By Eve Byron/Courthouse News
GREAT FALLS, Mont. – Calling the situation “a mass toxic exposure,” a Montana state court judge approved a $23 million settlement this week for 1,087 people or estates that claimed state officials knew asbestos from a Libby mine was making them sick but didn’t inform them of the hazards from mining, processing and transferring of vermiculite-related products.
The latest settlement involves people who lived in Libby and Lincoln County in northwestern Montana who either did not work at the W.R. Grace & Co. vermiculite mine or lived with someone who did. It comes five years after a judge in Helena approved a $43 million settlement for more than 1,400 miners and their families, bringing the total to $66 million paid out by the state’s tort claims fund and insurance companies since 2011.
The Libby mine produced vermiculite, which was processed at a Libby plant for use as insulation and shipped across the nation. Asbestos is a byproduct of vermiculite, and its lethal dust often blanketed the greater Libby community, 40 miles south of the Canada border. The vermiculite was also used as fill for the high school track, and miners often carried it home on their clothes.
The Libby asbestos is particularly harmful, with needle-like fibers that lodge deep in peoples’ lungs making it difficult to breathe, and in some cases causing cancer.
“It gets embedded when you breathe and move back and forth; it’s like a cactus and creates scarring of the inside of the lungs,” said Dale Cockrell, a private attorney who represented Montana in the lawsuit.
The cancer caused by the asbestos – mesothelioma – cannot be cured, with people dying within two years of diagnosis and sometimes within months. The asbestos-related lung diseases are progressive, and patients usually need supplemental oxygen just to survive.
“This isn’t a glamorous or pain-free way to die,” Judge John Kutzman noted, in approving the settlement amount. “You have a group of plaintiffs who are either going to die, or live out the rest of their lives in painful and distressing circumstances.”
Libby was deemed a federal Superfund site in 2002.
State health officials occasionally inspected the vermiculite beginning in the early 1940s until it closed in the 1990s but did little research in the town, according to Cockrell. During that time, reports generated from the inspections were shared with the mine and unions but not with the community.
“The issue is whether the state had a duty not just to miners but to the community members,” Cockrell said. “If there’s no duty, the state is excused. If there is a duty, there’s tremendous exposure for the state of Montana.”
The 89 lawsuits filed since the 2011 settlement were consolidated into two cases, called the “Jones” and “Backen” cases. The 826 plaintiffs in the Jones case will split at least $18 million, and possibly an additional $5 million based on a pending lawsuit with the one-time state insurer National Indemnity Co. Another $6 million will be split among 261 plaintiffs in the Backen case, with the possibility of an additional $6.2 million from the indemnity company.
Tom Lewis, who represented the Backen clients, noted the money won’t be divided evenly since some people are sicker than others. Instead, they’ve worked out formulas generally based on lung capacity tests, age and illness, and shared the payout information among the plaintiffs.
Both Lewis and Roger Sullivan, who represented the Jones clients, will receive about 33 percent of the settlement. Judge Kutzman said that amount seemed fair, if not a little low.
Lewis noted that the Backen cases were the only ones he worked on for the past five years, and he retired once it became clear the settlement would be reached.
Sullivan is continuing to file a few additional cases; the settlement only addresses those filed by June 2016.