Court Gives Inmate’s Case New Life

WICHITA, Kansas—A lawsuit filed by a former inmate has been reestablished by a federal appeals court. The former inmate reports that he was exposed to asbestos at the Leavenworth federal penitentiary.

The lawsuit was filed by Bryon Smith and was sent back by a three-judge panel of the 10th Circuit Court of Appeals to federal court in Wichita on Tuesday.

The asbestos exposure allegedly happened in 2003, while Smith installed an electrical fixture in a closet in the prison’s education department. He claims that prison officials were well aware of the asbestos containment due to a 1994 survey done by a consulting firm that reported its presence. He also alleged that prison officials violated his Eighth Amendment rights against cruel and unusual punishment by keeping that information from him, therefore being deliberately indifferent to his safety.

Asbestos is a well-known hazardous carcinogen, which consists of long, thin fibrous crystals and may be mixed with other substances in order to resist heat, electricity and chemical damage. When the fibers are damaged, released into the air and inhaled, they may cause many asbestos-related diseases including mesothelioma. Mesothelioma is a rare but aggressive form of cancer which does not manifest itself until years after the asbestos exposure, and which is rarely treatable.

Smith reported a developed cough, shortness of breath and trouble with throat and eyes. He also claims that he suffered emotional distress. He sought compensation and disciplinary damages of $100,000, in addition to $2 million for negligence, $100,000 for the loss of his medical records and another, untold amount for future medical expenses that may occur.

The lawsuit was dismissed in 2007 by U.S. District Judge J. Thomas Marten due to failure of evidence pertaining to the knowledge being kept by the defendants of the asbestos exposure. Martens also found Smith failed to meet jurisdictional requirements.

The appeals court upheld much of Marten’s rulings in a decision handed down on Tuesday but said that “although there was no guarantee of ultimate success on the merits,” the inmate’s allegations were nevertheless legally sufficient. The appeals judge ruled that the district court may have previously wrongfully dismissed the case.