For Victims of the Hidden Killer Asbestos, a Manufacturer's Settlement May Prove to Be Too Little, Too Soon
For decades heat-resistant asbestos was the very foundation of the Johns-Manville insulation empire. Then in the early ’60s, asbestos was proved to cause lung cancer and an excruciating, malignant tumor of the lung lining called mesothelioma. The most seriously exposed Americans were shipyard and construction workers, who had inhaled large quantities of the fibrous material during and after World War II. Investigative journalist Paul Brodeur, who has written three books on the subject, including Outrageous Misconduct: The Asbestos Industry on Trial (Pantheon, $19.95), says as many as 2.5 million Americans could fall victim to asbestos-related diseases.
In 1982, already facing 17,000 lawsuits by victims or their families, Manville filed for reorganization under Chapter XI of the Federal Bankruptcy Code. The decision, says Brodeur, which has allowed the company to continue operating without settling the claims against it, was a flagrant attempt to escape responsibility for compensating all the company’s victims. Manville has proposed a $2.5 billion compensation plan, but it has not yet been accepted by the court or claimants. (There are at least 15 other asbestos manufacturers involved in litigation.) Though the U.S. Environmental Protection Agency recently banned the use of asbestos over the next 10 years, Brodeur says the deadly legacy of its use in millions of offices, schools and homes is just beginning to become apparent. He discussed the subject with Associate Editor Jim Jerome.
What is your objection to the Manville settlement plan?
The sum the company is offering over a 20-to-30-year period is predicated on an assumption that there will be only 100,000 future claimants. This would allow for about $25,000 per victim, which is peanuts compared with what it would have cost Manville to go to court. The up-front cash and insurance—about $800 million—will be gone by 1991, and about $250 million will go for [plaintiffs’] lawyers’ fees.
How many victims will, in fact, bring suit against Manville?
Today there are 34,000 claimants, yet some experts believe up to 2.5 million people [one out of every 100 Americans] will at some time show abnormal X rays reflecting asbestos-related disease. As many as 200,000 of these people may be wives and children of heavily exposed asbestos workers who have come home with fibers clinging to their hair and clothing. All told, 300,000 people are expected to die of asbestos-related cancer during the next 30 years. Historically, one in four afflicted workers has brought suit, so you can see that at least half a million people could someday bring claims against Manville. In 20 years this could leave several hundred thousand people twisting in the wind without any hope of compensation.
What impact will this $2.5 billion settlement have on Manville?
The company is not going out of business. This is a reorganization, not a liquidation. Manville is proposing the creation of a trust to settle the claims and a separate operating company for its ongoing divisions such as forest products and building materials. It is taking what I consider fraudulent refuge in the bankruptcy code, in order to avoid paying full and fair compensation to its future victims.
You claim that lawmakers and industry are attempting to deprive Americans of their right to sue the manufacturers of defective products.
Yes. New York, for example, has an archaic statute of limitations that, incredibly, prevents anyone afflicted by toxic poisoning from bringing a suit more than three years after his last exposure. The catch-22 is that asbestos-related diseases usually take about 20 years to develop. This law has left between 3,000 and 5,000 victims or widows with no legal recourse. Elsewhere various lawmakers, including Gary Hart of Manville’s home state of Colorado, have supported bills designed to bail the asbestos industry out of its legal and financial problems.
How great a danger does asbestos pose in our schools?
There are now 13 million kids and close to two million teachers and custodians in some 31,000 schools built in the ’50s and ’60s in which asbestos was used to insulate pipes or in acoustical ceilings. Under the Asbestos School Hazard Abatement Act of 1984, the EPA is responsible for overseeing a program to inspect schools and remove asbestos. But the agency has already fallen way behind schedule and has at times failed to impose proper precautions and procedures in the removal. As a result, in some instances, poorly trained workers have stirred up asbestos dust and left behind levels far greater and more hazardous than those they were hired to abate.
Where else is there a serious problem?
Between 1955 and 1972, asbestos was sprayed as a fire retardant on the steel girders of high-rise buildings. The practice has been banned since then, but asbestos is estimated to be present in 733,000 commercial and residential buildings across the country. This includes its use as pipe and boiler insulation, in floor tiles, wallboard and acoustical ceilings. The problem for the future is when these buildings are demolished—trillions of asbestos fibers will be released into the ambient air if the demolition is not conducted properly.
Are office workers in those buildings at risk today?
The windows in modern buildings are often sealed, so cooling and heating systems use the plenum—the space between the ceiling and the floor above—as a return-air duct. These plenums are often grossly contaminated with asbestos dust from the original spraying. Apparently, nobody wants to deal with the problem because of the economics of removal and decontamination, which would cost billions.
Is asbestos found in many homes?
Asbestos is ubiquitous in America and can be found in millions of homes. In Orange County, Calif. alone, 200,000 private homes were found to contain forced-air heating and cooling systems with asbestos-lined ducts. And the Consumer Products Safety Commission found asbestos in nearly 30 percent of homes surveyed at random in the East in 1983.
How concerned should homeowners be about this threat?
No one has any idea what kind of exposure is sufficient to cause disease. In some homes, clearly, the risk of exposure is zilch. But if the kids are downstairs on a swing hung from boiler pipes and stuff is flaking down on their heads, you have an exposure. Asbestos fibers that “fry off,” those that become airborne, are invisible and can be inhaled. They are a carcinogen once they enter the lungs.
Are there any uses for which asbestos is still needed?
The industry claims it is essential in brake linings and clutch facings. But the Swedes have banned asbestos and successfully used substitute materials.
Has the use of asbestos in automobiles had any health repercussions in the U.S.?
Yes. Cases against Raymark, the manufacturer of clutch facings and brake linings, have resulted in more than $10 million in jury awards to workers stricken with mesothelioma. Experts predict 20,000 asbestos-related deaths among mechanics during the next 40 years.
What is the best way of preventing another environmental catastrophe like this in the future?
Corporations have all the legal rights an individual does, but you can’t put a corporation in jail. To hold manufacturers criminally accountable for the hazardous materials they produce would be the greatest preventive weapon in making the workplace—and the air and water we use—safe for all of us. And there may be a trend in this country. In 1983 a man died after breathing deadly cyanide fumes while working for a silver reclaiming company in Chicago. A judge found three of the company’s executives guilty of murder for knowingly exposing this man to hazardous fumes and for removing warning labels from the cyanide tanks. The men were sentenced to 25 years in prison; their conviction is being appealed.
What effect will the recent EPA ban have on asbestos use?
Not much because there already is a ban. One reason why: In January a federal jury in Greenville, S.C. ordered W.R. Grace & Co. to pay $8.4 million to the city of Greenville. Grace had contaminated city hall with asbestos during construction. The cost of removing it was $6.4 million, and another $2 million in punitive damages was tacked on because Grace was aware of the hazard. At this point no architect or builder with half a brain would use asbestos again.