January 21, 2010 - Asbestos Case Heats Up with Change-of-Venue Motion

In the 10 days since a legal ad in the Chattanooga Times Free Press alerted potential "victims" and workers about an upcoming asbestos trial, attorneys for some of the men charged in the case have filed motions seeking a change of venue or dismissal of their charges.

Attorneys for the men, who are charged with criminally violating the federal Clean Air Act, claim the ad, along with a sign on the former plant site of the Standard-Coosa-Thatcher textile mill, prejudices the case. It is scheduled for a jury trial in Chattanooga on Feb. 16.

They also contend that U.S. attorneys and the court acted improperly in November 2009 by meeting without them to approve the ad and sign, and then again by sealing the request with the court's approval.

U.S. Attorney Gregg Sullivan has said the government is required to make efforts to notify victims of crimes about an upcoming trial. He said the circumstances of asbestos exposure five years ago make it difficult to reach all the potential victims.

The U.S. District Court case revolves around government claims that a substantial amount of asbestos was handled improperly and removed from the former Standard-Coosa-Thatcher plant in the 1700 block of Watkins Street between August 2004 and September 2005.

The indictment states that Donald Fillers, David Wood and James Mathis employed day laborers, homeless people and other untrained people to work without protective equipment and remove the asbestos.

The material -- which EPA has been determined can cause lung cancer, asbestosis and mesothelioma, an invariably fatal disease -- was not wetted down or properly removed, according to the indictment.

Instead, it was chiseled, sawed, thrown out windows, swept with brooms, pushed into open piles, hidden in trash containers and disposed of at facilities not authorized to accept asbestos, court documents say.

EPA has determined that there is no safe level of exposure to asbestos.

Gary Fillers, a fourth defendant and brother of Donald Fillers, has pleaded guilty to one charge in the 11-count indictment. He is to be sentenced on March 18.

In a filed response to the plaintiff attorneys' motion, government prosecutor Matthew Morris said a change of venue or case dismissals "are clearly unwarranted."

"The 'direct and proximate' victims ... are an untold number of individuals who were at some time involved in the demolition and salvage operations, worked in or attended the (Pro Re Bona Day Nursery) daycare facility which shares the same city block ... or others who lived or worked in the area ... " the court document states.

Defense attorneys disagree.

"The motivation for the legal notice was principally, if not wholly 'to solicit information or request information from these individuals,' i.e., the general public -- a clear violation of the purpose and spirit of law (and) resulting in a high likelihood of irreparable bias," according to a motion filed Wednesday by defense attorneys.

The defendants face up to five years in prison and a fine of up to $250,000 or twice the gross gain or loss to the victims, according to court officials.

In court filings, the defendants' attorneys also challenged the fact that U.S. attorneys met with a federal judge to request permission to run the legal ad and post the sign without the defense attorneys' knowledge. Then the resulting order allowing the actions was sealed in the court record, preventing their knowledge of it, they contend.

The motion to file that document under seal "was improperly granted," their response states.

Defense attorneys stated the legal notice prompted a newspaper article about the case. They asked the court to "seal" an exhibit of the newspaper story.

A final pretrial hearing is scheduled Jan. 29 before U.S. District Judge Curtis Collier.

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