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In re Asbestos Litigation

Supreme Court of Montana

June 8, 2018

IN RE ASBESTOS LITIGATION, Consolidated Cases.

          Amy Eddy, Asbestos Claims Court Judge Department No. 1 Flathead County Justice Center

          ORDER RE: MOTIONS TO QUASH

          Amy Eddy, Asbestos Claims Court Judge

          Pending before the Court is Plaintiffs' Motion to Quash Subpoenas on CARD Clinic and CARD Foundation, filed May 25, 2018; Non-Parties CARD Clinic's and CARD Foundation's Objections to and Motion to Quash Subpoenas, filed May 29, 2018; and Non-Parties CARD Clinic's and CARD Foundation's Objections to and Motion to Quash Amended Subpoenas, filed June 5, 2018. The Defendants filed a Response on June 8, 2018. Considering the expedited timeframes involved in this matter, the Court is issuing this Order without waiting for any Reply briefs to be filed.

         Also pending before the Court is the Defendants' Motion to Strike, filed June 8, 2018. Considering the expedited timeframes involved in this matter, the Court is issuing this Order without waiting for any Response briefs to be filed.

         Neither party requested a hearing, nor does one appear necessary to the Court. Having reviewed the file and being fully apprised, the Court hereby finds as follows:

         ORDER

(1) Plaintiffs' Motion to Quash Subpoenas on CARD Clinic and CARD Foundation is GRANTED in part and DENIED in part, consistent with the below rationale;
(2) Non-Parties CARD Clinic's and CARD Foundation's Objections to and Motion to Quash Subpoenas is GRANTED in part and DENIED in part, consistent with the below rationale;
(3) Non-Parties CARD Clinic's and CARD Foundation's Objections to and Motion to Quash Amended Subpoenas is GRANTED in part and DENIED in part, consistent with the below rationale; and
(4) Defendants' Motion to Strike is GRANTED in part and DENIED in part, consistent with the below rationale.

         RATIONALE

         On May 14, 2018, the Defendants in this matter served the following subpoenas pursuant to Rule 45, Mont.R.Civ.P.: (1) Subpoena to Testify at a Deposition in a Civil Action on the Rule 30(b)(6) representative of the CARD Clinic, outlining 56 areas of testimony; (2) Subpoena Duces Tecum on the CARD Clinic, outlining 54 categories of documents to be produced; (3) Subpoena to Testify at a Deposition in a Civil Action on the Rule 30(b)(6) representative of the CARD Foundation, outlining 21 areas of testimony; and (4) Subpoena Duces Tecum on the CARD Foundation, outlining 21 categories of documents to be produced.

         After the Plaintiffs, the CARD Clinic and the CARD Foundation filed their initial objections to the above Subpoenas, on June 1, 2018, the Defendants served Amended Subpoenas seeking to correct some of the procedural errors with the initial subpoenas, including attaching the text of Rule 45(e), Mont.R.Civ.P., including a "Certification Pursuant to Montana Health Care Information Act", extending the time to comply with the Subpoenas, and requesting complete patient files of Defendants' defined "CARD's Research Pool or Cohort." Otherwise, the Amended Subpoenas were substantially similar to the original Subpoenas.

         On June 5, 2018, the CARD Clinic and the CARD Foundation renewed their objections to the Amended Subpoenas. On June 8, 2018, the Defendant's filed a Motion to Strike Plaintiffs' Motion to Quash Subpoenas on CARD Clinic and CARD Foundation, on the grounds the Plaintiffs did not have standing to object to the subpoenas served on a non-party.

         A. Factual and Procedural Background

         In 1963, W.R. Grace & Co. purchased a vermiculite mine and mill in Libby, Montana from the Zolonite Company and continued to operate the mine until its closure in 1990. While in operation, the mine produced approximately 80 percent of the world's supply of vermiculite, a mineral used in building insulation and soil conditioner. A highly toxic form of asbestos, commonly called Libby Amphibole asbestos, intermixed with the vermiculite, and by extracting and processing the vermiculite, substantial asbestos-laden dust was generated. Additionally, expansion, bagging, storage, and transport facilities in Libby produced the asbestos dust.

         Over the course of decades, the W.R. Grace & Co. mine and mill and associated facilities released asbestos dust throughout Libby and Troy in Lincoln County, Montana. Termed the "Libby Asbestos Site" by the Environmental Protection Agency ("the EPA"), the exposure to asbestos dust there is unique because of the variety of exposure routes, the cumulative exposures experienced by community members, and the adverse health effects present and documented in residents. Asbestos exposure was not limited to vermiculite mine and associated facility workers and their families; the community at large used asbestos-containing material in homes, gardens, and public areas. Many people insulated their homes with asbestos-containing vermiculite insulation. Children played on vermiculite piles.

         Atmospheric deposition of toxic asbestos also contaminated the soil in the Libby community. The EPA attributed soil contamination from community transportation and use of the vermiculite mine wastes. Atmospheric deposition also contributed to indoor asbestos dust inside homes and businesses.

         Finally, Libby's unique topography and weather patterns concentrated asbestos dust in the Libby Asbestos Site. Libby is located in a narrow valley, surrounded by mountains 4, 000 feet higher than the town. In the winter, persistent temperature inversions concentrate atmospheric contaminants, including asbestos, in the valley.

         At the Libby Asbestos Site, disease and death rate from asbestosis and asbestos-related disease significantly higher than the national average. In 2002, the Center for Asbestos Related Disease ("CARD Clinic") was established in in Libby in response to raised awareness of widespread asbestos exposure. Since then, the CARD Clinic's stated goal has been to provide long-term screening, health monitoring, disease diagnosis, and counseling to people exposed to Libby Amphibole asbestos. The CARD Clinic also assists in asbestos-related disease research. Since establishment, the CARD Clinic has screened approximately 5, 700 people for asbestos-related disease; and, it continues to actively follow the status of 7, 700 patients.

         The CARD Clinic is governed by a volunteer board, and it employs about 25 people. Doctor Brad Black, M.D., is the CARD Clinic's Chief Executive Officer and Medical Director and is supported in identifying and managing Libby Amphibole asbestos-related disease by Doctor Alan Whitehouse, M.D., a Spokane-based pulmonologist. Prior to joining the CARD Clinic, Dr. Black specialized in pediatrics and worked as the Lincoln County Health Officer. Dr. Whitehouse began seeing patients affected by asbestos in 1985 and worked for the CARD Clinic between 2004 and 2009.

         The CARD Clinic is open four days per week. In 2017, the CARD Clinic's budget was approximately $3 million, with funding primarily derived from the federal government by way of grants. In whole or in part, grants pay for the salaries of 19 CARD ...


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