Appeals Court Upholds Pretrial Ruling in Libby Asbestos Case

By Beacon Staff

HELENA – U.S. District Judge Donald Molloy didn’t abuse his discretion when he required the government to produce a pretrial list of witnesses and evidentiary documents in its asbestos case against W.R. Grace & Co., a federal appeals court has ruled.

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

In March 2005, Molloy set a “discovery schedule” in the case that gave the government roughly six months to come up with a final list of its intended witnesses and trial exhibits.

The government met the deadline but noted that it would continue to investigate the case and “reserved the right to update its witness list and exhibit list through the close of all evidence at trial,” court records said.

Following concerns from the defense about the increasing size of the government’s witness list, Molloy entered another order in December 2005 that limited the government’s list to “those witnesses that have been disclosed as of the filing of this order.”

The government argued on appeal that the Missoula judge didn’t have the authority to require or enforce the pretrial list, and maintained that even if he did, the enforcement orders were an abuse of his discretion.

In July 2007, a three-judge panel of the 9th U.S. Circuit Court of Appeals sided with the government, saying the district court had exceeded its authority.

Grace then asked for a review by a larger panel of 9th Circuit judges. And in opinion issued Thursday, the larger panel upheld Molloy’s orders.

“We hold that the District Court did have the authority to issue and enforce its pretrial orders compelling the government to disclose its witness list and did not abuse its discretion in doing so,” the panel wrote.

A spokeswoman for the U.S. attorney’s office in Billings did not immediately respond to a request for comment Thursday afternoon. And a call seeking comment to Grace spokesman Greg Euston was not immediately returned.

A 2005 indictment charged Grace and several of its former managers with conspiring to conceal health risks posed by the Libby mine, closed since 1990.

More than 200 asbestos deaths have been confirmed in Libby, and a clinic in the community, the Center for Asbestos-Related Disease, is following about 2,000 additional asbestos cases.

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