The late night comics roll their eyes talking about settlements of class action suits where the plaintiffs get pennies and the lawyers walk with millions. For many, this legal larceny engenders the use of horse whips or water boards on the distinguished members of the bar.
But up close, there is very little funny about this practice.
Nevertheless, it's happening again. This time, the subject of the litigation is invisible fibers of asbestos that contaminates hundreds of millions of tons of vermiculite insulation stuffed in the walls and ceilings and attics of homes throughout North America.
W.R.Grace, which mined and sold potentially lethal Zonolite insulation, has agreed to pay $6.5 million Canadian under a settlement proposed by lawyers named by the Canadian version of the U.S. bankruptcy court. Court documents show half of the money -- $3.25 million -- will be paid to the Canadian lawyers who put the deal together, including a lawyer in Delaware who gets $360,000 for filing the papers with the U.S. bankruptcy court.
What this means is that if 400,000 Canadian homeowners -- the would-be plaintiffs in this class action suit -- sign up for money to decontaminate their homes, they could each pocket $8.12. Typically, asbestos removals from a home can cost in the tens of thousands of dollars because many contractors view the removal of hazardous material as a pot of gold.
Tremolite asbestos fiber
Meanwhile, south of the border, our government estimates that 15 million to 35 million homes contain dangerous material from the now closed vermiculite mine in Libby, Mont.
The real tragedy is that very few homeowners on either side of the border have a clue that their homes may be contaminated. Even fewer know that a deadline of Oct. 31 has been set for homeowners to notify the bankruptcy court that their homes are contaminated.
EPA promised to get the warning out years ago.
In attempting to declare a "public health emergency" in Libby, the agency promised to "blanket" television shows and the nation's hardware and home improvement chains with warnings about Zonolite. When the White House blocked the emergency notification, our environmental protectors in EPA headquarters forgot about the warning.
So today, most homeowners have no clue of the risk they face when their kids play in the attic or mom hooks up an exhaust fan or the cable guy strings his wire.
In repeated tests, government scientists and Grace's own experts have shown that the slightest disruption of the fluffy, nickel-size pieces of black, tan and gold tinted Zonolite released millions of the asbestos fibers that have caused asbestosis, mesothelioma and lung cancer.
Raven Thundersky
If you question the toxicity of the asbestos that has decimated Libby, just check the town's cemetery or talk to Raven Thundersky in Winnipeg. Her parents and three sisters died from cancer and asbestosis from exposure to Zonolite in the family's government-built home on a remote First Nation reservation at Poplar River, Man.
In Washington state in 2000, Spokane lawyer Darrell Scott filed the nation's first Zonolite insulation suit on behalf more than 100,000 homeowners. But his efforts -- to get Grace to publish warnings of the danger -- and those of scores of other lawyers suing on behalf of thousands of people across the country sickened or killed from exposure to the Grace product were derailed when the 150-year-old company filed bankruptcy in April 2001.
This is an appropriate point to urge you not to set up the "Kill the lawyer" billboards.
While there obviously are greedy ones out there that embarrass their own profession, we would be worse off without the efforts of many lawyers. It's painfully apparent that government will not or cannot protect its citizens from corporate shenanigans. Lawyers – private practitioners, those with advocacy groups and even a bunch carrying federal ID cards - make them pay attention.
Think about it. Flavor manufacturers knew that the diacetyl in their butter flavoring was sickening their own workers and those in microwave popcorn plants. Most did nothing until they were dragged into court.
The same can be said for slipshod pharmaceutical producers, makers and users of benzene and scores of other chemicals and, of course, our friends in Columbia, Md., W.R. Grace.
The tens of thousands of pages of Grace documents, on which the P-I based its investigation and which the Justice department used to support the nation's largest environmental crime indictments, showed that Grace knew their miners and their families in Libby and their workers at hundreds of vermiculite processing plants were at risk. And kept it secret.
Nothing happened until a small law firm in Montana began suing the worldwide company on behalf of people who died because of its actions.
A federal grand jury issued criminal indictments against Grace and seven of its top bosses. It is hoped that the trial will finally begin in late winter.
While some of these lawyers are actual heroes, so are many of EPA's frontline troops – the emergency responders, investigators, toxicologists, physicians and scientists. They have busted their tails since the Seattle P-I first reported on the tragedy in Libby in 1999. Many stood up not only to Grace and the politicians in their pockets, but also to the political appointees in their own agency and the White House itself.
Some EPA regions are more involved than others. The regional offices in Denver and Seattle led the way. Chicago was right in the midst of it with its investigation of Grace's large Zonolite expansion plants in Minneapolis.
Even today, the Minneapolis Star Tribune reported that the EPA gang from Chicago is back in town testing for asbestos in the air and dust in 30 to 50 homes. Between 2000 and 2004 EPA had removed contaminated soil from the yards of 268 homes near the plant.
Terry Thiele, who lived around the corner from the plant during his childhood, told the paper that he and his siblings and mother all have asbestosis to some degree and that his father died from mesothelioma.
"My whole family has lung X-rays that look like patchwork quilts because of all the scarring" from the fibers, Thiele told Star reporter Tom Meersman.
In Spokane, Scott told me: "People still don't know. There are probably 120,00 to 140,000 homeowners in Washington alone with Zonolite in their homes and most don't know it."
He is concerned that the Oct, 31 deadline imposed by Grace will pass unknown to millions across the country. He has asked Grace bankruptcy Judge Judith Fitzgerald to consider his class action filed in 2000 and to allow him to file on behalf of tens of thousands of Washington homeowners who own or occupy property containing the Zonolite insulation.
Fitzgerald has yet to rule on his motion.
Here are some links with more information:
Here is the court's notice of the October deadline.
This is EPA's page on asbestos and here's more than anyone would want to know about vermiculite.
NEW For those of you who asked for a phone number of a human who might know something about the issue, for years, EPA's Public Information Center in Seattle at (206) 553-1200 has been fielding questions on Zonolite insulation and the same vermiculite in garden products and potting soil.
