And with nearly 30 motions still pending before trial, the arraignment Wednesday morning also kicked off a three-day marathon of pretrial wrangling as attorneys on both sides fought to chip away at their opponents' cases.
In what is expected to be a grueling three days, attorneys are expected to plod through the motions by Friday, presenting each argument in turn.
W.R. Grace and its top executives - both current and former - were initially charged in February 2005. The indictment charged that the mine, which closed in 1990, released dangerous, cancer-causing asbestos into the air for decades and, in doing so, knowingly endangered its workers and residents of Libby.
But after a federal judge dismissed part of the government's case because of a statute of limitations technicality, a federal grand jury last month returned a “superseding indictment” that revises certain allegations.
On Wednesday, the Grace executives and their dozen-plus lawyers filled the federal courtroom in Missoula, while officials from the Environmental Protection Agency, eager law students and curious local attorneys packed the gallery.
Because many of the arguments will deal with the admissibility of various evidence and the allowance of certain expert testimony, the court has taken to calling the series of arguments the Daubert hearings. The Daubert case was a landmark Supreme Court decision requiring a judge to determine that a science indeed exists before admitting scientific expert testimony.
Attorneys for Grace fought Wednesday to exclude many of the government's expert witnesses on the grounds of relevance and the improper disclosure under federal rules of evidence, which provide the standard for admitting expert scientific testimony in a federal trial.
One attorney for Grace argued that Dr. Aubrey Miller, a toxicologist, should not be allowed to testify about the dangers of asbestos due to the absence of scientific evidence governing dangerous levels of asbestos exposure.
But Assistant U.S. Attorney Kris McLean argued that the witness's testimony was crucial to prove that health risks can in fact arise from exposure to asbestos.
“No one knows what happens when a little girl sits on a pile of vermiculite and digs in it, except that there is an increased risk of disease, that's what Dr. Miller's testimony is about,” McLean said. “For Grace to assert that somehow these were low levels of asbestos exposure is just incredible. What's a low level? Grace wasn't monitoring the air post-1999. They don't know what the levels were. Nobody does except the EPA.”
While suppressing studies spelling out the dangers of its product, company officials supplied vermiculite to a junior high school for use on its running track and lied about it during the EPA's investigation, according to the indictment. The document also cites instances in which company officials lied about having provided vermiculite insulation to locals for their homes, as well as for use at a nearby ice rink.
However, perhaps the most contentious motion will decide the strength of the government's case against Grace.
In a June 8 order, Chief U.S. District Judge Don Molloy dismissed part of the government's case, ruling that the initial indictment failed to allege an overt act, “in furtherance” of the alleged offense, before the time limit for making such assertions had lapsed.
Molloy, in his order last month, wrote that conspiracy requires an overt act to be committed within the limitations period. The timer on the five-year statute of limitations began ticking in November 1999, according to court records.
The dismissed allegations were part of a conspiracy count that stands at the heart of the case against Grace.
The single count of conspiracy claims that the company and its employees knowingly endangered miners and Libby-area residents. The charge also contends that the defendants conspired to rook the government by impeding the work of environmental agencies involved in health and safety regulations.
The revised eight-count indictment also lists three counts of Clean Air Act violations and four counts of obstruction of justice. The original 10-count indictment included two counts of wire fraud.
In the revised indictment, prosecutors assert that the company, in the midst of an investigation led by the Environmental Protection Agency, concealed known hazards posed by the now-defunct vermiculite mine. As a result of those delays, the revised indictment contends, the mine continued to release deadly asbestos into Libby's air.
But the defense argues that the revised indictment is almost identical to the first.
The only difference, the defense argues, is a claim that the defendants hindered the EPA investigation and, in doing so, caused additional release of asbestos into the air, constituting an “overt act.”
Defense attorneys have filed another motion to dismiss the revised allegations in the conspiracy count, calling the new indictment an effort to “plead around” Molloy's order of dismissal.
The revised indictment fails to allege a new offense, or “overt act,” the attorneys wrote in their motion.
Because the indictment raises the same “knowing endangerment” assertions as those previously dismissed, prosecutors are in defiance of Molloy's order, according to the defense motion.
The attorneys also asked to have their motion decided before Wednesday's arraignment, a privilege that Molloy denied.
But in the government's response, prosecutors argue that the revised indictment successfully “cured the technical defect found by this court, and therefore negates the statute of limitations problem.”
Reporter Tristan Scott can be reached at 523-5264 or at tscott@missoulian.com.
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