Much at stake for those with asbestos-related illnesses

Bar association will consider proposal this week to limit lawsuits

By Carol Smith, Seattle Post-Intelligencer

Edna Oikle slumps against the flowered sofa in her sister's trailer home about an hour southeast of Tacoma. A 30-foot-long stretch of plastic tubing snakes across the floor, delivering a steady flow of oxygen to her asbestos-ravaged lungs.

Gentle and unassuming, Oikle betrays little emotion as she talks about the life she might have had in her retirement years, the walks through the mall with her daughter, the ability to play with her four great-grandchildren, the chance to rove the country in a camper with Jerry Oikle, her husband of 55 years before he died in June.

Edna Oikle, 75, a former resident of Libby, Mont., suffers from asbestos disease and has been on oxygen for three years.

Instead, her life is largely confined to a chair or sofa. She needs full-time care from relatives. Without her oxygen, she gets dizzy and gasps for breath.

But according to new medical standards for asbestos disease proposed by the American Bar Association, Oikle isn't sick. At least not sick enough to sue the company that made her that way.

Oikle, 75, is one of more than 1,000 residents and former residents of Libby, Mont., who show signs of asbestos-related disease, but who would likely be prohibited from recovering damages from W.R. Grace & Co., whose mining operation spewed asbestos-laden dust over the town for decades, if the new proposal passes.

The American Bar Association, which is meeting this week in Seattle, expects to debate the controversial issue and vote on it tomorrow.

The ABA proposal spells out in great detail what medical criteria a patient would have to meet before being considered sick enough to sue. It would not bar people with cancer from suing. If it passes, the bar association will use its lobbying clout to push to include the same medical criteria in federal legislation.

According to a report by the ABA's Commission on Asbestos Litigation: "The Commission believes that Congressional action on asbestos litigation is urgently needed."

The continuing onslaught of cases threatens to overwhelm the legal system and force more companies into bankruptcy, ABA President Alfred Carlton Jr. said. "There is a bipartisan consensus that something needs to be done." More than 600,000 cases are currently in the court system, and dozens of companies, including Grace, have filed for bankruptcy.

The intention of the ABA proposal is to ensure that the statute of limitations for suing starts when a person is really sick, not when he or she first discovers signs of exposure, Carlton said.

Asbestos can cause a variety of lung diseases and cancers, but most take decades to develop. And not everyone develops a serious or fatal illness after asbestos exposure.

Proponents of the new policy, including the Alliance of American Insurers, say it is designed to restrict lawsuits to those who are demonstrably ill from asbestos, conserving scarce funds for the truly sick. They charge that many of the asbestos suits that have clogged the courts and forced companies into bankruptcy were by people who never got sick even though they may have been exposed to asbestos years ago.

But representatives of the Libby victims say the proposal actually harms some of the very people it purports to help.

The diseases caused by the type of asbestos found in Libby are significantly different from diseases caused by other forms of asbestos, said Roger Sullivan, an attorney who represents about 400 Libby victims.

"The cruel irony is there are people who are suffering from Libby tremolite asbestos disease, who are seriously ill with significant medical expenses, who would nevertheless be precluded from initiating suit or receiving payments," Sullivan said.

The type of asbestos found in Libby, called tremolite, is especially deadly, according to Dr. Alan Whitehouse, a Spokane doctor who has treated more than 500 patients with lung disease from Libby.

In a letter to the ABA, Whitehouse argued that the standard should be changed to account for the situation facing the Libby victims.

"Tremolite asbestos disease is decidedly different from chrysotile asbestos disease," he said.

Chrysotile, a more common form of asbestos, was used for years in naval shipyards and in products such as brake linings.

Tremolite is more than 10 times as carcinogenic as chrysotile, and hundreds of times more likely to produce mesothelioma, a rare and extremely lethal cancer of the lining of the lungs, Whitehouse said.

Tremolite is also more likely to produce a debilitating disease that looks different from chrysotile-induced disease on X-rays and in lung-function tests.

Whitehouse said even many of his patients with the most severe lung disease would not qualify based on the proposed ABA standards.

The American Trial Lawyers Association and the AFL-CIO also oppose the proposed standards. Sullivan and his contingent from Libby have asked to address the ABA delegates before the vote.

The technicalities don't matter much to Oikle. She just doesn't want anyone else to go through what her family has endured.

The couple met at the Sunshine Biscuit Co. in Spokane, where Edna bagged candy and Jerry Oikle rolled the peanut brittle.

Jerry worked at the Grace mine during the early 1950s. Edna used to shake the dust out of his clothes when she washed them.

Attracted to the small rural community, Jerry and Edna moved their family back to Libby in 1966, setting up their household in the shadow of Zonolite Mountain, the mine that produced tons of vermiculite before Grace shut it down in 1990.

Vermiculite from the mine was milled into products ranging from attic insulation to garden additives and was shipped all over the country, extending exposure to people who worked in the expansion plants that manufactured products from the raw ore.

Dust from the mine permeated the Oikles' lives.

"It just blew all over," Oikle said. "We didn't know it was dangerous."

She used to shake the powdery residue off the peonies and pansies she grew in her small flower garden. It was a nuisance then.

Today it is a killer. Jerry died in June of a heart attack after suffering through lung cancer caused by asbestos. Edna misses his tender gestures. "The night before he died, he couldn't hardly walk," she said. "But he still put the covers over me in bed like always. That was the last thing he did."

Gayla Benefield, who knew the Oikles when they lived in Libby, said it's a heartbreaking story that she hears over and over.

"They simply worked all their lives and wanted to enjoy their retirement," she said. "It's a typical Libby story."

Benefield knows. Both her parents died of asbestos-related disease, and now she and more than three dozen of her extended family members show signs of it as well.

"It certainly isn't fair to have people of Libby bear the burden of whatever abuse of the system there might have been," Sullivan said.

"The people we've filed suit for are sick and dying through no fault of their own."

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