, charging six executives and the company with conspiracy, Clean Air Act violations, wirefraud and obstruction of justice. (Indictment here; Seattle Post-Intelligencer story here.) As the case progressed, the Ninth Circuit overturned the trial court's decision to exclude evidence about those forms of asbestos that do not fall within the EPA's definition.

The National Association of Manufacturers -- my employers -- the American Chemistry Council and National Association of Criminal Defense Lawyers filed an amicus brief in May (available here) asking the Supreme Court to hear the case. The brief argued that the prosecution used a definition of asbestos far broader than the long-standing definition in EPA's regulations, subjecting the defendants to potential jail time without due process. The brief also contended that the Ninth Circuit ruling threatened to treat defendants there more harshly than those elsewhere, using broad interpretations of hazardous materials, and refusing to recognize the rule of lenity, which requires that criminal statutes be clear and provide fair warning. It also undermines the requirement of mens rea when assessing blame, which will cause businesses to over-invest in regulatory compliance.

The U.S. District Court in Montana maintains a website with all the case documents here. And, of course, the criminal case is separate from the civil personal injury claims, which W.R. Grace settled in April in a deal worth about $1.8 billion, settlements which will allow the company to emerge from the bankruptcy declared in 2001.

The media coverage has been interesting in its own right. The W.R. Grace case is understandably high profile in Montana -- the vermiculite was mined in Libby - and the Seattle Post-Intelligencer has made the company the subject of an aggressive multiyear reporting initiative (i.e., campaign). There was a special report by the PI, "Uncivil Action," about the suffering of the workers and others associated with the Libby mine - health and economic pain - as well as the package, "Forgotten Killer," about the legacy of asbestos. And here's a lengthy chronological list of all the stories between 1999 and 2002. Putting my former cynical reporter's hat on, I'd say, "All designed to win the Pulitzer." (Hopes dashed.) But in any case, the coverage must have certainly influenced the major players.

We mention the coverage after reading the blog post by the PI's national correspondent Andrew Schneider -- author of the book on Libby and W.R. Grace, "An Air that Kills" - in commenting on the Supreme Court's decision last week: "After almost three years of stalling, questionable court rulings and a flood of appeals, it looks like the criminal trial of W.R. Grace and six of its top executives may actually happen."

One man's stalling is another man's due process, one might observe.

Libby, Montana - PointOfLaw Forum

Andrea Peacock is guest-blogging at Torts Prof Blog about the vermiculite mine in Libby, Montana; her conclusions can be gleaned from the title of her book, "Libby, Montana: Asbestos and the Deadly Silence of an American Corporation." For those wishing the other side of the story, W.R. Grace has a website with actual data and a timeline of what happened after it purchased the mine from the Zonolite Company. Litigation is also pending against the State of Montana; a 4-3 Montana Supreme Court decision in 2004, Orr v. Montana, held the state potentially liable, and provides additional background. The federal Agency for Toxic Substances and Disease Registry study on Libby showed an increase in mortality, but not the 200 deaths claimed by Peacock in her link to the report.

Lyle Denniston has an excellent post summarizing Grace's petition for certiorari to the Supreme Court over a Ninth Circuit decision on the Libby mine that Grace says obliterates CERCLA's requirement of cost-effectiveness analysis. The government's response is due May 30. (h/t W.W.)

The petition itself is also interesting because it provides a perspective on the infamous Libby, Montana disaster that one hasn't seen in press coverage. If the facts listed are true, then the entire Libby incident was a media-created health scare.

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