Libby Asbestos Class Action Litigation
Introduction
Lieff Cabraser earlier filed a class action lawsuit against W. R. Grace & Company, for medical monitoring and environmental remediation in connection with tremolite asbestos-contaminated vermiculite ore mined for over 60 years at Zonolite Mountain in the City of Libby in Lincoln County, Montana and processed at plants nationwide. (Dorrington and Sather v. W.R. Grace & Company, et al., Lewis & Clark County, Montana).
Class Action Lawsuit
The class action lawsuit sought a court order creating and implementing a court-controlled, defendant funded, medical diagnostic program for the benefit of asbestos exposed residents and workers. The proposed program would include:
- medical screening to ensure the early detection and treatment of diseases caused by tremolite, including asbestosis, lung cancer and mesothelioma;
- maintenance and operation of a medical registry that keeps track of relevant health data;
- dissemination of medical data to public and private health institutions to promote significant medical research into new treatments for the often-deadly diseases caused by tremolite; and
- funding of beneficial medical research and procedures for prompt reporting to health-care providers of developments relating to the diagnosis and treatment of these diseases.
The class action suit alleged a pattern and practice of unsafe mining operations and the longstanding concealment, by W. R. Grace & Co., of the true hazards, and continuing dangers, of tremolite exposure. Tremolite asbestos is an especially deadly form of asbestos because it consists of tiny needle like fibers which are sharply pointed and easily penetrate the linings of the lungs.
The lungs are unable to remove tremolite asbestos that has speared into lung tissue, and the tremolite spears cannot be coughed out or washed out of the lung tissues by blood. As a result, affected lung areas become inflamed and eventually the lung areas become heavily scarred and non-functional. Eventually, it becomes impossible to breath effectively because oxygen cannot get into the lungs and carbon dioxide and other impurities cannot get out.
W.R. Grace Bankruptcy
On November 27, 2001, Chief Judge Becker of the Third Judicial Circuit assigned the Honorable Alfred M. Wolin of the United States District Court of the District of New Jersey to oversee the larger asbestos bankruptcy proceedings, including the W.R. Grace Bankruptcy. Judge Wolin, in turn, tapped the Honorable Judith K. Fitzgerald, United States Bankruptcy Judge for the District of Delaware holding court in Pittsburgh, Pennsylvania to handle the W.R. Grace bankruptcy proceeding.
At this time, all actions and potential claims against W.R. Grace are stayed by virtue of the company's bankruptcy filing and proceeding. Efforts to certify the Zonolite class continue, although the outcome is uncertain.
Claimants who wish to preserve potential property damage, property remediation, personal injury, medical monitoring and/or any other claims or potential claims against W.R. Grace will likely be required to file individual proofs of claim in the bankruptcy (unless the court agrees to recognize a class proof of claim filed by representative individuals on behalf of similarly situated persons), otherwise their claims will be forever barred.
The bankruptcy court has established claims procedure and set a deadline (known as the bar date and discussed below) for filing proofs of claim and it is your own responsibility to follow and conform with the orders and procedures of the bankruptcy court.
Judge Fitzgerald's orders are posted on the website of the United States Bankruptcy Court for the Western District of Pennsylvania.
The United States Bankruptcy Court for the District of Delaware also maintains a website. Recent orders and activity regarding all pending cases are posted there; simply follow the "What's New" link.
Lieff Cabraser does not represent anyone in any individual claim, although we are continuing our efforts to allow a class proof of claim for Zonolite property damages and remediation costs (not for personal injury damages) and the outcome is uncertain and should not substitute for your own filing of an individual proof of claim.
Bankruptcy Bar Date
What is a Bar Date?
A bar date is a deadling established by the Bankruptcy Judge for filing a claim against the Debtor.
What Claims are Subject to the Upcoming Bar Date?
The United States Bankruptcy Court has set March 31, 2003, as a deadline for filing all claims other than Asbestos-related bodily injury claims and Zonolite Attic Insulation claims. For detailed information on the claims subject to the bar date, you should visit the Grace Bankruptcy Claims Information Site.
Should I File a Claim?
Claims that must be filed by March 31, 2003, include claims for medical monitoring and property damage claims (excluding Zonolite Attic Insulation).
Individuals who have had significant exposure to Zonolite Insulation (attic insulation or masonry fill) or who worked at or lived near a Grace plant should promptly determine whether they wish to file such a claim. Certain property damage claims must also be filed by March 31, 2003. While this deadline does not apply to claims arising out of Zonolite Attic Insulation, the deadline may apply to claims arising out of Zonolite Masonry Fill.
How Do I File a Claim?
If you wish to pursue such a claim on your own, you may request a Proff of Claim Form by calling the Claims Processing Agent at 1-800-432-1909 or by requesting the form at www.graceclaims.com.
EPA Issues Warning to the Public
On May 21, 2003, the Environmental Protection Agency issued a warning to the public that millions of home and business owners may have insulation that could cause lethal exposure to cancer-causing asbestos. The warning comes after two years of the agency's being pressured by Congress, public interest groups and its own employees.
"The government believes that people should be aware that some vermiculite attic insulation can contain microscopic asbestos fibers, and there are practical steps that homeowners can take to minimize exposure. People who have homes with vermiculite attic insulation should become informed, not alarmed," said Stephen L. Johnson, EPA's Assistant Administrator for the Office of Prevention, Pesticides, and Toxic Substances.
Among the EPA recommendations are the following:
- Property owners should not disturb vermiculite attic insulation; any disturbance has the potential to release asbestos fibers into the air.
- Homeowners should limit the number of trips to attic space and shorten the length of those trips. People should not store boxes or other items in attics if retrieving the material will disturb the insulation.
- Children should not be allowed to play in an attic with open areas of vermiculite insulation.
- Homeowners should never attempt to remove the insulation. Instead they should hire professionals trained and certified to safely remove the material. The same applies to remodeling or renovation projects that involve the insulation.
Vermiculite is a natural mineral that when heated expands into accordion-shaped, feather-weight pieces of material usually tan-gold in color. It is flameproof and absorbent, which makes it useful as insulation and in garden products. Vermiculite is still mined in South Carolina and Virginia. But the insulation that the agencies are most concerned about is called Zonolite. It came from vermiculite ore in a now-closed, 80-year-old mine that was last owned by W.R. Grace & Co.
The EPA has issued a pamphlet to the public. It will be distributed through major hardware store chains and local libraries. Read a copy of the pamphlet.
Additionally, the EPA, in conjunction with the Agency for Toxic Substances and Disease Registry (ATSDR) and the National Institute for Occupational Safety and Health (NIOSH), has launched a national awareness campaign to arm homeowners with important information on vermiculite attic insulation. See www.epa.gov/asbestos/insulation.html.
The January 2005 edition of Environmental Health Perspectives includes publication of a new study finding significant associations between Libby asbestos and autoimmune disorders. Assessment of Autoimmune Responses Associated with Asbestos Exposure in Libby Montana USA by C. Pfau, et al. (Univ. of Montana, Dept. of Biomedical and Pharmaceutical Sciences (Jan 2005) EHP Vol. 113 25-30).
"By demonstrating an association between asbestos exposure and measures of autoimmune response, this study supports and augments other existing evidence that, like silica, asbestos is an agent of systemic autoimmunity. Asbestos-contaminated vermiculite form Libby has been shipped and processed in many sites in the United States, and this material is still used in many applications. It therefore remains a significant health risk to humans both occupationally and enviromentally, and an awareness of an assocation with autoimmunity could impact necessary monitoring, testing, and treatment regimens for exposed individuals or populations."
This was a case control study with age- and sex-matched sets of 50 serum samples from Libby and Missoula. The Libby samples showed a significantly higher frequesncy of positive ANA and ENA tests, increased mean fluorescence intesity and titers of the ANAs, and higher serum IgA, compared with the Missoula samples. In the Libby samples, positive correlations were found between ANA titers and both lung disease severity and extent of exposure.
About Lieff Cabraser
Lieff Cabraser Heimann & Bernstein, LLP is a fifty-plus attorney law firm that has represented plaintiffs nationwide since 1972. We have offices in San Francisco, New York and Nashville. We represent plaintiffs in class and group actions and in individual lawsuits in cases involving substantial losses. For the last six years, the National Law Journal has selected Lieff Cabraser as one of the top plaintiffs' law firms in the nation.
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