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Asbestos morass 

Springs man could lose settlement if Senate Bill passes

click to enlarge Bob McCoy suffers from mesothelioma, a type of lung cancer caused by inhalation of asbestos particles. - SEAN CAYTON
  • Sean Cayton
  • Bob McCoy suffers from mesothelioma, a type of lung cancer caused by inhalation of asbestos particles.

It's a foggy morning in this Skyway neighborhood. Inside the McCoy home, white stucco with a motor home parked out front, the spacious den is lined with photographs of grown children and young grandchildren.

Bob and Joan McCoy, Colorado Springs residents since 1951, love their home but wish they could be on the road in the motor home instead, headed for Arizona and a visit with one of their kids and his family.

They can't because Bob McCoy, a 31-year Harrison School District 2 employee who rose from woodshop teacher to assistant superintendent, suffers from advanced mesothelioma, a fatal lung cancer caused by exposure to asbestos.

"When you stop and think about your life, it's frightening," said McCoy, who oversaw the building of new schools in the Harrison district. "God, I didn't know sheet rock had asbestos in it."

Not everyone who is exposed to asbestos gets one of several related lung diseases, but many, like McCoy, do. In recent years, the number of people exposed and, consequently, diseased, has led to an explosion in American courts of personal injury lawsuits against asbestos manufacturers and companies that used asbestos in their products, many of them knowing the potentially fatal health consequences.

Filing suit

McCoy, reluctant at first to file suit, says he changed his mind when he became aware of the degree to which companies knowingly used asbestos even after it became well known that inhaled fibers could cause a range of fatal diseases.

McCoy's lawsuit was set to go to court on a Monday in August, but was settled out of court the Saturday before. McCoy can't reveal the number of companies that settled or the amounts of the settlements, but he says he has thus far received payment from two companies, partial payment from another, and nothing from several more.

He's concerned about that because his disease has progressed to the stage where his doctor has advised him to "begin thinking about hospice."

And he's more concerned because the U.S. Senate is currently considering legislation -- Senate Bill 1125, the Fairness in Asbestos Injury Resolution Act, introduced by Republican Sen. Orrin Hatch of Utah -- that would create a federal asbestos court and a trust fund of $108 billion to be doled out to asbestos-related disease sufferers according to a new set of standards.

That legislation, if passed, would effectively negate any outstanding settlements, including McCoy's.

"My understanding of [SB1125] is that any settlement that has been made and has not been paid at the time, should the legislation be signed into law, would basically be tossed out," said Denver attorney Gordon Metcalf, who has been arguing asbestos related cases since 1974 and represented McCoy.

What happens, then, to people like McCoy who haven't collected on their settlements and have spent years in depositions, racking up lawyers' fees while piling up medical bills and undergoing excruciating cancer treatments?

"They'd have to get in line in Washington, D.C., if they're alive," said Metcalf. "If not, their widows or children might get in line."

Pennies on the dollar

SB1125 is being heralded by manufacturing companies and by senators who support it as an equitable arrangement that would pay victims while protecting companies from bankruptcy.

But Metcalf is quick to point out that the majority of those companies filed Chapter 11 bankruptcy, a measure that allowed them to keep operating while bankruptcy courts managed their debt.

Many large companies, like Dallas-based Halliburton whose chief executive officer until just a few years back was Vice President Dick Cheney, will benefit hugely if the measure passes. Halliburton, on behalf of itself and all its subsidiaries subject to asbestos litigation, has set aside an estimated $4 billion to settle claims. But if the bill goes into effect, they will be asked to contribute around $27 million to the federal fund over a period of 25 years.

McCoy and Metcalf see SB1125 as nothing more than a bail-out for big business that will, ultimately, exclude many victims of asbestos exposure and will pay "pennies on the dollar" to those who qualify for a settlement.

For example, the bill caps payments at $1 million, the top payment anyone can receive. At the same time, any health insurance or life insurance payouts collected prior to the settlement would be deducted from the final figure.

If McCoy, say, or his wife tried to collect from the federal fund, all the money their health insurance company has paid out to date would be deducted, a figure "well in excess of $100,000 at this point," according to Metcalf. And any life insurance Joan McCoy or her children might collect would be deducted as well.

And the bill will exclude people who contracted asbestos-related lung diseases from "take home" exposure, an issue that disturbs Joan McCoy.

"There's a woman in Fort Collins who is dying from asbestos exposure she got washing her husband's work clothes day after day, year after year," said Mrs. McCoy. "It bothers me that under this system, she won't even be eligible for any kind of settlement."

Suffering underestimated

Bob McCoy says that he would never have sued if he had known a bill like this was pending. But he believes he and his family should be able to collect what has been promised by the court and by the corporations whose products gave him cancer.

"There's no escaping it. I'm gonna die," he said. "I don't know what my life is worth, probably not a lot. But if I can't be around, I'd like to be able to leave my kids some money."

Metcalf says SB1125 proponents underestimate the suffering and the efforts of the thousands of families affected by asbestos related lung disease by inferring, for example, that they are driven by greed.

"Every client I've ever had has said, 'I'd give back every penny of this money if I could have my loved one back without cancer,'" he said. "The kind of injuries and diseases that these people get are really, really horrible. And efforts by proponents of this legislation to demean the seriousness of these illnesses is abhorrent."

Both McCoy and Metcalf question why a government that claims it doesn't want to meddle in the affairs of businesses would single out the asbestos industry to protect it from legal settlements.

"People ought to be entitled to have their day in court," said Metcalf, "not be told they can't because the wrongdoer is a big corporation with lobbyists in Congress.

"We like to talk in this country about personal responsibility. But there is such a thing as corporate responsibility along the same lines. What we're seeing is, hey, we're not going to be responsible [for the consequences of our actions].

"If I was driving down the street, drunk, and ran over somebody and caused them a million dollars worth of damage, should the government be able to say to me, 'Hey, Metcalf, you only have to pay a hundred-thousand?'"

  • Springs man could lose settlement if Senate Bill passes

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