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February 28, 2005

Leo Fortner, an IBEW shipyard retiree from Mississippi and Senator Pat Leahy (D-VT.) may not appear to have much in common. That’s until one compares the occupational lung diseases that have led to the excruciating deaths of family elders – Fortner’s father, a Gulf Coast shipyard worker; Leahy’s maternal and paternal grandfathers, stone quarrymen in Vermont.

Both men are part of the sizeable cluster of Americans who are stakeholders in a long-running political battle over who will pay for the human carnage of asbestosis, its related cancer – mesothelioma – and other occupational lung diseases.

Over 40 companies that mined, processed or handled one of several types of asbestos or vermiculite, widely used fire-resistant products, have filed for bankruptcy as a result of lawsuits by employees.

The RAND Institute for Civil Justice estimates that companies have paid $70 billion on some 730,000 asbestos personal injury claims, making it the most expensive type of civil litigation in U.S. history. Some studies project that $200 billion more could be paid out in new claims to victims, who sometimes don’t exhibit symptoms of disease until 20 to 30 years after their initial exposure. According to OSHA, an estimated 1.3 million employees in construction and general industry face significant asbestos exposures on the job. Even members of their families are at risk from dust that workers may have carried home.

The Senate Judiciary Committee, led by Senator Arlen Specter (R-PA.) and ranking member Leahy has been deliberating for many months, under the direction of a federal judge, Edward Becker, over the establishment of an asbestos trust fund to compensate victims in place of the current litigation model. To the stakeholders, the contentious legislative process – including over 40 meetings with Judge Becker – must seem almost as excruciating as the disease that it aims to address.

The AFL-CIO contends that corporations such as E.I du Pont de Nemours, Exxon and Federal-Mogul, supported by right-wing political forces, have mounted a conscious effort to reverse tentative understandings reached in the last Congress between Republican Majority Leader Bill Frist (R-TN) and former Senate Minority Leader Tom Daschle (D-SD) on a wide range of difficult issues related to the establishment of the trust fund.

Stirring the passions of the sufferers, their families and their advocates is the knowledge that corporations that profited from asbestos hid dangers from their employees. In February, federal prosecutors charged executives of W.R. Grace with covering up rampant asbestos contamination of workers and community residents from mines and facilities in the Montana mountain town of Libby. Among the victims are members of IBEW Local 768 in Kalispell.

Leo Fortner’s father, Jimmy, a member of IBEW Local 733, began working at Ingalls Shipyard in Pascagoula, Mississippi, in 1941, back when dangerous asbestos fibers formed a cloud so thick in the engine room that one worker said, "you couldn’t see in front of you." Jimmy Fortner visited the doctor at age 75 with a chronic cough. Diagnosed with mesothelioma, which has a median survival rate of 12.3 months for patients undergoing chemotherapy, he died one year later.

Leo, 64, who joined his father in the shipyard in 1960, says, "We all suffered watching him die." He describes how his father was injected with a mustard-type solution that would make him so hot that the thermostat needed to be turned down in the house. Fortner, an electrical superintendent, says, "Yes, my father lived to be 76, but he had no heart problems and no high blood pressure. How long would he have lived if it wasn’t for asbestos?" Now, Fortner has been diagnosed with lung scarring that is "consistent with asbestosis."

Lungs scarred by asbestos fibers have limited capacity to pick up oxygen and expel carbon dioxide, causing victims shortness of breath. Sufferers have a 20 percent greater chance of developing tumors of the lung. In smokers, the risk rises to 55 percent. Fortner worries about repeating his father’s agony, or that of his friend Paul Crocker, another shipyard worker who died of the same cancer in his late fifties. "The company knew asbestos was dangerous," he says. "They were hoping to cover it up for another 20 years."

William "Chico" McGill, business manager of Local 733 – who will become director of the IBEW Government Department on April 1 – remembers visiting the Pascagoula shipyard in the middle of the night to monitor contractors who were removing asbestos from the pipes, boiler rooms and burners of old steamships. He says: "We were like old-fashioned Marines, checking to see if the troops shaved. We found kids working who were no more qualified to safely remove asbestos than I was to be a banker."

Jimmy Fortner’s civil suit for damages against Johns Mansville Inc., one of the largest asbestos tort defendants, dragged on for years. When his case finally went to trial, the family was awarded over $2.5 million, but, in an outcome faced by thousands of plaintiffs, Fortner’s award was set aside when Johns Mansville entered Chapter 11 bankruptcy. Jimmy Fortner’s widow, Elise, received some checks – usually for $500 or $1,000 – from a few of the asbestos companies as part of the giant class action before she died in 1998. Leo has received a few more. More than 300,000 other asbestos claims are currently pending; some experts expect them to rise to 600,000.

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The gallery was packed when the Senate Judiciary Committee held a hearing on February 2 to debate the impact of the asbestos trust fund on plaintiffs who claim to suffer from exposure to "mixed dusts" such as silica, prevalent on jobs where stone is cut or drilled, like mining.

On one side of the issue were companies worried about a potential flood of lawsuits by workers, dissatisfied with the outcome of the asbestos trust fund’s awards, who could claim to be suffering from silicosis or other occupational lung diseases.

On the other side were the AFL-CIO and lawyers for plaintiffs who suffered from silicosis, coal miner’s black lung and other diseases. They argued that silicosis and asbestosis had very different medical profiles, contending that it would be a gross injustice to either reduce the ability of those legitimately suffering from silicosis and other diseases to file lawsuits or to limit the awards of asbestos victims on the baseless assumption that they were affected by other dusts. The problem of potential "junk" lawsuits can be addressed, they claim, without jeopardizing the rights of legitimate plaintiffs.

Senator Leahy, clearly exasperated, took the microphone. He denounced the "last minute" attempts to dramatically alter the recovery on personal injury claims of workers exposed to a broad range of exposures from fibers and dusts, even "over-reaching" to deny claims to those who have suffered lead poisoning. He said: "Both my Italian grandfather and my Irish grandfather had silicosis from working in the stone quarries of Vermont. One died at age 35. Under this language, they would have had trouble recovering an award for their disease."

On February 15, the AFL-CIO echoed Leahy’s exasperation in a detailed letter to the Senate concerning a number of issues under consideration in asbestos trust fund negotiations. The letter stated: "This crisis was caused by the willful actions of manufacturers and employers who withheld information about the hazards of asbestos and did little or nothing to control exposures. Asbestos disease victims have already suffered enough. They should not be subject to a second tragedy through the enactment of flawed legislation that takes away their legal rights and does not treat them fairly."

The federation affirmed its support for the establishment of a no-fault system to replace the present civil litigation model. It credited the last Congress and Senators Daschle and Frist for making progress on key aspects, including agreements on levels of compensation – correlated to the different stages of lung disease – and the establishment of an administrative claims system at the Department of Labor.

The AFL-CIO praised Senator Specter for his efforts to further resolve issues such as barring liens against the trust fund awards by workers’ compensation and other insurers, establishing a high-quality medical surveillance program for exposed workers, providing for more transparency regarding trust fund contributions and establishing assessments on parties who violate EPA and OSHA asbestos requirements.

While expressing the hope that remaining issues can be resolved, the letter, signed by William Samuel, Director, Department of Legislation says: "The AFL-CIO will strongly oppose any attempt to push through, on a partisan basis, legislation whose main purpose is to bail out companies at the expense of victims." To avoid this outcome, the federation asked that the following issues be resolved:

• more upfront funding to prevent the fund from collapsing in the early years
   

• improvements in some of the award levels, particularly for some of the lung cancer levels
   

• upward adjustments in awards for particularly young victims with dependent children
   

• remedies for terminally ill victims during the period after enactment, but before the fund is operational
   

• compensation of future victims if the fund is depleted.
   

• address defendants’ concerns about asbestos claims being converted to silical
   

• claims without impairing the ability of true victims of silicosis and other
   

• non-asbestos diseases to obtain redress for their injuries in the courts.

Lobbying and political maneuvering over the trust fund continue, but the focus on the issue has been at least temporarily obscured. Ironically, the Republican Congressional leadership turned its attention, instead, to "tort reform." Bruce Burton, IBEW Political/Legislative Department, says: "Tort reform sucked all of the oxygen out of the room." The "Class Action Fairness Act" that Congress passed on February 10, would make it harder for class action cases to proceed to settlement by removing them from state courts and putting them on already overcrowded federal dockets. Consumer, labor and environmental advocates have denounced the bill.

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Despite the trust fund’s uncertain future, the Libby, Montana story has spread across the media landscape. Front-page reports of the criminal charges against W.R. Grace executives have been joined by a TV documentary entitled "Dust to Dust" and a soon-to-be-released film "Libby, Montana" by High Plains Films.

In 1963 W.R. Grace bought the Libby vermiculite mine from the Zonolite Corporation that had been operating it since 1939. Zonolite, a vermiculite product, was widely used in construction, mostly as attic insulation and sprayed-on fireproofing for steel beams. Vermiculite ore from Libby contains lethal tremolite asbestos. Grace’s processing facilities refine vermiculite ore, but tremolite remains in abundant quantities after the process.

W.R. Grace commissioned animal studies in 1977 that proved that asbestos from the Libby mine caused cancer, but did not release the details to the work force or leaders of their union. In 1999, after the cover-up was exposed in the Seattle Post-Intelligencer, the Environmental Protection Agency (EPA) zeroed in. The agency has spent over $86 million cleaning up the town and could spend another $20 million. The EPA is in court trying to enforce a lower court ruling compelling Grace to contribute $54 million to the clean up.

Libby is a town terrorized. The death rate from asbestos-related diseases there and in neighboring towns is 40 to 80 times higher than the national and state averages. The company’s callousness was punctuated by its decision to donate mining scraps to the local high school to upgrade its running track, poisoning the sons and daughters of already suffering workers. Between 1976 and 1990, W.R. Grace declared profits of $140 million from the sale of contaminated products.

Bob Hunt and Reggie McMurdo, members of IBEW Local 768 in Kalispell, Montana, both worked at the Libby facilities in the early and mid 1970’s. Hunt, who retired after 41 years of service, worked on one of two IBEW electrical crews at Grace’s refining plant, assigned to a new operation in the winter of 1971. He recalls that problems developed with the operation of the machine, a reclaimer, that separated raw ore and vermiculite, causing the mineral to pile up.  He says, "I was standing knee-deep in the stuff all day."

About five years ago Hunt, 60, a retired inside wireman, entered the hospital for a medical problem. A doctor, listening to his lungs, sensed something wrong and referred him to Dr. Brad Black, a specialist in occupational lung disease in Libby. Black’s diagnosis – from Hunt’s x-rays and pulmonary function test–was asbestosis, revealing a 60% loss of capacity in his right lung. Since then, Hunt says, he’s been coughing even more and is constantly congested.

Hunt’s exposure to asbestos wasn’t limited to his work in the Libby plant. He remembers working in service tunnels on asbestos-insulated steam lines. He says: "I realize that there are hazards in the construction industry, but had I been advised of those hazards, I could have made an intelligent decision on whether to work there. Looking back, I wouldn’t have touched that job."

Reggie McMurdo, a former business manager of Local 768, retired after 40 years of service on a disability claim. He worked as an inside wireman on the ore separator in Libby in 1975. McMurdo doesn’t know if asbestos is the cause of his suffering from ulcerative colitis, but he knows that he had a full plate of exposure. He remembers processed ore blowing across the roads in Libby and 100 miles away, near his home in Whitefish, when railroad cars from Libby were being cleaned, releasing billows of dust. Zonolite was used a lot around the area, he says, recalling electrical jobs where it "poured out of outlets."

Vermiculite ore from Libby was processed in 60 processing plants in the United States and Canada. The report, in the Seattle Post-Intelligencer, states that workers at many of the plants became sick and died after exposure to the tremolite.

With the broad national scope of asbestos-related disease and death, some advocates for victims want to deepen the attention to the medical aspects of the disease. The Mesothelioma Applied Research Foundation points out that the National Cancer Institute’s grants to study mesothelioma averaged $2.1 million a year between 2001 and 2003, amounting to $933 per death. By comparison, cervical cancer, which has a similar mortality profile, has resulted in grants of $71.3 million, an average of $17,340 per death.

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Asbestos disease will continue as long as asbestos continues to be used in the United States. In 1989, the EPA tried to ban the substance, but was stymied by a lawsuit from the asbestos industry.

In 2001, Senator Patty Murray (D-WA) and the late Senator Paul Wellstone (D-MN) initiated Senate hearings on asbestos exposure. One year later, Murray introduced the Ban Asbestos in America Act. After the bill failed, the ban was reintroduced in 2003 as Senate Bill 1115, co-sponsored by 12 Democratic Senators and one independent. The bill failed again in the 108^th Congress.

Senator Murray will re-introduce the ban in the 109^th Congress. She says, "Asbestos is still found today in over 3,000 common products in the U.S. The United States remains the only industrialized country beside Canada that has not yet banned asbestos. More than 30 million pounds of asbestos are still consumed in the U.S. each year." The AFL-CIO supports Senator Murray’s initiatives.

Jim Tomaseski, Director, IBEW Safety Department says that asbestos related sickness will certainly rise in the immediate future based on the known abundance of asbestos in occupational exposures. "Even in a best case scenario, an asbestos trust fund will never make up for the disaster caused by companies that hid lethal consequences from their employees." But, he says, future victims must be saved.

"We owe it to the memory of Jimmy Fortner, Paul Crocker and all of our members who have died of occupational illness and injury," says Tomaseski, "to make the fight for health and safety on the job an ongoing, hands-on project for every member, while we work to secure the strongest possible trust fund for victims."

Pamphlet--Cancer Facts—Asbestos Exposure Questions and Answers, published by National Cancer Institute: http://cis.nci.nih.gov/fact/3_21.htm

Includes links to several other pamphlets and to:

• Occupational Safety and Health Administration (OSHA)

• Mine Safety and Health Administration (MSHA)

• National Institute for Occupational Safety and Health (NIOSH)

• Medicare

• Directory of State Workers’ Compensation programs

• Department of Veterans Affairs

• Agency for Toxic Substances and Disease Registry Division of Toxicology

• U.S. Environmental Protection Agency (EPA)

• U.S. Consumer Product Safety Administration

Libby Montana (film) High Plains Films: www.highplainsfilms.org/fp_libby.html

Dust to Dust (video): mbpvideo.com/dust_to_dust.html

Libby Montana: Asbestos and the Deadly Silence of an American Corporation by Andrea Peacock, Johnson Books (April, 2003)

Asbestos: Medical and Legal Aspects
by Barry Castleman, Aspen Publishers (4^th Edition-1996)

Mesothelioma Applied Research Foundation: www.marf.org

Mesothelioma Interest Group: www.imig.org

Libby Montana (film) High Plains Films...

Dust to Dust (video) - mbpvideo.com

Cancer Facts—Asbestos Exposure Questions and Answers

Mesothelioma Applied Research Foundation: www.marf.org

Mesothelioma Interest Group: www.imig.org