The Libby Fix:

By LYNNETTE HINTZE

What it is and why Montana's U.S. senators want it in the asbestos bill

The Daily Inter Lake

It's become the buzzword for Montana's senators as they discuss the merits of the proposed Fairness in Asbestos Injury Resolution Act. The Libby Fix has bounced in and out of the voluminous bill, but once again, the full measure of the Libby Fix is missing from the landmark asbestos legislation.

As the bill prepares to make its way to the Senate floor during the week of Feb. 6, Sens. Max Baucus, D-Mont., and Conrad Burns, R-Mont., are scrambling to find a way to get the complete Libby Fix back into the bill. Without full protection for Libby asbestos victims, Baucus and Burns say they'll vote against it.

The asbestos legislation is a 2-inch thick document that sets up a federally managed $140 billion trust fund for asbestos victims who meet the criteria. It's a complex funding scenario in which manufacturers would chip in roughly two-thirds of the money, about $90 billion, and insurers would be responsible for the remainder.

It's a complicated piece of legislation, acknowledged Kalispell lawyer Roger Sullivan, a lead attorney in litigation against W. R. Grace and Co. Toxic asbestos dust from Grace's former vermiculite mine near Libby is said to have poisoned hundreds of miners and their families.

And the Libby Fix is a complex addendum to a complex bill. Terms such as diffusion capacity, total lung capacity, forced vital capacity, diffuse pleural thickening and bilateral pleural disease aren't household words.

Further complicating the understanding of the Libby Fix is the recent public perception that Baucus and Burns are at odds over the Libby Fix.

Confusion about where the senators stand on the inclusion of language for Libby victims was perpetuated by an Associated Press article that stated Burns opposed Baucus' Libby fix. That article, with a headline "Burns, Baucus differ on terms of asbestos legislation," was sent over the AP wire to other daily newspapers that ran the same version of the story.

Yet both senators recently issued press releases saying the same thing: They won't vote for the asbestos bill if the final version doesn't include the complete Libby Fix.

"Many Libby residents have been under the impression that legislation specific to Libby meets their needs, but that simply isn't true," Burns said in a recent press release.

Burns' spokesman Matt Mackowiak said it's unfortunate the AP story didn't reflect that Burns and Baucus are pulling in the same direction. Burns hosted a video conference with Libby residents on Saturday to fully explain his position.

"The reality is we're both trying to help Libby," Mackowiak said.

Baucus, who coined the term Libby Fix, has worked hard to get the full addendum added to the bill, but if it isn't, he has said he'll help kill the bill.

THE LATEST problem with the Libby Fix began May 26, 2005, the last day changes could be made to the bill at the Senate Judiciary Committee level. Two crucial words - diffusion capacity - were stripped out of the Libby Fix.

"The irony is that of the thousands and thousands of words in this bill, it comes down to this crucial provision," Sullivan said. "The devil is in the details."

Diffusion capacity is a measure of the lungs' efficiency at getting oxygen into the bloodstream. Because Libby victims were exposed to tremolite asbestos, which is much more toxic than chrysotile asbestos (the most common form of asbestos typically found in building materials), diffusion capacity becomes the leading indicator of the severity of impairment, Sullivan wrote in a letter to Burns.

Sen. Tom Coburn, R-Okla., insisted that diffusion capacity be eliminated from the Libby Fix, and Sen. Arlen Specter, chairman of the Senate Judiciary Committee and author of the asbestos bill, allowed the deletion, apparently to get the bill out of committee and to the floor for consideration by the full Senate.

In his letter to Burns, Sullivan suggested that Coburn's concern "may be based on reported abuses in pulmonary function tests done in mass screenings undertaken at the behest of unscrupulous plaintiffs attorneys."

Pulmonary function testing in Libby fully complies with the American Thoracic Society standards and procedures, Sullivan added.

"Senator Coburn's 'cure' [removing the diffusion capacity test from the bill] is being prescribed for a nonexistent problem," he said, "with a very harsh result on the Libby victims."

Dr. Alan Whitehouse, a pulmonary specialist who has treated more than 700 Libby asbestos patients, wrote to Specter after the Libby Fix was altered, pointing out that diffusion capacity is not being used in the criteria for diagnosis of asbestos disease, but rather as a measure of severity.

THE BOTTOM LINE, Sullivan said, is that if the diffusion capacity test is eliminated from the bill, it disqualifies 40 percent of the Libby victims who otherwise would be eligible for immediate compensation.

"This is a harsher result than we anticipated, and it certainly is not justified by the medical literature, which full supports use of DLCO (diffusion capacity)," he said. "DLCO is the tip of the spear; it's the first indicator of impairment."

Baucus spokesman Barrett Kaiser said Baucus is "adamant" about getting the diffusion capacity test included in the bill

"There are a whole host of options about how to get that done. If he's not successful on the Senate floor, he'll attempt to get it in the conference committee. It's a lot of process," Kaiser said.

Baucus sent three of his senior staffers to Libby last week along with a representative from Specter's office, to stay in touch with Libby victims.

"There are people trying to get rid of all of the Libby fix," Kaiser pointed out. "We understand the roller-coaster it's been for Libby residents."

Kaiser reiterated that Baucus "is committed to working with Sen. Burns to get this done.

"The big question is how we get there," he said.

Even fully restored, the Libby fix "is not a 100 percent solution," Sullivan said.

"It does rough justice with certain kinds of impairment," he said.

The bill wouldn't cover patients whose lung disease has a significant obstructive component caused by smoking or asthma. However, disease caused by exposure to tremolite asbestos also tends to have an obstructive component, Sullivan said. The elimination of obstructive disorders from coverage would affect some Libby asbestos patients, perhaps as many as 5 percent to 10 percent.

If the diffusion capacity test is put back into the Libby Fix, its use doesn't open the floodgates to Libby claimants, Sullivan maintained. Language in the bill requires a strong demonstration that asbestos is the cause of the lung disease. In addition to the diffusion capacity test, the claimant would need a "diagnosis of bilateral asbestos-related nonmalignant disease" through X-ray demonstration of pleural thickening, blunting, interstitial fibrosis and other indicators caused by exposure to asbestos.

The Libby Fix would give each Libby patient at least $400,000 in compensation.

Discussion has occurred within the Senate Judiciary Committee about whether the proposed $140 billion is adequate for the life of the bill. A hearing in November focused on the Bates White study, which concluded the trust fund would face a substantial shortfall.

Sullivan and his law firm, which represents 600 asbestos victims, want a sunset provision whereby claimants could continue to sue for damages should the trust fund be unable to pay all claims. Under the proposed bill, victims would lose the right to sue asbestos companies.

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