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Curing the asbestos conundrum

Issues offer no easy solution

By RICK BARRETT

Last Updated: Nov. 16, 2002

A version of this story appeared in the Milwaukee Journal Sentinel on Nov. 17, 2002.

When Robert Asmondy stripped asbestos from steam boilers at the former Wisconsin Electric Power Co., the air around him was thick with the white, fibrous material, which settled on his clothing and skin.

  "It was like a snowstorm," Asmondy said. "And we didn't have respirators. We just breathed all that stuff."

Asbestos fibers, when inhaled, can cause various breathing ailments, including lung cancer. Now the 69-year-old Asmondy suffers from asbestosis, an incurable disease that has robbed him of much of his lung capacity. Although not usually fatal, the scarring of the lungs from asbestosis increases the risk of cancer and can lead to heart failure.

In 1991, when Asmondy was diagnosed with asbestosis, he received worker's compensation money and company-paid medical treatment. But it paled in comparison to the millions of dollars that some workers who were exposed to asbestos have received, even if they were not sick.

With more than 200,000 asbestos-related claims pending before U.S. and state courts now, the compensation problem has become complex. The estimated liability for U.S. businesses is more than $200 billion, according to the Rand Institute for Civil Justice, a research group in Washington, D.C.

Congress has been urged to protect companies from many of the lawsuits, and the Supreme Court is considering a case that will determine whether the fear of getting cancer is enough to entitle employees to damage awards.

In Wisconsin, money from a national pro-business group has sponsored an advertising campaign aimed at asbestos litigation reform. The Badger state has been targeted by the Citizens for Asbestos Reform Coalition, partly because Democratic Sens. Russ Feingold and Herb Kohl are on congressional committees where key votes may take place.

Asbestos litigation reform is necessary to prevent dozens of Wisconsin companies from being forced into bankruptcy, including some that had nothing to do with asbestos, said James Haney, president of Wisconsin Manufacturers & Commerce, a statewide trade association.

Wisconsin companies have been flooded with asbestos lawsuits, the majority having been claims from people who are not sick and may not be sick for decades, Haney said. "As a result, the genuinely sick and dying are often deprived of adequate compensation."

Some companies have been sued for asbestos illnesses because they belonged to trade groups in which asbestos manufacturers also were members. That is the case with Badger Meter Inc., which has been named as one of many defendants in three Mississippi lawsuits.

Badger Meter has never had a manufacturing plant in Mississippi. But some southern states have been fertile ground for asbestos lawsuits, including Mississippi, where a jury awarded six plaintiffs $25 million each in compensatory damages alone.

Plaintiffs in one of the Badger Meter lawsuits have argued that the company had a duty to inform Mississippi factory workers about the dangers of asbestos because it belonged to national trade groups with pertinent safety information.

"Defendants ignored or actively and fraudulently concealed such information . . . ," the suit filed in Holmes County, Miss., says.

There is no allegation that any Badger Meter products contained asbestos that caused an illness, said company President Rich Meeusen said. "I don't believe that we will ever have to pay a dollar in damages from these cases, but we have had to hire lawyers in Mississippi to defend ourselves, and that will cost us a great deal of money," he said.

Proof of illness sought

As asbestos manufacturers and major asbestos defendants file for bankruptcy, trial lawyers are suing less involved "second tier" companies, said Scott Tyre, public affairs adviser with Foley & Lardner, one of Wisconsin's biggest law firms.

Tyre is president of the Wisconsin Asbestos Litigation Reform Coalition, a group backed by businesses and attorneys that wants Congress to set medical standards for asbestos lawsuits.

"We are not trying to stop someone's ability to sue, but we want a standard to show that someone is sick" before they can collect damages, Tyre said. "Otherwise the court system has become clogged with cases that are draining resources for people who deserve compensation."

But many workers exposed to asbestos are going to be skeptical of companies' intentions in asbestos litigation reform, said Jack Metzger, a retired construction worker who lives near Hustisford and suffers from asbestosis.

Metzger, 60, has lost much of his lung capacity from the disease. As part of a class-action lawsuit, he received about $13,000, including a $150 check from the manufacturer of respirators that did not protect him from asbestos fibers.

"My feeling about these companies is that every one of their top executives should have to experience about six weeks of mesothelioma, which just eats up your lungs," Metzger said. "I don't really care if some of these companies go bankrupt. Many of them knew about the dangers of asbestos for decades, and they did nothing about it. If they are singing the blues now, they should have thought about it when they were causing the slow and painful death of thousands of people."

The number of asbestos lawsuits has peaked in recent years because an illness such as mesothelioma - which is directly related to asbestos - can take 30 years to develop and may have stemmed from workplace exposure in the 1960s and 1970s, said Milwaukee attorney Frank Pasternak.

Asbestos claims are difficult to prove, and there are laws to protect companies from frivolous lawsuits, said Pasternak, who represents asbestos plaintiffs. "I have great faith in the justice system. Let the legal marketplace work itself out," he said.

There is a lot of stress that comes from the fear of getting cancer, said Michael Pollack, a Milwaukee attorney with a Chicago law firm that represents asbestosis and mesothelioma victims. "If you find out that you have these fibers in your lungs, then yes it could change your retirement plans."

Previous attempts at asbestos litigation reform have stalled in Congress, largely because of pressure from trial lawyers, Tyre said. With a Republican Congress and the Bush administration, "clearly there is more opportunity now" to pass reform.

Nationwide, there are nine pending bankruptcies related to asbestos lawsuits, including large manufacturers of insulation, like Owens Corning. Asbestos victims won't benefit from companies being driven into bankruptcy, and the overall economy will suffer from the consequential loss of jobs, said John Metcalf, director of human resources policy with Wisconsin Manufacturers & Commerce.

"Once a company gets hits with some of these asbestos suits, the value of its stock plan can plummet, hurting employees and retirees," he said. "There is no question that if you have the disease, you have the right to sue. But legitimate claimants are losing out because of a land rush of other people filing claims."

Asbestosis has forced Asmondy, the retired Wisconsin Electric Co. worker, to give up swimming, cross-country skiing, softball and sports officiating. He still enjoys walking for exercise.

But, "any kind of a little hill, and I am done after about 30 yards," he says.

Asmondy was exposed to asbestos for years, starting in the mid-1950s. It was not until the 1970s that asbestos, for safety reasons, was phased out of most non-essential uses.

By then it was too late for many workers exposed to asbestos, Asmondy said.

"At least 20 of my friends that I worked with have already died of lung cancer," he said.

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