News Coverage
Fighting for Compensation
Published April 13, 2004
A bill that aims to unclog federal courts of more than 400,000 asbestos suits may deprive victims who were exposed to the carcinogen the right to a trial by jury
Bernadette B. Tutuska breathed in asbestos dust from her husband's clothing 30 years ago.
When her husband came home from work each day, Bernadette B. Tutuska took his construction clothes and slapped them against a basement pole before tossing the garments into the washer.
Unknown to her at the time, she was poisoning herself. His clothes were filled with asbestos, and she was breathing in the poison dust.
Three decades later, the 60-year-old West Seneca woman is now fighting two battles: one against asbestos-caused cancer that already cost her a lung, and the second against U.S. senators attempting to legislate tort reform to unclog the courts of more than 400,000 asbestos-related lawsuits nationwide.
A grandmotherly woman whose diminished breathing capacity often leaves her gulping for air, she says the Senate bill - if passed later this month - would eliminate her pending lawsuit and let off the hook companies that were responsible for poisoning her with asbestos.
She and thousands of other asbestos victims, many of them from Buffalo Niagara, would instead have to seek compensation from a national trust fund of $114 billion. And there is some question whether Tutuska would qualify because she was not directly exposed to the asbestos at a work site.
"My husband asked at work if the dust was dangerous, and he was told it wasn't," Tutuska said. "His clothes were just loaded with the dust. I'd bang them against a pole. You could see the dust in the air. When it settled, I'd sweep it up and vacuum it. I was breathing the asbestos three times over."
She and her husband, Donald, an electrician who worked on the construction of University at Buffalo dormitories on the North Campus and the Erie County Medical Center in the early 1970s, traveled to Washington, D.C., about two weeks ago to lobby against the Senate bill.
Backed by the Bush administration, Senate Majority Leader Bill Frist, R-Tenn., plans to request a vote on the bill next week.
Supporters argue that asbestos lawsuits not only burden federal and state court calendars, but mostly benefit trial lawyers who get big percentages of large monetary settlements that can take years to litigate.
Fund would last 27 years
Opponents say the trust fund would be severely underfunded, would deny individuals the right to seek compensation in courts and would amount to a bailout for thousands of companies targeted by plaintiffs in asbestos lawsuits.
Asbestos companies and their insurers would provide the money for the proposed trust fund, with payments made over the next 27 years.
But that's inadequate, according to Ken Cook, president of the Washington, D.C.-based Environmental Working Group Action Fund.
"We don't think all of the asbestos-related diseases will play themselves out in the next 27 years," Cook said. "The government wants to fit people into the number of dollars allocated rather than first determine the number of people affected."
Through examining death certificates, Cook said his organization determined that at least 43,000 Americans, including as many as 474 in Buffalo Niagara, died from asbestos from 1979 to 2001, and that an estimated 10,000 continue to die annually from the carcinogen.
Cook, who sides with labor unions in opposing the bill, met with the Tutuskas when they were in Washington.
Bernadette Tutuska's case, he said, highlights the shortcomings of the proposed legislation and its 27-year fund because her cancer, mesothelioma, did not occur until some 30 years after she was first exposed to asbestos.
The Senate, according to a statement issued by the office of Sen. Charles E. Schumer, D-N.Y., is attempting to come up with a compromise bill and it is too early to tell what the final legislation will look like.
Sen. Hillary Rodham Clinton, D-N.Y., urged the different groups involved in the "complex problem" to work together.
"Both workers and business need a solution to address the growing number of asbestos-related lawsuits and claims, and I remain hopeful that Congress can craft responsible legislation," Clinton said in a statement.
The best outcome for Bernadette Tutuska would be no action by Congress, according to her attorney, Michael A. Ponterio. He says the bill would block people with second-hand asbestos exposure from having the right to file claims with the proposed trust fund.
"If Bernie Tutuska were to get a settlement in court and this bill passes, her settlement would be wiped out," Ponterio said. "The bill would strip hundreds of people locally and thousands nationally of their constitutional right to a trial by jury."
Ponterio also said State Supreme Court Justice James B. Kane has presided over local asbestos cases since the mid-1980s in order to assure speedy trials. Tutuska's asbestos lawsuit is scheduled for August.
Bernadette's story
In May 2003, doctors determined Tutuska had mesothelioma in the lining of her right lung and might have as little as two months to live.
She was referred to a Boston, Mass., hospital specializing in radical surgical treatment for this type of cancer. Her lung and its lining were removed June 11.
While she is grateful to be alive from a cancer that is frequently deadly, she says her life will never be the same. Sitting at her kitchen table, the mother of three grown children wept as she looked at a 2-year-old driver's license photo of herself.
"That used to be me," she said, explaining that she has drastically aged from the cancer and hardly resembles her former self.
Her hair has changed from reddish brown to salt-and-pepper gray. Her hearing has diminished and her voice, she says, has changed "from the chemotherapy."
With only 44 percent of her breathing capacity left, Tutuska says she can no longer work as a secretary, clean her house, cook or garden.
"I used to have a clean Polish house. I'd wash the walls, the woodwork, curtains and move the furniture to clean. Now I can't do any of that," Tutuska said. "I don't even have the strength to hold my two younger grandchildren."
Donald Tutuska blames himself for his wife's illness. He likens himself to the rats who carried infected fleas that caused bubonic plague.
"I'm responsible. I brought it home. If I had a different job, my wife would be healthy now," the 57-year-old husband said. "I realize I didn't do it deliberately, but it's a hell of a burden." Donald Tutuska says he, too, is infected from asbestos.
"I have asbestos plaque in my lungs, and I'm in the 80 percent risk category of getting lung disease," he said.
Differing opinions on bill
Attorney John P. Comerford, who also represents Bernadette Tutuska, said he believes the creation of a trust fund could result in greater delays for Western New York victims.
"With Mrs. Tutuska, there's a real chance of settling her case between six and nine months in court," Comerford said. "But it could take five to nine years according to some projections with the trust fund."
The American Insurance Association insists the bill would compensate people like Bernadette Tutuska in a timely manner.
"There is no doubt in anyone's mind that people with mesothelioma will be compensated quickly," association spokeswoman Julie A. Rochman said. "The average settlement in court nationwide is $700,000 and lawyers get 30 to 40 percent of it. With the fund, you won't need a lawyer. You'll present your medical evidence and get your check."
The bill, she said, needs modifications to ensure individuals who are ill from asbestos are treated fairly.
"There's only so much money out there for asbestos compensation and you have to do triage," Rochman said. "It ought to go to the people with mesothelioma, those who are actually sick."