It has been a few weeks since I’ve discussed the Grace trial in Libby, Montana.  This week, it is my only topic.   What was, to me, the most dramatic testimony presented recently was that of former Grace environmental engineer, Randy Geiger.  Mr. Geiger testified that he became aware that Grace donated contaminated materials to the Libby High School for its running track.  To assess the risks to the student-athletes and liability to Grace, Mr. Geiger conducted a very practical test.  He went to the track and ran laps for 30 minutes.  At the conclusion of 30 minutes, his testing revealed high concentrations of harmful asbestos fibers.

As of this writing, the prosecution has concluded presenting its case.   The jury has been adjourned, and much of the week has been devoted to wrangling amongst the lawyers about what exhibits can be submitted, and what, if any, testimony can be disregarded.

The testimony of Doctor Robert Locke was carefully examined by all parties and the judge.  As you recall, Robert Locke is a former vice president with Grace.  He has testified against his former employer in this case.  Dr. Locke saved many documents that have proved to be damning to Grace officials.

Doctor Locke has been given immunity from the prosecution in exchange for his testimony.  The documents Dr. Locke saved also tended to prove his own involvement in Grace’s poisoning of Libby, Montana.  Lawyers defending Grace are saying the deal given to Locke renders his testimony unbelievable.  Specifically, Grace argues that Locke is, in essence, an advocate for the government.

Mr. Locke was harshly criticized by the court for providing testimony which varied from that which he provided in 2004 concerning the sale of land.  In 2004 Locke testified that he had never discussed selling asbestos-contaminated land to a couple wanting to build a greenhouse.  At trial, Locke testified that he discouraged Grace officials from selling the landbecause of the liability the land carried.

An excellent play-by-play of the trial’s proceedings, including a listing of key witnesses, lawyers and the judge can be found here:  http://blog.umt.edu/gracecase/

What I find concerning is that Dr. Locke can not come clean without being called a liar.  (In fact, the judge called him exactly that at one point.)  I don’t think it can be disputed that Dr. Locke’s motivation to cooperate with the prosecution is to save himself from prosecution.  However, to characterize him as an “advocate for the government” isn’t necessarily fair either.   Maybe he is an advocate for the people of Libby.  Maybe he is hoping to alleviate his own feelings of guilt.  Maybe he hopes to inspire others who know of corporate wrong-doing to stand up to and against the current of their comfortable corporate culture and do what is right.  Frankly, I can’t know exactly all that motivates him, but I do applaud his decision to speak out.  I also applaud the prosecutors for giving a potential defendant an “out” simply by “coming clean.”

What I’m finding most frustrating and disturbing about the trial in Libby is what the jury ISN’T hearing.  What they have been told is that the danger of contracting an asbestos disease is exacerbated by the frequency and heaviness of the exposure.  This “dose-response” explanation was explained at trial by Dr. Richard Lemen.  Dr. Lemen is a pre-eminent epidemiologist whose specialty is explaining how asbestos can cause disease.  He was only allowed to testify about the risks to Grace Mine workers and their families.

What he WASN’T allowed to discuss, and what the jury DIDN’T hear was the huge dangers there were and continue to be in Libby to people who didn’t have any connection to the mine. A document disclosed in a bankruptcy proceeding in Delaware revealed that people who neither worked for Grace nor shared a home with someone who did were at equal or greater risk for asbestos disease. In fact, the report states that “Community residents (of Libby) with no history of occupational exposures represent half or more of the sickened community.” Doctors to this day, the report says, continue to diagnose asbestos-related diseases at a rate of one per week.

Why this is important is that it goes to the prosecution’s case that the dangers Grace has created are ongoing. That is to say the environmental offenses with which they are charged are recent and present. Grace has argued that its conduct occurred before the environmental laws were enacted, and that its conduct was beyond the statute of limitations. The reason this report hasn’t been disclosed is that the prosecution had to disclose all of its evidence 2 years ago. This report has only been available for a couple months. At this point, the jury in the Grace trial probably thinks that what happened in Libby occurred years ago.

The obvious injustice of this situation is only matched by Grace’s brazen indifference. Grace has hidden in bankruptcy to avoid paying the people they’ve sickened, and the families they’ve destroyed by killing one or more family members. It is hard, even for a jaded lawyer like me, not to be utterly outraged.

Thankfully, the judge has not irrevocably excluded the recently discovered evidence. The prosecution still may get it into evidence depending on how Grace conducts its defense. Stay tuned.