ASBESTOS VICTIMS THREATENED ORRIN HATCH BILL WOULD PROTECT INDUSTRY

Publication: THE SUNDAY GAZETTE-MAIL
Published: 07/06/2003
Page: 1A
Headline: ASBESTOS VICTIMS THREATENED ORRIN HATCH BILL WOULD PROTECT INDUSTRY
Byline: PAUL J. NYDEN

pjnyden@wvgazette.com

Otto "Sonny" Boles retired in 1996, after working more than 30 years installing and replacing asbestos insulation in places like the John Amos power plant and DuPont's chemical plants.

"He watched half a dozen of his friends die of mesothelioma," Karen Boles said.

During all those years, Karen thought little about how breathing asbestos fibers can cut someone's life short.

"I wouldn't be nearly as interested in this as I am today if my husband did not get mesothelioma," Karen said. "We had our heads in the sand."

Before he died, Otto Boles filed a lawsuit to recover damages for his early death. If Congress passes a new bill introduced by Sen. Orrin Hatch, R-Utah, the Boles family might have to wait years to get anything at all.

Upbeat to the end, Boles had marshaled his strength for a legal deposition last Nov. 25. "I am going to beat it," he insisted. "We are going to beat it."

One week later, Otto Boles died. He was 66. He left behind Karen, five children and seven grandchildren. Otto and Karen were married 42 years.

During his final days, Otto struggled to drink Ensure and Power-Ade. He worked hard to swallow pills to relieve his pain.

Today, Karen struggles to go on. "The hardest part is our son, who is disabled," she said.

Otto "Champ" Boles III was born with cerebral palsy. Now 41, Champ has never been able to walk by himself.

When he was alive, Sonny ran Camp Galahad with his wife - a weeklong summer camp in Clay County for children with special needs.

Asbestos diseases typically have a long latency period. A worker might contract mesothelioma, but not know for 20 or 30 years, or even longer.

When mesothelioma is diagnosed, its victims usually have less than 18 months left to live. Caused by exposure to asbestos, mesothelioma is a rare form of cancer that invades cells in the membranes that line the chest and abdominal cavities.

Mesothelial cells produce a lubricating fluid that enables internal organs to move without irritating nerves. Mesothelioma is not lung cancer, but often causes severe respiratory problems.

"He began to cough in October 2001," Karen Boles remembers. "His doctor thought it was pneumonia. He went into the hospital. They did an MRI and other tests and, by November, he was diagnosed with mesothelioma."

Boles died 13 months later.

As a young man, Boles was an all-state wrestler at Parkersburg High School before graduating from Greenbrier Military School in 1956. He played football for two years at Iowa State University in Ames, Iowa, then left for a good-paying job in the insulating industry back home.
He had no idea the chance he would be taking with his health.

"I am absolutely livid about the cover-up of asbestos since the 1930s," said Erick Boles, his 38-year-old son. "How can you not tell people? The blatant neglect of people's health just amazes me.

"There went my hunting buddy, my fishing buddy, my best friend," said Erick, who is a truck driver for Coca-Cola. "Workers are just a number. No big deal."

The FAIR Act
On May 22, Hatch introduced the Fairness in Asbestos Injury Resolution Act. If the FAIR Act of 2003 passes, it will mean:

- More than 200,000 lawsuits now pending in federal and state courts - like the Boles lawsuit -will be dismissed immediately.
- No one suffering from asbestosis or mesothelioma could ever file another lawsuit in any state or federal court.
- A new appointed federal court system would handle all future claims.
- A new "compensation schedule," not a jury, would determine how much each asbestos victim receives.
- Victims or their survivors cannot appeal any decisions made by the new court.
- Asbestos manufacturers and their insurance companies will make mandatory annual contributions to the new compensation fund. But these "contributions" will be much lower than settlements already made by many major asbestos manufacturers.

Eric D. Green, a Boston University law professor, told the Senate Judiciary Committee on June 4 that his major "concern about the [FAIR] Act is that it does not provide any assurance that all claims that are eligible for compensation will get paid."

Dr. Mark A. Peterson, who has studied asbestos litigation for more than 20 years, was a founding member of the RAND Corp.'s Institute for Civil Justice.

Testifying to the Senate Judiciary Committee on June 4, Peterson said 25 million workers had already been exposed to asbestos in major manufacturing industries by 1980, when manufacturers finally admitted asbestos had major health risks.
Millions more workers were exposed after 1980.

"Diseases caused by these exposures have created a public health catastrophe," Peterson said. "By now, 300,000 workers have died because of their asbestos exposures. Almost as many more will die over the next three or four decades. Millions more exposed workers have or will develop asbestosis or pleural disease."

Today, survivors of a mesothelioma victim receive between $2 million and $3 million in pretrial settlements or jury verdicts. Victims of asbestos-caused lung cancers typically receive about $1 million.

Unlike many lawsuits, asbestos lawsuits usually name two-dozen defendants - companies that made asbestos and companies that hired workers like Sonny Boles.

Many of those companies, like Johns-Manville, knew about health risks posed by asbestos fibers as early as 1929 and 1930, when injured workers first filed lawsuits. But they did nothing.

When Boles gave his deposition in his St. Albans home seven days before he died, lawyers representing 26 different companies were there, including Union Carbide, General Electric, Owens-Illinois, Westinghouse Corp., Shell Chemical, Allied Chemical, Goodyear Tire & Rubber, Westvaco, Armco Steel, Elkem Metals and FMC Corp.

Who loses?
If Congress passes Hatch's bill, all pending asbestos cases will come to an immediate halt. All appeals will be tossed out. All jury verdicts will be overturned.

With a trial scheduled for September before a panel of judges in Wheeling, asbestos companies might have been willing to offer Karen Boles a settlement in August. If the bill passes, she might have to wait for years.

"With this bill before Congress, I don't know what motive [the asbestos companies] will have now to settle the case," said William Schwarz, her attorney.

And under that new law, payments made to survivors will be a fraction of what many get under the current system. Financial awards will be held to a maximum of $750,000, even if the victim was a father in his 40s with four young children.

And that $750,000 will get cut by newly required deductions - deductions for health insurance or Medicare payments, deductions for workers' compensation benefits and deductions for death benefits from a union or private life-insurance policy.

For example, a widow who gets a $250,000 benefit from her husband's union would see that $750,000 award immediately cut to $500,000.

Critics of the Hatch bill, such as the Association of Trial Lawyers of America, say that more than 150,000 people who now receive benefits will be cut off from all future payments.

Companies argue that they are in deep financial trouble.

In the past three years, more than 20 companies that manufactured asbestos products filed for bankruptcy, including W.R. Grace, Owens Corning, Federal Mogul, United States Gypsum and Babcock & Wilcox.

The U.S. Supreme Court has called litigation over asbestos diseases an "elephantine mass."

Lawrence Tribe, a Harvard law professor, testified before Congress last month, urging members to pass Hatch's legislation. Tribe said "rough justice" is needed to eliminate a problem plaguing the economic health of so many major companies.

Schwarz said, "That justice will only be rough on people like Mrs. Boles."

Who wins?

"When you strip away all of the gloss and get down to the details, what this really does is shift billions and billions of dollars from widows, sick people and workers to Halliburton and other companies that mined, milled, processed, sold and installed asbestos for years," said Charleston attorney John Skaggs, who represents injured workers.

The Halliburton Co., formerly headed by Vice President Dick Cheney, could be one of the biggest winners.

Late last year, Halliburton agreed to settle 200,000 lawsuits for $4 billion in cash and company stock. The lawsuits were filed against two Halliburton subsidiaries: Dresser Industries and Kellogg Brown & Root.

Jim Wicklund, a Banc of America Securities analyst, told Reuters news service last month that Hatch's law would reduce Halliburton's liability from $4 billion to $450 million. That's a savings of $3.55 billion for the world's second-largest oilfield services company.

Other asbestos makers also will reap huge savings.

Armstrong World Industries, which pledged to pay $1.8 billion into trusts for injured workers, will pay just $600 million, according to Eric Green. Babcock & Wilcox will see its payments drop from as much as $500 million to $283 million.

On Thursday, hearings will resume before the Senate Judiciary Committee. Some are raising questions about Hatch's bill, including Sens. Arlen Spector, R-Pa.; Patrick Leahy, D-Vt.; and Ted Kennedy, D-Mass.

Sen. Patty Murray, D-Wash., is one of the most outspoken critics. "If Congress is going to prevent any future lawsuits, then Congress must try to prevent any more asbestos casualties, by banning the use of asbestos," she told the Senate Judiciary Committee last month. "Why on earth does our government allow thousands of tons of asbestos to continue to be put into consumer products every year? Why does our government still allow asbestos products to be imported?

"If we are going to limit the rights of asbestos victims," Murray said, "we have an obligation to prevent future victims, by banning asbestos."

To contact staff writer Paul J. Nyden, use e-mail or call 348-5164.