Ruling Goes Against W.R. Grace

The Washington Post reports that federal prosecutors in the case against asbestos giant W.R. Grace won a small victory yesterday when an appeals court panel ruled that the U.S. attorney in Montana might be allowed to call several witnesses and use studies that a lower-court judge had barred from a pending trial over Grace’s actions in Libby, Montana, where hundreds have been sickened from asbestos-related diseases.

Though U.S. District Judge Donald Molloy had rejected the federal prosecutors bid to present at least nine witnesses and evidence from three critical environmental health studies, saying the government had missed several deadlines, a panel of three judges determined that the district judge had exceeded his authority in presenting such a ruling. The appeals court said that Molloy must find that the government lapse was “willful and motivated by a desire to obtain a tactical advantage” to bar the witnesses from testifying.

“We are sympathetic to the district court’s attempts to manage this large and complex criminal trial,” the appeals court wrote. The panel said the trial judge could yet find a basis to “justify excluding or limiting testimony or documents — either as a sanction or as an evidentiary matter.”

One of the studies in question concluded that 1,200 people in Libby and surrounding towns suffered from some sort of lung problem, probably caused by asbestos exposure. This included not only workers at Grace’s Zonolite plant, but community members who were also exposed to airborne fibers on a daily basis.

William W. Mercer, the U.S. attorney in Montana, said the appeals court ruling moved the government “one step closer to the ultimate goal of trying… W.R. Grace and the individual defendants with a full complement of evidence.”

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