Family of Man Killed by Toxic Waste Loses Award

     (CN) – The 5th Circuit tossed a $2 million award to the family of a man killed by exposure to industrial waste, but the company behind the spill must still pay a criminal fine.



     Delvin Henry, an employee of Honeywell International, died in 2003 after handling a container that contained industrial waste. Chemical & Metals Industries had mislabeled the container the container as holding nontoxic refrigerant.
     The Hudson, Colorado-based Chemical & Metals pleaded guilty in 2010 to negligent endangerment in Baton Rouge. A federal judge sentenced the company to two years of probation along with $1 million in fines and $2 million in restitution to Henry’s family.
     The New Orleans-based federal appeals court trimmed that penalty last week, finding a lack of evidence to justify restitution or a fine that exceeded the $500,000 statutory maximum.
     Though the prosecutors said they could present such evidence on remand, the three-judge panel rejected this maneuver.
     “The government generally may not present new evidence on remand when reversal is required due to the failure to present evidence originally,” Judge Leslie Southwick wrote for the court.
     Southwick was not persuaded that the loss finding had support because the Henry family won $2 million when Honeywell was sentenced for the same events. This is merely an admission that the government failed to document the loss in the Chemical & Metals trial.
     Chemical & Metals also did not doom its appeal by not objecting at the trial court phase, according to the panel.
     The last of the government’s claims noted that the trial judge died while the case was on appeal, making it “impossible at this juncture for the new district judge … to explain the basis for the fine imposed.”
     “These factors, either singularly or together, fail to show that this case involves special circumstances,” Southwick wrote. “The government failed to meet its burden in the first proceeding before the district court. It will not receive a second chance.”
     After tossing the $2 million award, the panel capped the penalty at $500,000.

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