Grace Under Pressure 

Montana’s battle over asbestos goes to a new level

The quiet town of Libby, Montana, has endured the bright spotlight of national attention this winter, besieged by teams of lawyers, scientists and journalists in their quest to determine whether a vermiculite mine run by a Maryland-based company, W.R. Grace, poisoned the logging community with asbestos over a period of 70 years.

At least 88 former miners have died from asbestos-related diseases linked to the Libby mining operations since 1960, according to court records, with estimates of the dead (including members of miners’ families) ranging as high as 192, and the dying tallied at nearly 400.

But outside of doctors’ offices and courtrooms, a different asbestos battle is raging. Under the sponsorships of Sen. Henry Hyde and Rep. John Ashcroft, Congress is fast-tracking a bill called the Fairness in Asbestos Compensation Act, which would set up a panel to mediate all of the nation’s asbestos claims, taking such cases at least temporarily out of the court system. The measure is being promoted by a group called the Coalition for Asbestos Resolution (CAR), which claims the bill would help asbestos victims get justice faster. It’s also inspired warring TV commercials, pitting Libby’s business community against the small town’s asbestos victims.

Critics say the proposal would eliminate much of W.R. Grace’s liability in Montana. In the words of the state auditor’s chief legal counsel, Janice VanRiper, the bill would “require Libby victims to stop pursuing any claims currently pending in court, wait for the establishment of a new federal bureaucracy, then step in line with over 150,000 claims currently pending nationally to get into the new federal process, which will then take another seven months at minimum. Those who survive this process (without dying first from their asbestos-related conditions and without being ‘weeded-out’), will then have a right to sue in court—a right they now enjoy immediately.” Further, VanRiper concludes that because the bill would do away with punitive damages, and contains no enforcement provision to make sure the companies pay up in the end, those who prevail in front of the new panel will end up with less money.

“The claims that it will allegedly streamline the system are cruel at best because this legislation literally pushes the courthouse steps further away from the people of Libby, Montana,” says Roger Sullivan, whose local law firm represents many of the asbestos plaintiffs. “And our experience has been that W.R. Grace does not settle claims until and unless they’re near the courthouse steps.”

Grace is not a member of CAR, but insiders say the company is a main player on the push to pass the bill. “W.R. Grace is trying to pass this with a full-court press, as far as lobbying goes,” says one Senate staffer.

“Ever since A Civil Action, the book and the movie, W.R. Grace has had to concede that its public image is just horrible,” says John Bell of the Association of Trial Lawyers of America. “They can’t be out front with this.”

Grace spokesperson Alan Stringer says that if his company is actively lobbying for the bill, he is not aware of it. But Stringer admits that Grace supports changes to the existing system.

“Absolutely we support the need for change,” he says. “I mean, it is sad that there are people out there who have legitimate asbestos-related problems who have to wait for years to reach a resolution to their problem and then they end up losing half of it to some lawyer.”

While Grace donated a relatively modest $180,000 to various Republican PACs between 1997 and 1999, and spent only $205,000 on lobbyists in that period, CAR came to the company’s rescue in Montana. Early this winter, a group of grassroots conservationists spent $75,000 on television ads featuring testimonials by Libby asbestos victims, and excoriating Montana’s Republican Sen. Conrad Burns, a co-sponsor of the bill. In one emotionally charged spot, Pat Vinion says of the senator, “He’s definitely standing up for the people that made me sick and killed my father.” In response, a CAR member, the U.S. Chamber of Commerce, spent at least double that amount on a Montana media campaign that criticized “billionaire asbestos lawyers” for “bankrolling TV ads that exploit asbestos victims in Libby.” Another TV spot features a roundtable of small businessmen and Libby Chamber of Commerce types, praising asbestos companies for “taking back their rights” with the proposed bill.

Rick Lane, a lobbyist with the U.S. Chamber, says the bill’s true measure can be found in the bi-partisan support it has received. “If those who are sick were not taken care of in this bill,” he says, “it would be a legislative non-starter. There’s no way Democrats or Republicans would support it.”

But the bill has divided Montana’s politicians largely along party lines. Along with two top Democratic officials who are running for governor, Sen. Max Baucus opposes the measure; he has been trying to secure federal funding for independent health screenings for Libby residents. State Republican politicians, including Gov. Marc Racicot, Rep. Rick Hill, and Sen. Burns (who has accepted $35,000 in donations from PAC members of the asbestos coalition since 1995), support the bill. But the ads seemed to hit home. After the commercials ran, Burns’ approval rating dropped seven percentage points, his disapproval ratings jumped 10 points. The senator then announced that he’d support amendments to the bill, including a move to strike the ban on punitive damages under some circumstances, a change that the governor suggests as well.

But Sullivan is skeptical that the measure can be amended satisfactorily.

“It would require literally a complete rewriting with a completely different, fresh start,” he says. “From soup to nuts, this bill would be a disaster for asbestos victims across the country, but most particularly for the people of Libby, Montana—because these victims have a state court system … where their claims are handled efficiently. They do in fact receive fair compensation, and these rights would be taken away.”

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