Asbestos court subpoenas strain CARD Clinic, Foundation

By JOHN BLODGETT

The Western News

Despite not being parties to any asbestos settlement cases, the Center for Asbestos Related Disease Clinic and Foundation since May have produced thousands of documents and hours of depositions in response to subpoenas from defense attorneys.

The process has been costly and time-consuming for the two Libby nonprofits.

“We have been burdened with an additional workload related to the defense's discovery efforts in compiling [more than 30,000] documents, and some of our employees were also deposed,” Dr. Brad Black, CEO and medical director of CARD, said by email.

CARD Clinic staff had “already dedicated over 210 staff hours” responding to the subpoenas by the end of September, according to a motion filed by attorneys representing CARD.

“This, unfortunately, takes away from the time that the CARD Clinic staff members can spend working to meet our patient's healthcare needs, but our staff has really pitched in wholeheartedly to help in these efforts,” Dr. Black wrote.

The subpoenas have been a focus of attorneys for BNSF Railway Company, one of the defendants in many of the hundreds of asbestos settlement cases that have been consolidated in an asbestos claims court the Montana Supreme Court created in Kalispell last December.

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

The court was authorized in 2001, when state lawmakers passed the Asbestos Claims Court Act in anticipation of litigation related to toxic exposure from the W.R. Grace vermiculite mine. Yet the court's opening was delayed for years because shortly after the bill was signed W.R. Grace filed for bankruptcy, which created an immediate stay against all Libby asbestos cases.

Though BNSF Railway attorneys have been the driving force behind the subpoenas, co-defendants International Paper and the State of Montana have also participated in joint and separate motions and responses.

The subpoenas' scope has been contentious and is still being hashed out in court, documents show.

Flathead District Judge Amy Eddy, who presides over the court, originally quashed a number of categories of documents and testimony defense attorneys sought, stating that some requests were “duplicative, overly broad, overly burdensome and/or seeking confidential information,” according to an order filed June 8.

Eddy did “not at this point concur” with plaintiffs' counsel that the subpoenas “appear to be a fishing expedition aimed at abusing a nonparty to this action and smack of witness intimidation.”

In court filings related to the subpoenas, BNSF Railway attorneys question the veracity of CARD Clinic diagnoses and the financial relationship between it and the CARD Foundation, among other items.

“Our mission is to seek funding to support the goals of the CARD [Clinic], specifically their healthcare, research and outreach needs,” CARD Foundation President Zach McNew said by email. “We have nothing to hide, and we continue to operate with full confidence that the CARD Foundation functions legitimately and as expected in pursuit of our mission to support the CARD Clinic.”

Defense attorneys subsequently moved to reopen some of the categories previously quashed.

In addition to the thousands of documents, the subpoenas compelled a number of former and current staffers of both the CARD Clinic and CARD Foundation to testify in depositions — some more than once.

According to Dr. Black, responding to the subpoenas has taken a toll on the two nonprofits.

“Although we originally thought we'd only need limited pro bono legal help, we found it necessary to actually retain an attorney to protect our interests and those of our patients when this discovery process turned out to be much more intense than a one-time subpoena response,” he said by email. “This financial obligation, in addition to the additional workload, wear and tear on our equipment, and increased number of staff hours needed to respond, has been difficult for CARD.”

The law firms representing CARD Clinic and CARD Foundation — Bechtold Law Firm of Missoula and Thueson Law Office of Helena — seek to recover the legal fees and other costs the two nonprofits have incurred in responding to the subpoenas. That amount was almost $63,000 as of Sept. 28, according to a notice filed that day in court.

On Oct. 2, one day before a scheduled hearing on the matter, the defense filed a response asserting that the CARD Clinic and CARD Foundation were due only about $6,700.

No court documents describing the outcome of Wednesday's hearing were available Thursday afternoon.

Despite the court proceedings, CARD staff remains “focused on our patients” and committed to responding “to discovery requests as necessary,” Dr. Black wrote.

“We remain dedicated to continued research in coordination with academic institutions to ensure that we have the best possible understanding of this disease and how to help the patients who are affected,” he continued. “We also continue to implement our free screening programs and provide ongoing care to those diagnosed with asbestos related diseases.”