Asbestos Court to resolve hundreds of claims

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Fencing at an EPA asbestos cleanup site in Libby in the summer of 2015. (Western News photo)

The Montana Supreme Court on Tuesday issued an order creating an asbestos claims court to resolve hundreds of Libby asbestos-related cases pending in the state’s trial courts.

The cases have languished for years because W.R. Grace & Co. — the owner of the defunct vermiculite mine near Libby that is blamed for widespread asbestos disease and death in that community — filed for bankruptcy protection shortly after the Montana Legislature passed the Asbestos Claims Court Act in 2001. Now those cases can proceed in the state court system.

The high court’s order places all pending asbestos cases into a specialty court. Flathead District Judge Amy Eddy, who has an extensive background in complex civil litigation, will preside over the court initially, handling pre-trial proceedings.

“It’s an enormous responsibility, but resolution needs to be brought to these cases,” Eddy said. “It would be devastating to the judicial resources, which are severely underfunded, if they were to be litigated on an individual basis.”

Eddy said her work with the District Court is and will remain a priority, and stressed that no local resources will be used for the asbestos claims court. The venue will be in the Montana Supreme Court, “as a specialty court, using their resources,” she said.

“I believe I have the resources on an interim basis to handle these [asbestos] cases, with my docket being currently up to speed,” Eddy said.

A total of about 600 pending asbestos cases have been identified, though there may be many more cases out there, according to a Supreme Court press release.

The order requires attorneys representing parties in cases arising from Libby asbestos-related claims to file a notice of appearance with the asbestos claims court within 30 days, by Dec. 28.

According to the Supreme Court, parties and attorneys involved in lawsuits brought for the recovery of monetary damages for personal injury, wrongful death, loss or consortium, or other injury “arising out of an asbestos-related disease that is alleged to result from the mining of vermiculite, the processing of vermiculite, or the transfer, storage, installation, or removal of a product containing vermiculite” should file a notice of appearance, even if a case does not appear on the list. The notice of appearance must be filed electronically through the Montana Supreme Court.

Consolidating the cases will allow discovery and settlement discussions to proceed more quickly, the high court said. Any cases that are not settled will be tried in the judicial district in which the cases originated.

Eddy said she expects to issue an order setting a hearing in Helena sometime around mid-January.

Roger Sullivan, an attorney with the Kalispell law firm McGarvey, Heberling, Sullivan & Lacey, which represents a majority of Libby asbestos claimants, said the asbestos claims court is, in essence, a way to more efficiently manage the asbestos caseload.

“I think really what this has at its heart is it’s a management tool for the Supreme Court to manage the docket of the district courts in a fair and efficient manner,” Sullivan said. “The judge has the full deck of cards and then has the opportunity to make a reasoned choice which cases should be moving forward and which cases don’t necessarily need to be expedited.”

Because it typically takes a long time — up to 30 years or more — from the initial exposure to asbestos to the time the disease becomes evident, it creates a challenge for the legal system, Sullivan explained. Claims involving asbestos-related disease must be filed within three years from the day of diagnosis, but it may take a number of years for the disease to progress.

The result is that cases can stack up in district courts, “so there’s a need for a reasonable process to resolve these cases,” Sullivan said.

State lawmakers passed the Asbestos Claims Court Act in 2001 with the expectation of looming litigation related to toxic exposure from the Grace vermiculite mine, but shortly after the bill was signed Grace went into bankruptcy proceedings, which created an immediate stay against all Libby asbestos cases.

Over the ensuing years, asbestos-related litigation against other entities, such as the railroad and state of Montana, eventually was allowed.

Features editor Lynnette Hintze may be reached at 758-4421 or lhintze@dailyinterlake.com.

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