Asbestos bill still excluding Libby victims

The newest version of proposed federal legislation to compensate asbestos victims still excludes more than 90 percent of Libby asbestos patients.

That's according to a Spokane pulmonary specialist and Kalispell law firm that have submitted written testimony to Sen. Arlen Specter, R-Pa., regarding the Fairness in Asbestos Injury Resolution Act of 2005.

Specter, chairman of the Senate Judiciary Committee, is drafting an asbestos litigation reform bill that would compensate asbestos victims from a trust fund managed by the federal government but privately funded by the asbestos industry.

Specter is expected to have the bill completed by early February. It's the latest generation of measures initially introduced in 1999 in the wake of national news coverage that exposed widespread asbestos death and disease from the W.R. Grace vermiculite mine at Libby.

President Bush also raised the asbestos-compensation issue recently during a week of campaigning for change in the way asbestos lawsuits are handled.

"It looks as if it [the legislation] is postured for movement this year," said Roger Sullivan of the McGarvey, Heberling, Sullivan & McGarvey law firm. "The fundamental problem continues to be there's no recognition in the bill of the fact we're dealing with tremolite asbestos, and the eligibility criteria is still based on chrysotile asbestos."

The Kalispell firm took on the first lawsuits against Grace in the mid-1990s and still has well over 500 lawsuits pending against the company. Sullivan, who along with attorney Jon Heberling is shouldering the lion's share of the Libby legal work, said they've reviewed the draft legislation and "have concluded that passage would be disastrous for the people of Libby."

"It is important to understand that the bill continues to exclude Libby asbestos victims in a number of insidious ways," Sullivan wrote to Specter on behalf of the law firm. "The bottom line remains the same; over 90 percent of Libby claimants will receive nothing."

Dr. Alan Whitehouse of Spokane, whose caseload includes some 500 Libby patients, said the key reason for the bill's exclusion of Libby victims is that they have pleural disease caused by the more damaging tremolite asbestos, not interstitial disease caused by chrysotile asbestos. The legislation's medical criteria are based on diseases caused by exposure to chrysotile asbestos.

Specifically, the definition for pleural disease in the bill requires "diffuse pleural thickening, or bilateral pleural disease of B2 (pleural thickening of 5 millimeters or more) or greater." But many Libby patients die before pleural thickening reaches 5 mm, roughly the thickness of an orange rind, Sullivan said.

"This criteria alone excludes over 90 percent of the Libby patients," he said.

Whitehouse pointed out that asthma patients and ex-smokers are unfairly classified in the latest bill draft as well.

"The bill is very hard on ex-smokers who have some smoking disease along with the asbestos disease," he said. "They are classified at Level 2 (mixed disease) even if they are dying of asbestos disease."

Libby pleural disease is progressive and deadly with or without a history of cigarette smoking, Whitehouse added.

The legislation defines five levels of asbestos disease, with Level 1 as unimpaired, and Level 5 the greatest level of impairment.

Sen. Max Baucus, D-Mont., was successful in getting a provision in past proposed legislation that exempted Libby residents from strict medical and asbestos exposure criteria to qualify for compensation. The provision is also in the latest bill draft and waives exposure requirements for those who lived or worked within a 20-mile radius of Libby for at least 12 consecutive months before Dec. 31, 2003.

Even though exposure requirements are lifted, however, the bill draft still doesn't address the medical criteria specific to Libby residents, Sullivan said.

The legislation states that Libby claimants can opt to have their claims designated as exceptional medical claims and referred to a physicians panel. Sullivan sees the provision as a fundamental defect in the proposed legislation because even if the panel determines a claimant is entitled to a certificate of medical eligibility, there's no guarantee of compensation.

Baucus said he will vote against a bill if it does not include provisions for Libby residents, namely, a compensation "safety net" to ensure Libby residents get the award they deserve and a provision to ensure that Libby claims receive prompt consideration by expert medical panels and the trust administrator.

Baucus voted against the 2003-04 version of the bill because he wants the Department of Labor to follow compensation level recommendations set by medical experts. He also wants a guarantee that Libby patients who are at either a Level 3 or 4 asbestos exposure will receive at least $400,000 in compensation. The earlier proposal would have entitled asbestos claimants to only $85,000.

In a press release issued Tuesday, Baucus said passing balanced asbestos legislation, with a good "Libby fix" included, is essential because Grace may not be able to compensate Libby residents following the company's filing for bankruptcy.

Sullivan said he's pleased with Baucus' continued commitment.

"We're very pleased with the announcement that Sen. Baucus is continuing to work hard to change the legislation and is committed to ensuring that the people of Libby will get the compensation they need and deserve in the new bill," Sullivan said.

Sen. Conrad Burns, R-Mont., has also weighed in on the asbestos legislation, urging Libby residents to give him their input. He said he's also concerned about medical diagnosis criteria that would exclude certain Libby residents. The size of the trust fund and its duration also need to be pinned down, he said in a recent news report.

The debate has been ongoing whether to revamp legislation to end the asbestos lawsuits or support a $140 billion bailout. Most analysts believe the bailout needs to be at least $200 billion, Heberling noted in an earlier article. If last year's bill had passed, Grace would have paid significantly less than it would pay for its asbestos liabilities through the bankruptcy proceedings.

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