9th Circuit rules against asbestos poisoning defendant W.R. Grace

September 24, 2007

By KATIE OYAN Associated Press Writer
© 2007 The Associated Press

HELENA, Mont. — A federal appeals court has reversed a number of pretrial rulings in the government’s asbestos case against W.R. Grace & Co.

[Click here for the complete text of the ruling.]

The three-judge panel of the 9th U.S. Circuit Court of Appeals on Thursday overturned a lower court’s ruling that federal prosecutors could not allege the company and former top officials conspired to “knowingly endanger” miners and residents of the town of Libby by exposing them to asbestos.

U.S. District Judge Donald Molloy in Missoula had ruled the time allotted under federal law for the government to pursue that allegation had expired. He said the government failed to allege the defendants committed an overt act to knowingly endanger others within the five-year statute of limitations that began in 1999.

In its decision, the panel disagreed, saying the lower court incorrectly interpreted the federal statute.

“The district court dismissed the knowing endangerment object in the original indictment as ‘time-barred’ because it failed to allege an overt act within the statue of limitations, not because the indictment was untimely filed,” the three-judge panel wrote. “The district court erred.”

Bill Mercer, the U.S. attorney for Montana, praised the reversal and others issued Thursday.

“In reversing several pretrial rulings by Judge Molloy, today’s decision by the 9th Circuit is an important victory for the United States,” Mercer said in a statement.

Calls seeking comment from a Grace attorney in Missoula and from Helena lawyer Ron Waterman, representing defendant Harry Eschenbach, were not returned.

The case involves public exposure to asbestos in the Libby area, where Grace used to operate a mine.

A 2005 indictment charged Grace and seven of its former managers, one of whom died in February, with conspiring to conceal health risks posed years ago by the company’s Libby vermiculite mine, closed since 1990. Hundreds of people in Libby have fallen sick, some fatally, from exposure to asbestos in vermiculite.

On Thursday, the appeals court panel also reversed a decision by Molloy regarding the definition of asbestos.

According to the panel’s written opinion, Molloy interpreted asbestos to mean the six minerals covered by the U.S. Environmental Protection Agency’s “civil regulatory scheme,” and excluded evidence of asbestos releases of other asbestiform minerals.

“This ruling eliminated from trial evidence of releases of 95 percent of the contaminants in the Libby vermiculite _ which are asbestiform minerals but fall outside of the six minerals in the civil regulatory definition,” the panel wrote.

The panel ruled Molloy improperly limited the term, saying asbestos need not include “mineral-by-mineral classifications to provide notice of its hazardous nature, particularly to these knowledgeable defendants.”

The panel also overturned Molloy’s decision allowing Grace to use an affirmative defense established by the Clean Air Act for air pollutants released under “National Emissions Standards for Hazardous Air Pollutants.”

The government argued that no such standards applied to Grace’s operations in Libby so compliance was impossible. The lower court rejected that argument, finding that a standard of “no visible emissions” for asbestos applied to Grace’s Libby operations.

The panel disagreed.

“The plain language of the statute makes clear that the affirmative defense simply doesn’t apply in this case,” the panel wrote. “The district court’s order to the contrary leaves us with a ‘definite and firm conviction’ that it got the law wrong.”

Thursday’s rulings were among two appeals stemming from pretrial decisions. In July, a 9th Circuit panel reversed a ruling by Molloy that required federal prosecutors to produce a pretrial list of non-expert witnesses. The panel said the district court had “exceeded its authority.”

The trial had been tentatively scheduled for September but that has since been postponed. A new trial date has not been set, Mercer said.

“The grand jury indicted this case in 2005,” Mercer said. “With the resolution of both appeals brought by the government, we look forward to trial.”

Activist Gayla Benefield of Libby called Thursday’s rulings “probably the biggest step forward” in the case for people sickened by asbestos from the mine.

“They ruled about 95 percent in our favor,” she said. “That absolutely is fantastic. That’s more than we could have hoped for _ way more.”

Benefield said both of her parents died of asbestos-related illnesses and many other family members and friends are sick. They deserve closure and accountability, she said.

“Now we have a fighting chance,” she said. “Now we’re on an even ground.”

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Malignant pleural mesothelioma caused by environmental exposure to asbestos or erionite in rural Turkey: CT findings in 84 patients

August 1, 2007

1: AJR Am J Roentgenol. 1993 Sep;161(3):533-7. Sahin AA, Cöplü L, Selçuk ZT, Eryilmaz M, Emri S, Akhan O, Bariş YI, Department of Chest Diseases, Hacettepe University, School of Medicine, Ankara, Turkey.

Abstract from PubMed

Malignant pleural mesothelioma in rural Turkey frequently results from environmental exposure to tremolite asbestos or fibrous zeolite (erionite). The aim of this study was to determine the CT features of malignant pleural mesothelioma in patients exposed to asbestos or erionite.

The CT scans of 84 patients with malignant pleural mesothelioma were retrospectively evaluated. Twenty patients had been exposed to erionite and 64 patients had been exposed to asbestos. The CT scans were interpreted by seven observers who did not know the clinical or pathologic findings.

CT scans showed either unilateral pleural thickening or pleural nodules/masses in all patients. Pleural nodules were present in 25 patients and pleural masses in 44 patients. Pleural effusion was found in 61 patients, mediastinal pleural involvement in 78, pleural calcifications in 52, involvement of the interlobar fissures in 64, and volume contraction in 61. Reduced size of the hemithorax was significantly correlated with chest wall involvement.

On the basis of CT findings, the preassigned staging was changed in 21 patients (25%), including 44% of the patients with disease that had been classified as stage I. CT findings were not significantly different between the patients exposed to erionite and those exposed to asbestos.

CONCLUSION. The most common CT findings in cases of malignant pleural mesothelioma were unilateral pleural thickening or pleural nodules/masses with or without effusion. CT provided valuable information on the extent of the disease, which was important for staging. Although the CT features are not pathognomonic, they provide valuable clues to the diagnosis in patients who have been exposed to mineral fibers.

Medical and legal options for mesothelioma provided by The Law Office of Roger G. Worthington, P.C. | 273 W. 7th | San Pedro | CA | 90731, www.mesothel.com