The civil action

Kalispell lawyers at forefront of Libby asbestos legal issues

Long before the story of Libby asbestos exposure and its accompanying lung-disease problems reached the national headlines, a team of Kalispell lawyers was up to its neck in related lawsuits.

The firm of McGarvey, Heberling, Sullivan & McGarvey took on its first lawsuits against W.R. Grace, operator of the now-defunct vermiculite mine at Libby, in the mid-1990s, and completed about 30 cases before Grace filed for bankruptcy in April 2001.

The Kalispell firm still has 536 cases pending and is shouldering 75 to 80 percent of the Libby legal load.

Great Falls attorney Tom Lewis is handling 122 cases. The lawsuits generally claim that Grace knew about the dangers of asbestos dust but failed to protect miners and family members exposed via the miners' dusty clothing.

At the eye of the continuing legal storm are Jon Heberling and Roger Sullivan of the Kalispell firm. While Grace's Chapter 11 bankruptcy filing put civil action on hold, it's been far from stagnant on the legal front.

"Our firm has been involved on a number of fronts," Sullivan said. "The next year will be a watershed year for defining the nature and extent of remedies that will really be provided for Libby residents."

Heberling said he's afraid Congress will pass an asbestos "bailout" bill next year. In the last two versions of the legislation, the missing link has been adequate compensation for Libby victims.

"There is no category for serious pleural disease and people die of it in Libby," said Heberling, who spends 98 percent of his time on asbestos litigation.

Spokane pulmonary specialist Dr. Alan Whitehouse addressed a group of 60 medical professionals at a Missoula conference a couple of years ago, using X-rays to show the highly progressive nature of Libby asbestos disease.

Whitehouse's paper on the subject was published this year in the American Journal of Industrial Medicine.

Whitehouse's efforts have helped dispel some of the "folklore" that exists about the nature of asbestos-related disease, Heberling said, but added it's a constant uphill battle to get insurance companies, other lawyers and other doctors on board the bandwagon for Libby victims.

Sullivan said Sen. Max Baucus, D-Mont., has been successful in getting two of three critical provisions into draft legislation. One provision reduces a five-year exposure requirement to a one-year time frame for Libby victims. The other provision designates Libby claims as exceptional because exposure involves the more toxic tremolite asbestos fibers, not chrysotile fibers.

Heberling hopes the "missing link" provision for Libby compensation can be included in the bill. Similar legislation was defeated in 1999-2000 and 2003-04 congressional sessions. The most recent version of the bill was dubbed the Fairness in Asbestos Injury Resolution Act of 2004.

Wrangling over the asbestos reform legislation continues.

A Reuters news service story last week noted U.S. companies continue to debate whether to propose a revamp of legislation to end the lawsuits or support an existing $140 billion bailout. Most analysts believe the bailout needs to be at least $200 billion, Heberling noted. Under the proposed legislation, Grace would pay significantly less than it would pay for its asbestos liabilities through the bankruptcy proceedings.

Sullivan has traveled to Washington, D.C., several times and has brought clients along on some occasions to testify on the proposed legislation.

"We've worked at great length to protect the citizens of Libby," Sullivan said. "We've worked closely with Senator Baucus. He and his staff have been working vigilantly on this."

The Kalispell legal team has been actively involved in Grace's bankruptcy proceedings.

"Libby claimants have one of a handful of seats on the personal injury claimants committee," Sullivan said.

Various constituencies make up that committee, and a seat was given to Libby representative Royce Ryan, a client of the Kalispell law firm who died this year. Ryan's daughter will continue on the committee.

"We've had a presence over the course of three and a half years," Sullivan said. "We've retained counsel back East to assist us with the bankruptcy technicalities."

Among the legal eagles assisting Heberling and Sullivan is Dan Cohn of Boston, whom Heberling describes as a "rocket scientist bankruptcy counselor."

Grace faces $5.5 billion in current asbestos injury claims; the firm has $4 billion in assets. Over the weekend, Grace filed its reorganization plan, calling for a trust of a maximum of $1.6 billion to pay victims and resolve future lawsuits.

"That's not even close to fair," Heberling added.

The Kalispell lawyers also have asserted claims against the state on behalf of asbestos victims.

Heberling argued the landmark Orr versus the State of Montana lawsuit that's awaiting a decision by the Montana Supreme Court. That case will decide whether the state owed a duty to Libby mine workers to disclose information it had about the toxicity of asbestos fibers.

Asbestos legal work is proceeding on a couple of other fronts, with Occupational Disease Act claims and claims against the railroad for exposure that occurred from asbestos dust blowing off of trains.

Once victims are diagnosed with asbestos disease, they're uninsurable, Heberling noted, and that creates huge financial stress for many families. He also fears that once the Grace bankruptcy plan is decided, the corporation's medical plan for Libby victims will disappear.

Despite the obstacles, the vast majority of clients are not vengeful or angry as they proceed with their cases, Heberling said.

"They've learned to live with it on their own terms, they're getting on with their lives," he said. "It's been a crusade for them. Libby people are good, hard-working people and they've been horribly wronged."

Features editor Lynnette Hintze may be reached at 758-4421 or by e-mail at lhintze@dailyinterlake.com