The company will ask the high court to review an order by the 9th U.S. Circuit Court of Appeals, which reversed a half-dozen decisions handed down in August 2006 by U.S. District Judge Donald Molloy.
Molloy's decisions brought the prosecution to a standstill and stymied the government's plans to bring charges of “knowing endangerment,” a violation of the federal Clean Air Act that carries a possible 15-year prison term on each of the three counts.
In addition to reviving the charges of “knowing endangerment,” the panel of senior judges also reversed Molloy's decisions that would have narrowed the definition of asbestos, disallowed a long list of evidence and limited the materials available to expert witnesses at trial.
But one week after the appellate court ruled in favor of the federal government, lawyers for W.R. Grace filed motions indicating the corporation would fight the decision, which Montana U.S. Attorney Bill Mercer hailed as “an important victory for the United States.”
Lawyers for Grace argued that the three-judge panel erred in its findings of fact, and requested a new hearing before the whole court. That appeal for recourse was denied. But under the rules of appellate procedure, Grace was granted a stay of the order of denial, allowing defense attorneys time to prepare an appeal to the U.S. Supreme Court.
Grace initially had until March 14 to file its petition, but Justice Anthony Kennedy granted the company a 30-day extension last week. No other extensions will be granted, according to Kennedy's order.
The case will arrive back in Molloy's hands once the appeals process is exhausted.
The trial, originally scheduled to begin in September 2006, will likely open in May, although no date can be set until the appeals are settled.
A federal indictment unveiled three years ago, in February 2005, charges the chemical manufacturer and seven of its former managers with conspiring to hide health risks associated with its Libby vermiculite mine, which closed in 1990. Grace has denied any criminal wrongdoing.
Among Molloy's other disputed rulings reversed by the 9th Circuit last July was an order limiting the government's witness list to approximately 250 witnesses, and another that prohibited the government's use of numerous documents, including three critical environmental health studies spelling out the hazards of asbestos.
Grace has also petitioned the 9th Circuit on those decisions, but the panel of judges still has not ruled on the lawyers' arguments, which the court heard last December.
One federal study at issue concluded that more than 1,200 people in Libby and surrounding areas showed signs of lung abnormalities tied to asbestos diseases from the mine.
Reporter Tristan Scott can be reached at 523-5264 or at tscott@missoulian.com.
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