Judge Excludes Evidence Submitted in Grace Trial

By Beacon Staff

MISSOULA – The judge in the environmental crimes trial of W.R. Grace and Co. has excluded all but seven of the 53 exhibits that prosecutors recently submitted as evidence.

Columbia, Md.-based Grace and five of its former executives are charged with knowingly exposing Libby’s residents to asbestos, a substance linked to cancer.

The proposed exhibits submitted by the prosecution are mostly documents and memos written by and distributed to high-ranking Grace officials, including the former executives on trial.

The communications describe internal health studies performed on sickened Libby miners and warn that public knowledge of such studies could lead to expensive litigation, the Missoulian newspaper reported. They also advise against cooperating with an investigation by the U.S. Environmental Protection Agency.

But U.S. District Judge Donald Molloy said Thursday that most of the documents are problematic because they raise issues of cumulative evidence, risk of undue prejudice and a “confusion of issues” relating to the applicable laws. He also noted that the majority of the documents are more than two decades old and don’t relate to the Clean Air Act’s criminal statute, which wasn’t enacted until 1990. The judge said the evidence is more suited to a products liability claim than to the commission of a crime.

Assistant U.S. Attorney Kris McLean said last week the evidence proves Grace officials understood the hazards of asbestos-contaminated vermiculite, which was mined for decades in Libby and was shipped throughout the country. He said the exhibits address the government’s “knowing endangerment” theory and show that the defendants tried to keep their knowledge quiet to grow corporate profits.

Molloy again accused prosecutors of misleading jurors, saying that, while the proposed exhibits show knowledge of the potentially dangerous nature of Libby vermiculite, they do not demonstrate an agreement to defraud the government or to violate the Clean Air Act.

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