Time Bomb

Asbestos still takes its toll, but the lawsuits and victims are changing

Harold Louis has been beating the odds for a very long time.

He worked for 30 years at CertainTeed, a now-closed cement-pipe plant in North County, amid clouds of asbestos fibers. In the early '70s, he learned of a spot on his lungs -- asbestosis was what the plant's doctor called it -- but the pulmonary diseases that ravaged so many of his co-workers left Louis alone. Unlike them, he never needed an oxygen tank; indeed, he couldn't remember ever having trouble catching his breath.

Louis was luckier than other CertainTeed employees, many of whom ended their lives in excruciating pain, wasting away from asbestos-related illnesses -- workers such as Al Wiese, who spent his last days popping dozens of pills to control his blood pressure. The retired foreman's heart had enlarged to compensate for badly scarred lungs; his out-of-control blood pressure caused frequent nosebleeds so severe he'd wake up soaked in blood.

Last year, Harold Louis lost his wife, Ruth. He recently learned he has lung cancer.
Jennifer Silverberg
Last year, Harold Louis lost his wife, Ruth. He recently learned he has lung cancer.

Of the 300-or-so men Louis knew at CertainTeed, he estimates that "at least 250," like Wiese, have died from asbestos-related illnesses, including asbestosis, lung cancer and mesothelioma, a virulent cancer of the lining of the lungs. An exact number of fatalities could not be verified, but study after study of asbestos in the workplace shows how deadly exposure can be. The diseases aren't always swift killers: They can take twenty to 40 years to show up, meaning that for people like Louis, who retired in 1981, the fear never goes away.

Louis went for a routine chest X-ray and physical in December. Unlike previous visits, the doctors ordered additional tests and an examination by a heart-and-lung specialist. When he was interviewed in January, the 79-year-old was worried: "I've been really thinking about it."

In 1982, Dr. Irving J. Selikoff, the nation's top expert on asbestos epidemiology, predicted that lung cancers and mesotheliomas among asbestos workers would peak between 1998 and 2002 and that asbestos-related cancers would be part of the national landscape until 2037. Selikoff's predictions have proved to be on target, judging from the asbestos litigation that's flooded the nation's courts for the past two decades.

When their claims were first filed, workers who were dying and workers who didn't have any symptoms were part of large settlements. Back then, workers who were sick outnumbered people who were asymptomatic.

That's changed.

Now, more cases are being brought by people who, unlike Harold Louis, never directly worked with asbestos. These new litigants were "bystanders," people who contend that their exposures came from family members or industrial pollution. For-profit screening companies, testing workers and signing them up for lawsuits, have also caused a jump in the number of cases in which plaintiffs claim they've been exposed to asbestos but show no symptoms.

For twelve years, St. Louis Circuit Court handled asbestos-related lawsuits with a special docket designed to move cases along quickly. But with the shift in the types of cases, one local judge says it's time to stop giving asbestos cases special treatment. Circuit Judge Robert Dierker is proposing to eliminate the docket he now oversees -- a move that's drawing fire from defense and plaintiffs' lawyers. They say Dierker's move could throw the case-management system into chaos, meaning it may take longer to get some cases to trial and cause big scheduling headaches for the companies that must fight these cases not just in St. Louis but across the nation.

They're also certain that Dierker's proposal won't do anything to discourage people from filing cases about a problem that has cast a wider net than even Selikoff predicted.

At first, the asbestos docket was a good idea. A single case can have 80 to 100 plaintiffs and dozens of defendants. "When we started the docket, the overwhelming majority of the plaintiffs were construction-industry exposures," Dierker says. "I would say the majority were insulation workers or pipefitters, people who had undoubted direct exposure to readily identifiable products."

The special docket meant that pretrial rulings were consistent; it was like having the same umpire calling the strikes for every game during the baseball season. The possibility that opposite rulings would be handed down by two different judges sitting in the same courthouse were minimized. It also removed some of the trial-date guesswork, which is one of the biggest advantages for companies that always have a number of cases pending on a nationwide scale and for plaintiffs' lawyers who've embraced the niche practice of asbestos litigation.

But Dierker says the court-created efficiencies may have had some unintended consequences: "I suspect, but I couldn't prove it, that we may be a victim of our own success."

The industrial-exposure cases that wound up on the city's docket initially were mainly asbestosis claims, but, Dierker says, "Asbestosis claims, I think, have virtually disappeared."

That's because asbestosis is a disease that is usually seen in cases of prolonged exposure to asbestos -- years of working five days a week in an environment packed with asbestos dust. But by 1979, the EPA had finally limited the amount of floating asbestos particles workers could be exposed to, many of the asbestos-cement plants had closed down or moved overseas and the construction industry had reduced its reliance on asbestos-containing materials.

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