Parents suing University of Montana after asbestos found in childcare facilities

(Daily Montanan) A group of parents and a grandparent whose toddlers attended childcare facilities at the University of Montana have alleged UM was negligent when it delayed alerting them to a possible asbestos exposure in late 2018 in a building where their children played and deprived them of making informed decisions about how to keep their children safe.

The university has denied the claims in response to the lawsuit. 

“Despite the university’s knowledge regarding the location and potential dangers of asbestos exposure, it made the decision to place the infants, toddlers and young children attending the Associated Students of the University of Montana Child Care Centers in buildings known to contain asbestos,” said the plaintiffs. “The university then inexplicably ignored its own policies and procedures regarding the treatment, detection and monitoring of asbestos in these buildings known to contain asbestos.

“As a result, the children attending the ASUM Child Care Centers were exposed to extremely high levels of asbestos.”

UM closed two childcare facilities in early 2019 and temporarily moved children to another location. The Missoulian reported in September 2019 the flagship spent $700,000 renovating the childcare center in McGill Hall and reopened a consolidated operation there early that semester.

The case against the State of Montana and UM was filed in May 2020 and has been making its way through Missoula County District Court since. Seventeen adults filed the case on behalf of themselves and their minor children following the detection of asbestos, and a possible disturbance, in McGill Hall in late 2018, and subsequent closures in 2019 of two childcare facilities, including one in a separate building. 

In its answer to the lawsuit, UM admits that it had been aware of asbestos in certain locations on campus, including McGill Hall and Craighead where the childcare facilities operated, but it denies allegations that it was negligent and said it is not to blame for any alleged injuries. UM also argues that the plaintiffs misstate evidence and contends children were not exposed to asbestos, and the substance “was not found at unsafe levels in the daycare facilities in 2019.”

“Defendant’s alleged actions and/or inactions were not a substantial factor in causing any injuries allegedly sustained by plaintiffs or any damages allegedly resulting therefrom,” the university lawyers said.

The plaintiffs note in the lawsuit that UM acknowledges that signs of asbestos-related disease “usually do not appear for 10 to 40 years.” As a result of the latency period, the complaint said parents continue to experience “extreme feelings of worry, fright, disappointment, grief and anger” because they may have unknowingly “exposed their children to a potentially lethal environment,” and they ask in part for medical monitoring for diseases related to asbestos.

In a separate asbestos case in Montana, a Cascade County jury awarded last week an historic $36.5 million verdict after the Montana Supreme Court found that Maryland Casualty Co., which insured Libby vermiculite mill operator W.R. Grace Co., had a duty to “use reasonable care” and warn workers of the dangers of the substance in their workplace.

“…Not only did MCC fail to warn the workers, but it took affirmative actions to conceal this information from the workers, effectively increasing the risk of additional harm to mill workers from further asbestos exposure,” said the Montana Supreme Court in the decision that preceded the jury award.

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The lawsuit against UM alleges parents belatedly learned their children were playing in a building where asbestos may have been disturbed — and asbestos fibers were found in the daycare near a device designed to circulate air through the building. UM eventually closed the childcare center in McGill Hall, and, later, it closed a separate childcare facility, Craighead, after parents called for asbestos testing there as well, the complaint said.

In December 2018, UM discovered “a likely disturbance of and exposure to asbestos in McGill Hall,” the lawsuit said. The complaint said the discovery came after employees complained about noise coming from a fan, and a facilities technician noticed white powder the fourth or fifth time personnel worked on the fan in a space above three offices. The substance was determined to be asbestos, the complaint said.

(A former occupant of one of those offices, Barbara Koostra, is one of the plaintiffs in a separate gender discrimination lawsuit against UM. In that Title IX complaint, Koostra alleges in part that she raised numerous concerns in fall 2018 about air quality in McGill. UM attempted remedies but found no solution and ultimately vacated McGill Hall due the extent of the asbestos problem first discovered in her office, said the lawsuit. Koostra alleges she complained to the dean about work conditions in November 2018 and was soon informed by the provost that her contract would not be renewed. UM has defended its record on gender equity, and it describes the allegations in the possible class action case as “false and inflammatory.”)

In the childcare case, UM “immediately quarantined” the three offices it believed were in closest proximity to the asbestos exposure, the lawsuit said, but it failed to alert department leaders in McGill, faculty, students, or parents or teachers of the childcare center at the same time.

“The university failed to alert the directors, teachers or staff in ASUM childcare of the exposure or the parents of the children attending the facility until over a month later,” the complaint said. “Instead, the university conducted tests for asbestos in the childcare facility. The test results indicated excess concentrations of asbestos throughout the ASUM childcare at McGill Hall. Asbestos fibers were found in excessive amounts on children’s toys in the play area, on their tables where they played, worked, and ate, in their kitchen, and on the floor where they played, crawled and slept.”

After UM told parents about the exposure at McGill Hall, parents demanded the university test another ASUM childcare facility in Craighead, and “results again indicated excessive amounts of asbestos,” the complaint said. Two days later, it said the facility was also closed.

“The EPA’s threshold for the required cleanup of asbestos fibers is 5,000 fibers per square centimeter,” the lawsuit said. “When the university tested McGill Hall for asbestos it found asbestos fiber concentrations up to 40,000 fibers per square centimeter, 80 times the recommended limits. When the university tested Craighead for asbestos it found asbestos concentrations of up to 270,000 fibers per square centimeters.

“Because the university did not follow its policies and procedures it did not and still does not know how long the children in the ASUM childcare facilities were exposed to asbestos.”

The plaintiffs also allege that UM provided them false information —  which UM denies — that the contamination originated from flooring tiles in McGill Hall. “Contrary to the university’s assertions and representations, wipe samples containing in excess of 100,000 asbestos fibers per square centimeter were found in the Child Care Center on top of shelving, countertops and cabinets, as well as in and around the air handler, a device designed to circulate air through the heating, venting and air-conditioning (HVAC) system of McGill Hall …”

In the complaint, the parents and grandparent also state that they and their children and grandchild have the right to a clean and healthful environment as enshrined in the Montana Constitution, and that the State of Montana failed to properly enforce “interests which are significant to its citizens.”

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In its response, UM repeatedly asserts that the complaint “mis-states the evidence,” including the plaintiffs’ contention that asbestos analysis showed concentration levels at “unacceptable levels.” UM acknowledges it closed the childcare centers in McGill and Craighead, but not because of the presence of asbestos.

UM also admits it was aware of the presence of asbestos in certain locations in buildings on campus, but it denies it should take responsibility for the claims in the case and also denies “that it failed to follow its own policies and procedures for asbestos testing in buildings known to contain asbestos.”

“Defendant denies it made any misrepresentations or false representations,” said UM in its response. Rather, UM said its conduct conformed to the applicable standard of care, and that its actions didn’t cause injury.

“Defendant did not directly or indirectly perform any acts whatsoever which constitute a violation of duties, if any, nor breach any duty owed to plaintiffs,” said UM in its response. UM also argued that any injuries or damages “were the result of pre-existing, unforeseeable, intervening and/or superseding causes unrelated to the conduct of defendant, and thus, any recovery by plaintiffs against defendant is barred.”

The plaintiffs are represented by Knight Nicastro MacKay of Missoula, and the defendants are represented by Moore, Cockrell, Goicoechea & Johnson of Kalispell. The most recent scheduling order notes the parties will exchange names of expert witnesses this spring and complete discovery by July 15, 2022.