UPDATE ON GLOBAL “ASBESTOS JUSTICE” 2012
Laurie Kazan-Allen
Presented at: Asbestos Legal Conference
Nevada, U.S, May 15, 2012
In the last year, there has been a huge shift in the judicial fortunes of one former asbestos
Goliath. It was not Johns-Manville, Turner and Newall or Cape Asbestos, asbestos titans ofyesteryear; the price these companies have paid for the negligent and immoral use of asbestos
is well known. One of their number, however, an industrial group which was “probably thelargest manufacturer of asbestos cement in the world,” 1 had long escaped the fate shared byits collaborators. The name of the last man standing was Eternit. Through long-term planning,
expert public relations, phenomenal contacts and good luck, the Eternit Group of companies
had remained virtually unscathed and unknown outside the localities where its asbestos
factories operated. Not any more. A verdict handed down on February 13, 2012 changed allthat. But one judgment, no matter how iconic, does not make a trend. To gain a fuller
appreciation of the significance of the landmark decision of the Turin Court, thisdevelopment is best seen in a global context. This paper will examine actions taken against
Eternit companies in key jurisdictions over the last twelve months with a particular focus on
the case spearheaded by Prosecutor Raffaele Guariniello on behalf of thousands of Italians
killed by exposure to Eternit asbestos.
What Was Eternit?
Eternit has been the name of dozens of manufacturing companies and scores of building
products; a dominant multinational industrial group, two global asbestos conglomerates, abrand, a patent and a generic term: in many markets the word “Eternit” was used to denote a
range of asbestos-cement building products regardless of the trade mark, just like Kleenex isused interchangeably for the word tissue and hoover for all makes of vacuum cleaner. To
simplify matters and for the purposes of this paper we will concentrate on two Eternit
conglomerates: Eternit Switzerland and Eternit Belgium. By the mid-1980s,••

the Swiss Eternit Group, which had been part-owned by the Schmidheiny family since1920, controlled the parent company in Switzerland as well as German Eternit, SouthAfrica’s Everite, four factories in Italy, affiliates in Saudi Arabia, Costa Rica,Guatemala, El Salvador and Honduras and interests and businesses in a number ofother Latin American countries including Brazil, Bolivia, Columbia and Nicaragua.
The annual turnover of the Swiss Eternit Group in the mid-1980s was two billion
Swiss francs.
the Belgian Eternit Group, owned by the Emsens family, controlled Eternit entities inBelgium, Holland, Great Britain and France and had interests in Zaire, Burundi,Angola, Nigeria, Argentina, Peru, Uruguay, Chile, Paraguay and the Philippines.

There were incestuous and overlapping interests and relationships across the spectrum ofEternit companies. There was also a shared philosophy which prioritized corporate profits
over everything else; in the climate which existed, hazardous asbestos exposures became aroutine occurrence. Typical examples of the dangers to which Eternit workers and local
people were exposed by the company’s negligence are the following:
1

Evidence given by Eternit Building Products Limited to the (British) Advisory Committee on Asbestos, 1976.

••••

In Japan, Eternit “made workers take their work clothes back to their houses...”Knowledge the company had about asbestos diseases amongst the workforce wasclosely guarded with victims and their families being kept in the dark about the resultsof medical check-ups.
Despite the fact that cases of asbestosis were diagnosed amongst Eternit workers in
the Netherlands in 1956, 1972, 1975, 1981 and 1982, the company did not disclose
this information to the authorities nor did it compensate the injured.
When the Italian Eternit company declared bankruptcy in 1986, the factory in Casale
Monferrato was shut and sacks of raw asbestos and contaminated debris were left inplace; Eternit never paid a penny to decontaminate the redundant buildings,dumpsites, soil or river it had polluted.
As late as 1995, bags of raw asbestos were still being opened with a knife andmanually emptied into a mixer at the Eternit plant in Thiant, France.

If there were any doubt about the culpability of Eternit’s executives, a document obtained
and translated from the original French by the International Ban Asbestos Secretariat (IBAS)
establishes Eternit’s awareness of the asbestos hazard over 80 years ago. The letter, sent in1950 from Eternit Belgium to Eternit Switzerland, was categorical:“You will remember that we ourselves have already drawn your attention to asbestosis,
through our letter of 15 May 1931. In 1933 we received the report of Dr. E.R.A.
Merewether, which was discussed at the seventh sitting of the Correspondence Committee
for Industrial health of the International Labour Office, and since then we have been
continually occupied with precautionary measures, of which we have already for many
years been aware…” 2It appears that this letter was one of a series about the dangers of asbestos. One month earlier(March 13, 1950) the Secretary of the international cartel of asbestos-cement stakeholders
had written to N.V Eternit in Amsterdam referring to previous correspondence from Hollandon the subject of asbestosis and confirming the cartel’s plans to instigate an enquiry amongst
its members regarding their experience with asbestosis. 3 These documents are however justthe tip of the iceberg. Through its worldwide connections, which were second to none, andthe participation of Eternit personnel in international meetings and industry discussions, there
is no doubt that information on the asbestos hazard was available to the Eternit management. 4
Point of Interest
During the July 1986 Congressional hearings regarding the EPA’s Asbestos Ban And
Phase-out Legislation, Etienne van der Rest (born 1925), Chairman of Eternit Belgium, aboard member of many Eternit companies, and Chair of the Governing Council of theAsbestos International Association warned of the detriment to people in the developing world
2Bob Ruers, ‘Eternit and the SAIAC Cartel’, in Eternit and the Great Asbestos Trial, ed. by D. Allen and L.
Kazan-Allen (London: IBAS, 2012) pp. 15-20.
http://ibasecretariat.org/eternit-great-asbestos-trial-toc.htm
3
See Appendix A, English translation of letter written in French to N. V. Eternit by SAIAC, international cartelof asbestos-cement stakeholders.
4Barry Castleman, ‘The Criminal Trial of Stephan Schmidheiny in Turin, Italy’, in Eternit and the Great
Asbestos Trial, ed. by D. Allen and L. Kazan-Allen (London: IBAS, 2012) pp. 53-56.
Also see: http://asbestosinthedock.ning.com/profiles/blogs/field-report-day-29-experts-1

should asbestos be banned: “the asbestos-cement pipe is,” he said “the perfect answer” to theendemic lack of water and housing. 5 Like other asbestos vested interests who testified at thehearings, Van der Rest alleged that the U.S. asbestos ban could not be justified either
medically or scientifically. Van der Rest paid a high price for his loyalty to the asbestos
cause; he died of mesothelioma.
Eternit’s “Annus Horribilis”
On November 24, 1992, Queen Elizabeth II made a speech commemorating her
40thanniversary as Monarch in which she said: “1992 is not a year on which I shall look backwith undiluted pleasure. In the words of one of my more sympathetic correspondents, it has
turned out to be an ‘Annus Horribilis’.” 6 For Eternit executives and shareholders, theirhorrible year began in the Summer of 2011. A brief round-up of what took place during thefollowing months is informative.
Eternit’s “Annus Horribilis”
DateCountry

Issue

August 26, 2011

BrazilNovember 28, 2011

Belgium

January 10, 2012

FranceFebruary 13, 2012

Italy

February 2012

Switzerland

March 15, 2012

HollandMarch 29, 2012

Spain

Proceedings begun for environmental contamination
caused by Eternit’s operations at the Poções asbestosmine.
First successful case against Eternit, Belgium forenvironmental asbestos exposure. 7
Judge Marie-Odile Bertella-Geffroy initiated an enquiry
into the actions of key personnel in the French asbestos
trade association, a body closely linked to Eternit andother asbestos stakeholders. 8
Eternit executives sentenced to 16 years in prison by
Turin Court for causing wilful permanent environmental
disaster and failing to comply with safety rules.
Test case announced for environmental victim exposed
to asbestos pollution created by Eternit plant. 9
PhD dissertation defense by lawyer Bob Ruers of“Power and Countervailing Power in Dutch AsbestosRegulations;” 10 a document which details Eternit’s rolein Holland’s asbestos epidemic.
23 former workers from Uralita, an Eternit subsidiary,awarded €1.7 million ($2.3m) by a Madrid Court. 115

Extract of Etienne van der Rest 1986 testimony.
http://www.ibasecretariat.org/epa-file-f1-020e-p72-82.pdf
6
http://www.youtube.com/watch?v=dHlEzh5ky1A [0-19 second.]
7
Yvonne Waterman, ‘Belgian Family Wins Historic Court Case Against Eternit’, in Eternit and the Great
Asbestos Trial, ed. by D. Allen and L. Kazan-Allen (London: IBAS, 2012) pp. 81-85.
8
http://www.lepoint.fr/societe/les-lobbyistes-de-l-amiante-mis-en-examen-10-01-2012-1417114_23.php
9
Big compensation thanks to your trial. La Stampa. February 14, 2012.
http://www.scribd.com/doc/81558986/La-stampa-14-02-2012
10
The Dutch title of Dr. Ruers’ thesis is: “Macht en tegenmacht in de Nederlandse asbestregulering.”
Email April 15, 2012 from Bob Ruers.
11
http://ccaa.elpais.com/ccaa/2012/02/29/madrid/1330521370_064387.html

April 3, 2012

HollandApril 6, 2012

Italy

April 16, 2012Italy

Court of Appeal verdict for carpenter exposed to Eternit
asbestos products between 1956 and 1967; Eternit had
knowledge of the asbestos hazard and should haveprotected users. 12
Case brought against Eternit, with Stephan Schmidheiny named as a defendant, for occupational andenvironmental asbestos exposure caused by operations
at the Balangero chrysotile mine. 13
Opening of court proceedings in Voghera of lawsuit
against Fibronit, an Eternit collaborator, for occupational and environmental mesothelioma deaths inBroni. 14

The Great Asbestos Trial
Amongst the many adverse developments to impact on Eternit over recent months was thejudgment handed down in “The Great Asbestos Trial,” the largest and most complex asbestos
case ever heard in a European criminal court. 15 The legal proceedings in Turin were “great”
in all senses of the word, in the: number of aggrieved parties (~3,000), legal representatives(~150), municipalities, issues and worksites involved; two-year duration of the trial;
fundamental legal concepts explored; decade of painstaking and meticulous research required
to bring the defendants to court; expectations of the bereaved that the verdict would recognize
the cataclysmic nature of the crimes committed. Because of the extraordinary nature of thiscase and the total lack of literature on Eternit in the English language, it was decided that
IBAS would produce a monograph entitled: Eternit and the Great Asbestos Trial. This text
was officially published on February 13, 2012 to coincide with the handing down of the courtverdict.
The defendants in this trial were former executives from the Swiss and Belgian Eternit
Groups, enterprises which exerted control over operations at Italian asbestos-cementfactories. Industrialists Stephan Schmidheiny (Switzerland) and Baron Louis de Cartier deMarchienne (Belgium) were accused of causing permanent environmental disaster and failingto comply with safety rules. That this lawsuit achieved an iconic status both in Italy andabroad was a reflection of the universal principles considered. Was there, indeed, a humanright to life, one which takes precedence over shortcuts that speed up manufacturing output
and minimize production costs? Could individuals be held liable for the effects ofcommercial operations that endanger life and pollute the environment?
Understanding the Italian legal system posed something of a challenge for international
observers. Explaining the basis of the Italian system, Sergio Bonetto, a lawyer representing a
number of plaintiffs in the trial, wrote:

12

Email received from Bob Ruers, April 14, 2012.
Evidence collected shows that for many years Eternit owned 50% of the mine.
Amiantifera nuova Eternit. [The asbestos quarry is the new Eternit.] La Stampa. April 6, 2012
http://www3.lastampa.it/torino/sezioni/cronaca/articolo/lstp/449253/
14
Eternit dietro la strage Broni? [Is Eternit behind the Broni massacre?] Il Monferrato. April 13, 2012.
15
Romana Blasotti et al. ‘Asbestos Activism in Casale Monferrato’, in Eternit and the Great Asbestos Trial, ed.
by D. Allen and L. Kazan-Allen (London: IBAS, 2012) pp. 35-38.
13

“Above all it should be specified, especially for readers familiar with legal systems in
English-speaking countries, that the Italian system, like most systems of Roman andNapoleonic origin, is based on the compulsoriness of engaging in criminal proceedings.
That is, through the penal code or specific laws, the state defines all conduct it considers
criminal and sets minimum and maximum sentences. If such conduct has occurred (and thejudicial authorities are made aware of it in any way), then a criminal investigation must beconducted. The institution qualified to conduct such investigations is the Public
Prosecutors office.” 16
Personally speaking, I found several concepts difficult to grasp:••••“The penal code can only be applied to physical persons. No legal entity(organization, company, institution, association or party) can be charged with a crimeor sentenced. A company cannot be indicted or sentenced for murder or pollution of
the environment; only the person running the company at the time the crime wascommitted can be so indicted or sentenced.”
A defendant can effectively buy his way to freedom or a much-reduced sentence by
coming to a private arrangement with an injured party.
The criminal proceedings can incorporate a civil lawsuit.
The court hearings took place on Mondays from 9 a.m. till 2 p.m; towards the end of
the trial, the court sat twice a week.

The Verdict
On February 13, 2012, the defendants were found guilty for their part in the humanitariancatastrophe caused by Eternit’s asbestos operations in Casale Monferrato (Alessandria),Cavagnolo (Turin), Rubiera (Reggio Emilia), Bagnoli (Naples) and Siracusa (Sicily). For
their crimes, Schmidheiny and Marchienne were sentenced to 16 years in prison and ordered
to pay compensation estimated at more than €95 million ($124.5m).
In court to hear the long-awaited judgment were 1,500+ people from Casale Monferrato,
the town at the centre of Eternit’s Italian operations. Twenty-three coachloads of asbestos
victims, family members and community activists had set off before dawn from Casale towitness the resolution of this historic case. They were joined in the court by hundreds ofrepresentatives of asbestos victims’ groups from France, Belgium, Switzerland, the UK,
Brazil and the US. In recognition of the enormous international interest in this case, for the
first time ever the provision of simultaneous translation into English and French wassanctioned by the authorities; these translations were streamed live over the internet.
The proceedings began at 9:30 a.m. when the Judges entered courtroom 1. The initial
minutes were taken up by procedural aspects and then it was announced that the reading of
the verdict would start at 1:15 p.m. Within seconds of the afternoon session beginning, thewait was over. As we heard the English translator pronounce the words “In the name of theItalian people, the Turin criminal court declares the defendants Schmidheiny and De Cartierguilty,” we knew that the victims’ 30-year campaign for justice had succeeded. Commenting
on the outcome, the Associazione Famigliari Vittime Amianto (Association of Asbestos
Victims’ Families) said:

16Ibid. page 49.

“[we] believe this judgment is a turning point in history as Justice is awarded to thousandsof workers and members of the community who were killed, slaughtered, especially in
Casale Monferrato and Cavagnolo, where the Italian Eternit plants were.”
Turin Public Prosecutor Raffaele Guariniello, who pioneered this landmark case, told
journalists surrounding him in the aftermath of the verdict: “Today we have the right todream that justice can be done and must be done.” Guariniello has already started work on
Eternit 2, a case involving hundreds of Italians who have died since 2009 from asbestosrelated diseases.
Defendant Stephan Schmidheiny’s legal team issued a statement within hours of thejudgment being handed down: “This verdict is totally incomprehensible for Stephan
Schmidheiny’s lawyers, which is why they plan to appeal to the next higher authority.”
Schmidheiny lawyer Astolfo Di Amato told journalists: “The sentence is dangerous because
if in Italy we affirm the principle that the major shareholders of a multinational company isresponsible for what happens in each peripheral plant, no one can invest in Italy any longer.”With modern technology the news spread worldwide in minutes. Coverage in Italy was
massive and national newspapers ran front pages stories about the verdict with TV reports on
many channels. In Canada, speculation was rife about the implications of this trail forasbestos propagandists and executives in Quebec. In France, attempts to replicate the Turinprocess are being made but success has yet to be achieved, while in Brazil, another country
which has experienced massive damage at the hands of Eternit, prosecutors regard the 128page Italian verdict as a precedent to be used in Brazilian asbestos lawsuits. February 13,
2012 was a great day for the people of Casale Monferrato and other Italian towns where
people’s lives counted for nothing in Eternit’s pursuit for profits. It was a day which gives us
hope that in every jurisdiction around the world asbestos profiteers can be held to account forthe damage they have done.

Appendix AToN.V. ETERNIT
20-22 Nieuwe Doelenstraat
Amsterdam
HollandeDate: March 13, 1950

Dear Sirs:
Re: Silicosis/asbestosis

We have the privilege/honor of returning to your letter of February 14, 1950, the content of
which has had our full attention.
Unfortunately, we are not in a position to make detailed information available to you on thesubject of asbestosis; however, we do intend to write to all our members on the subject, andin doing so will request that they transmit to us what they know on the subject of this disease.
Please find enclosed our outline for a circular; we would be very grateful to you if you would
examine it and let us know if you think its content has been conceived/designed with
sufficient precision and detail.
As soon as we receive your reply, we shall send our circular to all our members without fail,and at that time we will make every effort to bring together the greatest amount of
information possible, so as to provide you with written material capable of performing thedesired service.
We look forward to your reply.
Yours faithfully,
SAIAC S.A.
The Secretary

Enclosed:
1 outline for a circular