Last week, W.R. Grace & Company won an appeal it had asked for last year, concerning a ruling made by U.S. District Judge Donald Molloy. Another appeal the company has asked for concerns regulations governing the types of minerals with which the company’s Libby, Montana vermiculite mine was contaminated.

The appeal last week was concerned with U.S. District Judge Donald Molloy’s request for a pretrial list of witnesses and evidentiary documents from the government. The request was made in connection to the government’s asbestos case against W.R. Grace & Co.

W.R. Grace & Co. was indicted in 2005 on charges of conspiring to conceal the health risks of the Libby mine and its asbestos-contaminated vermiculite for residents of the town. In March 2005, Judge Molloy set a discovery schedule for the case, giving the government approximately six months to create a final list of the witnesses and exhibits it planned to use in the trial.

However, the government continued expanding on its witness and document list well after the six month limit. In response Judge Molloy ordered in December 2005 that the government cease adding new witnesses. The government appealed, saying that Molloy’s ordered were an abuse of his discretion.

In July 2007, a panel of three 9th US Circuit Court of Appeals judges agreed, and said that the district court had stepped outside the bounds of its authority. However, W.R. Grace & Co. asked for a review by a larger panel of judges. The new panel issued their opinion last week, and upheld the orders issued by Judge Molloy.

At the same time, W.R. Grace & Co. has been appealing for another reason.

The company’s attorneys are arguing that winchite and richterite, the minerals that made up the asbestos contaminating the Libby mine, weren’t regulated by the federal government. The attorneys say that this means the company can’t be prosecuted under the federal Clean Air Act.

Again, Judge Molloy agreed with the company, and again his ruling was overturned by the 9th US Circuit Court of Appeals. And W.R Grace & Co. is now asking that the Supreme Court reserve the decision.

W.R Grace & Co.’s petition says that the government “is trying to convict defendants of violating the Clean Air Act by releasing substances that the government itself has excluded from the list of substances covered by the act.”

The government must file a response within thirty days, after which the Supreme Court will decide whether or not it will hear the case. If the court declines, the decision will stand.

That means the trial itself might finally get started. If the Supreme Court decides to hear the case, it won’t do so until October 2008 at the earliest.

This entry was posted on Friday, May 30th, 2008 at 4:09 pm and is filed under Asbestos Litigation, Montana. You can follow any responses to this entry through the RSS feed. Responses are currently closed, but you trackback from your own site.