Federal Appeals Court Reinstates Former Inmate's Asbestos Lawsuit

On March 31, a three-judge panel seated for the 10th Circuit Court of Appeals in Wichita, Kansas ruled that Bryon Smith's case against the federal government was legitimate and should be reconsidered.

Smith sued the government in 2007 over asbestos exposure incurred while incarcerated at the federal penitentiary in Leavenworth, Kansas, a medium security facility housing male inmates, with an adjacent satellite prison camp housing minimum security male offenders. Part of the U.S. Department of Justice, Federal Bureau of Prisons, Leavenworth is located 25 miles north of Kansas City, Kansas, on State Highway 73.

This new ruling sends the case back to federal court in Wichita, the capital city of Kansas, where Smith - who charges his 2003 asbestos exposure was incurred while installing an electrical fixture in a closet in the prison's education department - will perhaps get a fair shake out of a judicial system largely tied to government interests. According to Craig Berrington, general counsel of the American Insurance Association, federal agencies have known of the risks of asbestos for years, but the courts have either failed to act or intentionally overturned cases which targeted federal, state or local governing agencies.

Smith's is not the first case in which prisons, and their officials, have been charged with everything from outright negligence to physical endangerment. On September 3, 2008, eight prisoners at the New Jersey State Prison charged the system with inhuman and abusive conditions, including unsafe levels of asbestos. In 2007, prisoners at the Cayuga County Jail (New York) were exposed to asbestos in a jail remodeling project. Again in 2007, Elk City, Oklahoma, City Manager Guy R. Hylton Jr. and Elk City Supervisor Chick Arthur Little were charged and convicted for improperly using work-release inmates to remove asbestos-containing materials from the Elk City Railroad Dept. in 2003. The list goes on.

Smith further charges that prison officials knew the closet in question contained asbestos because a 1994 survey, completed by an asbestos consulting and remediation firm, identified the substance. Smith says prison officials violated his Eighth Amendment rights, which state that: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". In spite of that, the aforementioned prison officials deliberately ignored the hazards to his future health and peace of mind.

Smith, who says he later developed a cough, trouble with his throat and eyes, and shortness of breath, is seeking $100,000 in compensatory and punitive damages, $2 million for negligence, $100,000 for the "accidental" loss of his prison medical records, and an unnamed amount for future medical expenses he expects to incur.

Asbestos, a fibrous mineral used in insulation, floor and roofing tiles, tile glues and some ceiling panels up to the 1970s, can - when inhaled - cause a number of debilitating, occasional fatal diseases like lung cancer, cancer of the pharynx, cancer of the esophagus, stomach cancer, colon cancer, cancer of the rectum, asbestosis and mesothelioma. The worst of these is mesothelioma, a specific type of lung cancer which often doesn't present symptoms for three to five decades. Once it does, however, it is usually fatal, and most victims die within 18 months of diagnosis.

U.S. District Judge J. Thomas Marten, who originally heard the lawsuit in 2007, summarily dismissed the charges on the grounds that Smith had failed to show that the defendants were aware of a "significant risk" of exposure to asbestos, or that they acted with intentional indifference. Martens also expressed the opinion that Smith's case did not meet jurisdictional requirements, in that Smith sued prison officials in their individual capacities rather than the prison as a whole.

The March 31 reversal upheld most of Marten's original ruling but argued that Smith's charges were legally sufficient to seek relief from the court. It also noted that Smith cannot sue the federal government. Smith, who represented himself during the trial, was appointed an attorney during the appeals process. Daniel Volchok, of Washington law firm WilmerHale, is expected to conduct the new trial.

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