Appeals court revives ex-inmate's asbestos lawsuit

Chris Rizo Apr. 3, 2009, 9:00am

WICHITA, Kan. (Legal Newsline)-New breath has been breathed into a former inmate's lawsuit claiming he was exposed to asbestos at the federal penitentiary in Leavenworth, Kan.

A three-judge panel of the 10th Circuit Court of Appeals in Denver ruled that the lawsuit filed by Bryon Smith should be sent back to a federal trial court in Wichita.

Smith has claimed he was exposed to cancer-causing asbestos fibers in 2003, while installing an electrical fixture at the prison. He states he has developed an asbestos-related respiratory illness as a result.

He alleges that prison officials knew the closet contained asbestos because a 1994 survey by a consulting firm found asbestos fibers in the building.

The plaintiff says by knowingly exposing him to asbestos, prison officials violated his Eighth Amendment right against cruel and unusual punishment.

He has asked for $100,000 in compensatory and punitive damages, $2 million for negligence, $100,000 for the loss or destruction of his medical records and an unspecified amount for future medical expenses.

U.S. District Judge J. Thomas Marten dismissed the lawsuit in 2007. The judge ruled that Smith failed to show the prison officials were aware of the risks of asbestos exposure.

In Tuesday's ruling, the appeals court said Marten erred when he dismissed the lawsuit against prison officials who were sued in their individual capacities. The court, however, said Smith cannot sue the federal government.

"As the litigation progresses, it is possible the government will produce evidence showing that some or all of the individual defendants did not know that the 1994 Ramsey-Schilling survey disclosed the presence of asbestos in the closet, based on simple lack of knowledge or intervening circumstances," the appeals court said. "However, these are matters to be determined at a later point in the case."

Smith represented himself at trial. During his appeal, he was represented by attorney Daniel Volchok of the Washington law firm of WilmerHale.

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