Grace, a worldwide chemical manufacturer charged with concealing the dangers of asbestos-contaminated vermiculite mined near Libby, petitioned the high court to reconsider two pretrial rulings handed down last year by U.S. District Judge Don Molloy. Those rulings, later reversed by a panel of senior judges, significantly bolstered the company's chance of beating the charges.
Besides banning the testimony of any witnesses whose names were not submitted before a court deadline, Molloy also prohibited the government's use of numerous documents, including three critical environmental health studies spelling out the hazards of asbestos.
At the rehearing, a larger panel of 15 judges will be on hand to determine whether the smaller panel erred in its findings. The appellate court announced the rehearing Monday, though a date has not been set.
Meanwhile, Grace's defense team also has announced it will petition the 9th Circuit for a rehearing on six separate decisions by Molloy, which prosecutors argued would have changed the evidentiary landscape at trial.
In September, another three-judge panel reversed or revised those decisions, including Molloy's ruling that federal prosecutors could not allege top officials conspired to “knowingly endanger” miners and residents of Libby by exposing them to asbestos. The charge of “knowing endangerment” is a violation of the federal Clean Air Act and carries a possible 15-year prison term on each of the three counts.
Attorneys for Grace have until Nov. 5 to submit their arguments.
Environmental studies suggest that the death rate from asbestos-related disease in Libby is more than 40 times the national average.
Since the trial was postponed last year, one government witness and a defendant have died. Les Skramstad, an activist, musician and former Libby resident who fought for years against Grace, died in January, just 11 weeks after being diagnosed with mesothelioma, a fast-killing form of lung cancer attributed to asbestos exposure. A month later, Alan Stringer, a former general manager of the Libby mine who was charged, also died of cancer.
Reporter Tristan Scott can be reached at 523-5264 or at tscott@missoulian.com.
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