Judge postpones Grace trial until 2007

By LYNNETTE HINTZE

The Daily Inter Lake

The government's high-profile conspiracy case against W.R. Grace & Co. has been postponed until early next year while appeals from the prosecution work their way through the 9th U.S. Circuit Court of Appeals.

U.S. District Judge Donald Molloy of Missoula earlier this week granted the government's request to delay the Sept. 11 trial.

Prosecutors called their request to delay the trial a "last resort" to get some measure of justice for asbestos victims by appealing Molloy's dismissal of key issues in its case against the chemical manufacturer and seven of its former executives.

A federal indictment unsealed in February 2005 accused Grace and its officials of conspiring to conceal the health hazards associated with exposure to asbestos dust at the company's former Libby vermiculite mine. Asbestos exposure linked to the mine is blamed for widespread sickness and more than 200 deaths in the Libby area.

At issue are three rulings by Molloy that prosecutors maintain "changed the legal and evidentiary landscape of trial" and hamper the prosecutors' criminal case, the government's trial brief stated.

Last month the judge dismissed part of the conspiracy count against Grace, ruling that the statute of limitations to allege "knowing endangerment" had expired. Prosecutors are also challenging rulings that essentially bar prosecutors from using "critical evidence," including asbestos samples and test results.

Now it's up to the 9th Circuit - the largest of the 13 federal circuits - to decide whether those rulings can be reversed.

Prosecutors must file their appeal brief by Nov. 23, and Grace has a Dec. 23 deadline to respond. The government, in turn, will issue a reply in early January before the 9th Circuit rules on the appeal.

Asbestos victims advocate Gayla Benefield of Libby said she hates to see the trial delayed, but understands it gives the government "a better option" to present a full case.

"It's a good thing," she said about the appeal. "The community exposure element is very important, and the end result is living right here - living, working and dying."

The original conspiracy count against Grace claimed the company violated the federal Clean Air Act by releasing toxic asbestos into the air knowing it was a health hazard, and that the company defrauded the government by obstructing the Environmental Protection Agency's probe of the contamination.

In other Grace matters, Molloy denied defendant William McCaig's request for a trial postponement because he underwent triple-bypass heart surgery July 17.

The judge said he would not grant the request absent an "acute health-related event," and because the trial no longer is scheduled to start Sept. 11.

McCaig, of Simpsonville, S.C., used to be general manager of the Libby mine.

The Associated Press contributed to this report.