9th Circuit allows witnesses vs. Grace

An appellate court in Seattle has overturned a Missoula judge's decision to ban dozens of witnesses from testifying in the criminal case against W.R. Grace & Co., the chemical company charged with concealing the dangers of asbestos-contaminated vermiculite mined near Libby.

In announcing its decision Thursday, the 9th U.S. Circuit Court of Appeals said the judge exceeded his authority in issuing several pretrial orders last year.

The three senior judges sided with federal prosecutors who argued that U.S. District Judge Donald Molloy's decision hindered their efforts to bring Grace and seven of its current and former senior executives and managers to trial last September.

“This court's recent pretrial rulings have changed the legal and evidentiary landscape of trial,” Assistant U.S. Attorney Kris McLean wrote last year in a brief announcing the government's appeals.

In addition to barring testimony from scores of expert and nonexpert witnesses, Molloy also prohibited the government's use of numerous documents, including scientific and medical studies spelling out the hazards of asbestos. Expert witnesses may now rely on those studies when they testify at trial, which is tentatively scheduled for Sept. 3.

Federal prosecutors are still awaiting rulings on another interlocutory appeal regarding Molloy's decision to dismiss the indictment's most serious charges - multiple counts of “knowing endangerment” - that would have carried the stiffest sentence.

However, Thursday's decision marks a colossal triumph for the government, and alleviates previous concerns that lawyers would be left with a case too weak and diluted to prosecute.

“I am gratified by today's decision by the 9th Circuit,” said Montana U.S. Attorney Bill Mercer. “It moves the United States one step closer to the ultimate goal of trying the grand jury's charge against W.R. Grace and the individual defendants to a jury with a full complement of evidence.”

In February 2005, the government obtained a 49-page, 10-count indictment against Grace and its officers, alleging criminal acts spanning 26 years and creating at least 1,200 victims and 230 potential witnesses. Those charges relate to the improper disposal of disease-causing asbestos, which experts say led to hundreds of deaths and sickened thousands more in Libby.

At a packed court hearing last month, federal lawyers spent an entire day urging the 9th Circuit to overturn Molloy's rulings, which required the government to submit a pretrial list of witnesses by September 2005 - more than a year before the scheduled trial - and later precluded the government from using any unlisted witnesses in its case-in-chief.

Five of those witnesses will testify to injuries proving Grace knew about the danger posed by asbestos exposure. The Clean Air Act states that it is a crime for anyone to knowingly release hazardous pollutants into the air with the knowledge those actions will place another person in imminent danger of death or serious injury, and carries sentences of 15 years or more.

“We agree that this testimony is material to the indictment,” the appellate court's decision states. “Even if the testimony relates to periods for which Grace cannot be held criminally liable under the statute of limitations, knowledge does not evaporate, and thus the testimony appears relevant.”

Molloy's order also precluded the government's identified expert witnesses from relying on documents that were not disclosed prior to the cutoff date, despite evolving scientific and medical studies that lawyers hoped to present at trial.

The judge's decisions were based on defense motions alleging the government willfully failed to disclose the numerous studies and witnesses earlier in order to gain a tactical advantage.

In granting the motions, Molloy noted the government's list of witnesses had gone from an estimated 60 to 80 in March 2005 to some 233 in September.

At the behest of prosecutors, the appellate court has expedited the appeals because one government witness and a defendant have already died since the trial was postponed last year.

Les Skramstad, an activist and former Libby resident who fought for years against Grace, died in January, just 11 weeks after being diagnosed with mesothelioma, a fast-killing form of lung cancer attributed to asbestos exposure.

A month later, Alan Stringer, a former general manager of the Libby mine who was charged, also died of cancer.

Prosecutors expect the appellate judges to decide the final appeal before the trial date, slated to take place Sept. 3 in Missoula.

Reporter Tristan Scott can be reached at 523-5264 or at tscott@missoulian.com

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