Pittsburgh Tribune-Review, Joe Napsha
Published June 18, 2005
As he sits at his kitchen table with his tray full of medicine that he must take to keep breathing, Rochester Steverson, of Pittsburgh's Windgap neighborhood, is hoping he does not become the kind of statistic kept by the federal government.
Steverson, 65, suffers from lung cancer he says was caused by 16 years of exposure to asbestos at his steel mill job.
The National Center for Health Statistics reported that 1,500 people died of asbestosis in 2002, and another 2,750 died of mesothelioma, a rare form of lung cancer caused by exposure to asbestos fibers. In Pennsylvania, at least 3,000 people have died from asbestosis -- a scarring of the lungs -- or mesothelioma, from 1979 through 2001.
An estimated 10,000 people die each year from asbestos-related illnesses and diseases, according to the Environmental Working Group, which based its estimate on national death statistics. Richard Wiles, vice president for the nonprofit environmental research group in Washington, D.C., said the figure includes an estimate that 1 percent of lung cancer fatalities are caused by asbestos. The estimate, Wiles fears, may be on the low side.
Right now, walking up the steps from the first floor of his home to the upstairs bedroom is so taxing he must sit down for five minutes just half-way up the steps. To get through the day, he undergoes four breathing treatments. Going to bed tethered to an oxygen tank doesn't offer a lot of relief because, "you try to go to sleep, and you can't breathe," Steverson said.
Although Steverson has not worked in a steel mill for more than 20 years, the National Cancer Institute says that it can take between 10 and 40 years for symptoms of an asbestos-related condition to appear.
Steverson said he does not know how long he will have to wait for a resolution to the asbestos-related lawsuit he filed in Allegheny County Court in March. He knows it could take years before a settlement is reached if the case goes to trial.
"I don't think I'll make it," Steverson said as he tried to stop a deep cough.
Steverson's case could be pulled out of the court system and placed before a federal trust fund administrator if Congress approves a Senate bill to create a $140 billion trust fund to compensate victims. The bill, approved by the Senate Judiciary Committee last month, would put an end to the costly litigation.
"Asbestos litigation is almost an industry unto itself," said Keith E. Whitson, an attorney with Schnader, Harrison, Segal & Lewis LLP, a Downtown firm that represents defendants in several states.
U.S. Sen. Arlen Specter, R-Philadelphia, co-sponsored the Fairness in Asbestos Injury Resolution Act, which would finance the trust fund with $95 billion from companies involved in asbestos cases, plus another $45 billion from their insurers involved in the asbestos claims. The trust fund, designed to last 30 years, would pay the most serious health claims within nine months of being enacted, and all other valid claims within two years. Attorney fees would be capped at 5 percent.
Among the legislation's opponents are Sen. Ted Kennedy, the Massachusetts Democrat who says the proposed trust fund is seriously underfunded, and that it would exclude many seriously-ill victims from receiving compensation.
"The shortcomings of the bill cannot be overlooked. The bill makes it harder for asbestos victims to recover compensation from the trust fund by unfairly raising the standards of proof," to receive compensation, Kennedy stated.
The act may be debated before the full Senate this summer, and that has opponents and supporters lining up on both sides of the battle. Labor unions are split in their support of the legislation, as well as businesses entangled in asbestos litigation.
"It is patently unconstitutional," because it would deny people the right to file a lawsuit, said James "Jay" Bedortha, an attorney with the Downtown law firm of Goldberg, Persky and White. The firm has represented victims in more than 5,000 asbestos-related suits in 11 states, Bedortha said.
Bedortha estimated that about 75 percent to 90 percent of the asbestos victims would not be entitled to the level of compensation they could receive from the courts. Bedortha said his firm's clients have received awards much greater than the proposed $1.1 million cap and received the money faster than if it was processed by an administrator.
The proposed trust fund bill would set medical criteria for asbestos victims to receive compensation. It would mean that a lung cancer victim such as former steelworker Raymond Esola of Monessen could not recover any money from the trust fund even though he was exposed to asbestos while working at Wheeling-Pittsburgh Steel Corp. for 38 years, said his attorney, Edward Beachler of Downtown. Esola does not have an underlying condition of asbestosis, which is necessary to be compensated under the national trust fund, Beachler said.
"It severely limits the number of people who can recover (money from the trust fund). The big losers are the Ray Esolas of the world. They are not going to get anything from the trust fund," Beachler said.
John Engler, president of the National Association of Manufacturers, said in a recent speech in Pittsburgh that his organization supports the trust fund legislation because it would put an end to the costly litigation and allow those who are truly ill to receive money first, while setting aside claims from those who are not yet ill.
The Senate bill would determine how much money manufacturers and insurers would have to pay into the fund, based on prior asbestos-related expenditures.
Attorney Whitson questions whether it is fair for companies to be required to allocate money in the future for the asbestos trust fund "based on what you've paid in the past. Some defendants have paid claims for 20 years and now are on a "downward trend," in terms of paying claims, so it's not fair to lump them with other companies that will be paying for many years to come, Whitson said.
Allegheny Energy, the Greensburg, Westmoreland County-based utility company that faces an estimated 1,500 asbestos lawsuits, is not pleased to find it would be required to contribute to the trust fund.
"We believe it to be unfair. The fund legislation hurts companies, like Allegheny Energy, that have made prudent investments in the past for insurance and mitigated their risks with regard to asbestos, by sweeping away their insurance protection, in favor of paying into the fund. In effect, we'd be subsidizing companies that were less prudent," said spokesman Fred Solomon.
The proposed legislation also calls for "capturing" money in a half-dozen existing trust funds, already approved by the courts and paying money to victims. Those funds would be brought under the control of the trust fund administrator.
"It would be an unconstitutional taking of the funds," Bedortha said.
Among the trust funds affected would be the $2.48 billion DII Trust Fund, set up to pay approximately 400,000 claims filed against eight bankrupt Halliburton subsidiaries, including Kellogg, Brown & Root and Dresser Industries Inc. The fund grew from the sale of about 60 million shares of Halliburton stock this spring.
Mark Gleason, a Pittsburgh accountant who is one of three trustees for the DII Trust Fund, said the fund could be paying claims for the next 30 to 50 years. The number of claims could grow to between 500,000 and 1 million, Gleason said.
Gleason declined to comment on the proposed national trust fund.
Details
Asbestos' assault on health
# Exposure to asbestos fibers can cause asbestosis, mesothelioma, lung cancer and gastrointestinal cancer.
# Asbestosis is the scarring of the lungs caused by chronic exposure to asbestos fibers. It is marked by shortness of breath and coughing.
# Mesothelioma is a rare form of cancer found in the thin membrane surrounding the lung, heart and abdomen. It is caused by breathing or ingesting asbestos fibers.
Source: National Cancer Institute and the Mesothelioma Information and Resource Group
