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W.R. Grace lawyers want trial moved from Montana

By Tristan Scott

MISSOULA - 11/26/05 - Six years of inflammatory press coverage, including 1,900 print articles, two books and two film documentaries, have biased potential jurors in the criminal case against W.R. Grace and Co., according to court documents filed by the company's lawyers, who argue that the trial should be moved out of Montana.

Seven of the company's current and former employees are to stand trial Sept. 11 next year in Missoula and are charged with conspiracy, Clean Air Act violations and other criminal charges.

An indictment unsealed in February charges that the chemical manufacturer and its top executives knew their vermiculite mine in Libby was releasing dangerous cancer-causing asbestos into the air and conspired to hide the hazards from workers and area residents.

But defense lawyers for Grace have petitioned U.S. District Judge Donald W. Molloy to transfer the case, arguing that a jury pool in Boise, Minneapolis, Denver, Salt Lake City or Seattle would be less prejudiced.

"The community in which the accused is to stand trial has been saturated with prejudicial and inflammatory pretrial publicity," the petition states.

At a Dec. 1 hearing in Missoula federal court, Molloy will determine whether the jury pool is spoiled enough to warrant a change of venue.

In a response to the petition, prosecuting attorneys point out that the "defendants face an extremely heavy burden to show that this case presents extreme circumstances in which the court must apply the rarely applicable presumption of juror prejudice."

"The defendants fall short of meeting this rigorous standard," the response states.

Prosecutors accuse Grace attorneys of leaning on "skewed" evidence gathered from a June survey, which found that of 2,008 Montana residents eligible for jury service, more than half were already convinced the company was guilty.

The government's response calls the survey "self-serving" and states that the polling was based on "flawed methodology."

Because Molloy has prohibited lawyers involved in the case from making public statements, attorneys on both sides would not comment.

Les Skramstad, a former mine worker diagnosed with asbestosis, said he opposes a change of venue.

"I think everybody on the continent knows about this case," Skramstad said. "So if they get a change of venue, where would they want to take it? To Russia?"

Skramstad started working at the Zonolite mine in 1959 and left the company before W.R. Grace and Co. bought it in 1963.

But three years at the mine was long enough for Skramstad to not only develop the asbestos-related lung disease, but also to spread it to his family.

While many former employees have developed asbestosis as a result of their direct exposure to the mine, their family members also suffer, since the tiny asbestos fibers were brought home on workers' clothing.

Exposure to asbestos can lead to lung cancer, and asbestosis a disease that causes scarring of the lungs.

When Skramstad started at the Zonolite mill, he worked as a sweeper in the dry mill, where raw ore was sent on a conveyor belt to the millworks.

"In that process, there was an incredible amount of dust, a very unique dust," he said. "It stuck to everything. It would stand right up on the guy wires, it would cling to whatever it touched. I don't have an explanation, but my job was to sweep it up, on all seven floors of the mill site."

Once the floors were swept, Skramstad loaded the dust into wheelbarrows and shoveled it onto another 200-foot-long conveyor belt, which carried away the dust, depositing it at the base of a mountain.

Skramstad was 23 years old.

"I quit on account of the dust, not that I knew it was harmful to me," he said. "But my wife, Rita, she couldn't keep up with the cleanup."

Then Skramstad was diagnosed with asbestosis. So were his wife and two oldest children, Brent and Laurel.

In Libby, the death rate from asbestosis is 40 to 80 times as high as elsewhere in Montana and the United States, according to the indictment.

Mesothelioma, a rare and aggressive form of cancer that normally occurs in only nine of a million people, has been found in at least 20 of the 8,000 residents of Libby and the surrounding area, prosecutors allege in the indictment.

And about 1,200 of the northwestern Montana town's residents have been identified as having asbestos-related diseases. Of that group, 70 percent never worked at the mine.

Skramstad just hopes he'll be alive when the trial begins this September.

"That's the big 'if,' " he said. "This asbestosis is fatal, and it just gets worse on a daily basis. I'm gonna try my best to stay alive because I'm really looking forward to hearing what the jury decides."

In the 49-page indictment, former manager Alan Stringer is accused of obstructing efforts by the U.S. Environmental Protection Agency to investigate the asbestos contamination beginning in 1999, when national reports first linked asbestos from the mine to the deaths and illnesses of nearby residents.

That year, the EPA declared the mine a Superfund site and has since spent more than $55 million on its cleanup.

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.

Stringer faces a maximum penalty of 70 years in prison, while Jack Wolter, former vice president and general manager of the mine's Construction Products Division, and Robert Bettacchi, a senior vice president, each face maximum prison terms of 55 years.

The company could face a fine of up to $280 million, twice the amount of mining profits earned during its years of operation.

Others named in the indictment are Henry Eschenbach, former health official for a Grace subsidiary; O. Mario Favorito, chief legal counsel for Grace; William McCraig, former general manager of operations; and Robert Walsh, former Grace vice president.

All seven defendants have pleaded not guilty to all charges.

Vermiculite from the Libby mine was frequently used as attic insulation and as an ingredient in fireproofing products, potting soils and fertilizers.

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