REPORT of the Eternit HEARING 13.11.2024
Eternit Bis trial. Turin, maxi-court room ‘Giuseppe Casalbore’, November the 13th, 2024, 9 a.m.: the Assizes appeal trial begins against the Swiss entrepreneur Stephan Schmidheiny, called to answer, for the asbestos-related deaths of 392 people from Casale Monferrato. He is defended by lawyers Astolfo Di Amato and Guido Carlo Alleva.
An ‘endless story’, according to many.
A story of 'an extraordinary drama’, says PP Dr Sara Panelli, with her colleagues Drs Gianfranco Colace and Mariagiovanna Compare.
The Court is chaired by Dr Cristina Domaneschi, assisted by Dr Elisabetta Gallino and the six popular judges [citizens aged 30 to 65 on the electoral registry randomly selected from a list they have to apply for in their Municipality of residence- hereafter Jury Members] plus six alternate jurors.
SUMMARY
1 - Report of the President of the Court of Appeal: how the Court of Assizes motivated the sentence.
2 - Schmidheiny was aware of the serious risks of asbestos: the strategy of deception. The Neuss conference. Auls 76, the Disinformation Handbook.
3 - The diagnosis: immunohistochemistry, but not only.
4 - Five points which make it an extraordinary case: the number of people killed; Schmidheiny in the world elite of asbestos; the choice not to speak of the dangers of asbestos; the dignity of the victims; restorative justice.
5 - Restorative justice: what the defence says
6 - Next hearing.
1 - REPORT OF THE PRESIDENT OF THE ASSIZE COURT
Court Pr4esident Domaneschi, called all the parties and having seen that the defendant was absent, summarised the case, focusing on the central features of the Assizes Court verdict issued in June 2023 by the Novara Court of Assizes.
The court considered Schmidheiny's position as the effective head of Eternit: although he had no formal position in the company, several witnesses including by people with top positions in the company identified him as the person who made strategic choices and made decisions. He was the recognised head of [Italian] Eternit. That Court also deemed that, in spite of some remedial measures in the factory such as changing the manufacturing cycle from dry to wet, and the installation of dust capturing devices on certain machinery, the defendant did not adequately reduce exposure to dust, both inside and outside the work place.
With regard to the defendant's knowledge, the Novara judges, while affirming that Schmidheiny was definitely in possession of specific and in-depth scientific knowledge about the link between asbestos and mesothelioma, considered it reasonable that the defendant be convinced of the controlled use of asbestos, without stopping production; in other words, according to the Novara Court, Schmidheiny did not act with malice (wilfulness), but was guilty, due to negligence, imprudence, and inexperience considering the rules and regulations of the time.
The sentence was appealed by both the prosecution and the defence: the former alleging wilful misconduct, the latter insisting on acquittal.
At the end of the report, the speeches of the three prosecutors began: Dr Panelli and Dr Colace of the Turin Public Prosecution and Dr Mariagiovanna Compare of the Vercelli Public Prosecution (the latter seconded for this case).
2 - SCHMIDHEINY AWARE OF THE SERIOUS RISKS OF ASBESTOS
‘Read what the Neuss Conference was all about’. PP Dr Gianfranco Colace addressed the Court and Jury urging them to carefully read the proceedings of that event that he sees as key to the trial to understand how much, how and since when the defendant had been aware of the serious risks of asbestos.
Neuss (German municipality in the northern Rhineland where Dr Robock, a scientist working for Schmidheiny, had a scientific laboratory. The Neuss document illustrates the core of the defendant’s strategy of deception against the workers and the community. Indeed, during the Neuss Meeting, Schmidheiny ‘made a true confession’, said PP Dr Colace: in three days, between 28th and 30th June 1976, the entrepreneur explained what asbestos caused to the 35 top managers of the Eternit group, whom he had summoned. ‘A true confession,’ the prosecutor insisted. Schmidheiny said to his closest collaborators: ‘I know. I know everything’. What did he know? Colace claims that the defendant was well aware of the results of scientific and epidemiological studies that had proved the deadly danger of asbestos. He was well aware of this, according to the reconstruction set out by both PPs Dr Colace and Dr Panelli, also because the Schmidheiny family was part of the worldwide ‘cartel’ of asbestos producers.
After the first conference in Neuss, a second meeting followed in December, when ‘Auls 76’, the first handbook on how to react and what to say to journalists and others) containing ‘the Eternit group's policy and strategy to conceal the danger of asbestos’ was launched. In fact, ‘the 35 managers were “shocked” (verbatim term from the minutes of the conference) and Schmidheiny told them that the workers should not be informed lest they too be shocked. Auls, Colace insisted, dictated the behaviour and responses that must be given so that ‘the existence of our industry is not jeopardised. We must react decisively and fight with all our means'. To those who ask about the risks of asbestos, reassuring explanations must be given: ‘Asbestos as such is not dangerous. There is no danger to (workers') families as long as there is no test to show it. The existence of danger for those living near the plant can be absolutely excluded'. These phrases are contained in Auls76, which Colace calls a ‘manual of disinformation’.
So, according to the prosecutor, ‘we cannot treat Schmidheiny as a normal employer whom we reproach for being negligent! He had more knowledge than anyone. He knew'.
3 - THE CERTAINTY OF DIAGNOSIS
Is the diagnosis of mesothelioma only certain if supported by the most up-to-date markers of immunohistochemistry? So argues the defence.
The public prosecutor's office rejected this approach, with the support, stresses Public Prosecutor Dr Mariagiovanna Compare, ‘of our consultants whose high level of authority is established and widely recognised’. As she had already done in the Court of Assizes, the public prosecutor reiterates it now in the appeal: there is no doubt that immunohistochemistry is essential to ascertain mesothelioma, and there is no doubt about the validity of the current markers, but, diagnosis is made taking into account other types of tests and investigations, and above all the overall assessment of the clinical picture.
The prosecutor stated that the defence's objections should thus be rejected and reiterated the validity of all 392 diagnoses. Not only that; Dr Compare emphasised that even the less current diagnoses were carried out as scrupulously as possible by the doctors who treated the patients because the overriding interest of every diagnosis is precisely to identify the definite cause of the illness and to apply the most suitable therapies; it would be truly strange if the diagnosis held to be true and certain to treat patients were not considered correct in court.
4 - FIVE POINTS OF EXTRAORDINARINESS
A story of ‘an extraordinary drama’, as Dr Sara Panelli called it, is by definition ‘extraordinary’.
She summarised five points which made it stand out.
The number of deaths. 'There are staggering numbers in this trial: 392 deaths bearing the signature of asbestos! These people developed a malignant cancer called mesothelioma. ‘It is a very rare tumour; according to numerous epidemiological studies,’ Panelli explained, ‘the number of new cases per year, nationally, should be 60; in reality, the National Mesothelioma Registry reports 1600’. But it is Casale, with a population below 40,000, that is frightening: ‘According to estimates, we should expect 1 new case per year; therefore, in the 30 years between 1990 and 2019, 60 new cases should have been recorded. But instead? It was 661 [and over 3-fold in the district], and that is only taking certain diagnoses into account'. This means that ‘we have over 600 cases that should not have occurred’. Dr Panelli stops to catch her breath and adds with a sigh: ‘But they are dead, eh! They are people,' he punctuates, ’who should not have died! If there had not been asbestos pollution inside the factory and in the surrounding environment, those people would not have died!'
The exceptional the business position. ‘The Schmidheiny family,’ said the prosecutor, showing explanatory slides, ‘was in the elite of the “asbestos kings”. There was Johns-Manville in the United States, Turner-Newall in Great Britain (the ‘Ferodo’ brand of car brakes is one of theirs) and, in continental Europe, the Emsens and Schmidheiny families dominated. ‘The industrialists of the asbestos elite met, decided prices, policies, international strategies to manage and control the world market. They were fully informed about the outcomes of scientific studies'.
An example: Pathologist Dr Chris Wagner, from Johannesburg, had detected 33 cases of mesothelioma, both among workers in an asbestos mine in South Africa and among those living in nearby houses. Double exposure: occupational and environmental. Did the Schmidheinys know this? Why, they had bought the mines in South Africa from the British. And when was Wagner's study released? Presented in 1959 in Johannesburg and published in 1961. What was the conclusion of that study? ‘Wagner,’ Panelli explained, ‘said that there was no safe way to extract asbestos and process it. There isn't. And the asbestos kings know this, they have the first-hand scientific information!'.
Silence on the danger of asbestos. Faced with the known and proven danger (in addition to Wagner's study, Panelli cites others: Doll's, whom Turner & Newall failed to silence, and the arguments of the scientist Dr Selikoff at the famous 1964 New York Conference), ‘they chose to remain silent: neither the workers nor the people living around the plant were informed’. Obviously, if it had been known that people were dying of asbestos – dy-ing - the company would have closed down. ‘If I had known that people were dying of asbestos, like hell I would have continued working there!' a former worker testified at the first large trial.
So what? There is silence, because ‘knowledge would have brought the asbestos market to a halt’. Something, however, leaks out, articles, conferences. So what? The message is passed on that asbestos can be used safely. ‘The work carried out in the factory plants’ said Panelli, ‘are what the internal documents defined as ‘small improvements’, that is, ‘some concessions to the unions’ to ‘not wake the sleeping dogs’, which, however,' says Panelli, “have no effectiveness, and the disproportionate number of deaths at Casale proves it”.
Extraordinary dignity of the Casale victims. There is an unexpected attendance, in the court room. It is 11.35 a.m. and Dr Panelli falls silent, looks up and, in a way, gives the floor to the witness: On the screens, placed in three locations, Romana Blasotti Pavesi, the historical president of Afeva (Association of families and victims of asbestos in Casale) looms. She died last September; she was 95 years old on March the 13th 2024. Yet there she is, very much present, her wrinkles deep, her booming voice, her words inflexible in a recording that belies nothing: ‘It is right to work, it is important and necessary, but you cannot die for work’. In the video she shakes her head and her blue eyes are sad: ‘You cannot die from work,’ she repeats. Her voice continues to shake, her face, clear and firm, does not let go.
‘All the witnesses,’ the prosecutor recalls, ‘were limpid, punctual, composed, imbued with sadness and suffering’ [Romana lost many members of her family]. The defence argues, in its grounds for appeal (as it had also stressed in its arguments), that those testimonies are not entirely reliable because memory at a distance of time does not preserve intact images. ‘That is not true,’ Panelli replies, ‘the loss of a loved one makes the memory everlasting’.
Finally: ‘Restorative justice’. That is: ‘An extraordinary opportunity for Schmidheiny as a man, the philanthropist he wants to be’.
It is the first time, in the long, detailed endless history of the Eternit trials, that ‘restorative justice’ enters the courtroom.
The suggestion comes from Prosecutor Dr Sara Panelli, the magistrate who, with her colleagues Gianfranco Colace and, at the time, PP Dr Raffaele Guariniello, conducted the monumental 2005 investigations for the first Eternit trial for wilful disaster.
Sara Panelli is now the prosecutor supporting the prosecution in the Eternit Bis appeal trial at the Court of Assizes, and, at her side, she has her colleague, Dr Gianfranco Colace (and, in addition, today, Dr Mariagiovanna Compare).
They know all the ins and outs of this judicial story, they have read, studied and written thousands of pages, they have consulted first-rate expert witnesses to have complex scientific studies explained to them, they have listened to hundreds of witnesses - the families of the victims and the patients themselves - and they have met the anguished eyes behind those voices. They believe there is an extensive evidentiary record ('More than incomplete material! In this trial, there is far too much material') to support the accusation against the defendant. Dr Panelli introduces a new theme, restorative justice, which, she emphasises several times as it has no bearing on the criminal sphere. It is a thing in itself. It is a choice that speaks to public spirit, a choice of maturity, a quest for reconciliation with a wounded community.
For a few minutes, the Court, maxi-Courtroom 1, suspends its role and echoes this proposal: a new way to resolve a conflict, to re-establish a human relationship with the victims and the community which has long been broken. ‘It is an additional path to the one we exercise in this trial, ‘she explains’ and it does not require any admission of responsibility. What happens is in the hands of the parties who identify an impartial mediator and agree on the time, place and manner of action'. ‘It is not up to us,’ she concludes, ‘to establish how and when to evaluate this possibility, no, but it is up to us to propose it. It is an extraordinary opportunity to follow a additional [supplementary, complementary] path'.
5 - RESTORATIVE JUSTICE: WHAT THE DEFENCE THINK ABOUT IT
The defence lawyers, asked after the hearing on Wednesday 13 November, agreed to give their opinion on ‘restorative justice’.
Lawyer Alleva. ‘With respect to this trial, I am unable to give a specific answer and I cannot/will not do so precisely out of respect for the proceedings themselves. From a general point of view, however, I have always been a great supporter of ‘restorative justice’; in terms of legal approach and from a cultural, intellectual point of view, I think it is a very important path that I hope will be used by our society, by our legal system and become part of our way of conceiving justice. The subject has now come up in this trial, I hope it can be food for thought.
Lawyer Di Amato: ‘Restorative justice has great potential, the implementation of which depends on the quality of the people called upon to administer it. Mediators in particular should have a psychological ability to get in touch with the parties, which would require appropriate training courses of which currently lack.
6 - NEXT HEARINGS
The Eternit Bis appeal trial in the Court of Appeal of Assizes resumes in Turin, in Courtroom Giuseppe Casalbore, at 10 a.m. on Wednesday November the 20th 2024. The second hearing is expected to continue until 4.30 p.m. or a little later. The Prosecution will conclude will be completed and some of the plaintiff's lawyers may commence.
Following hearings: November 27th ; December 4th, 11th and 18th , 2024.
https://www.silmos.it/eternit-bis-storia-umana-di-una-drammaticita-fuori-dal
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