The state of Montana has agreed to pay just over $24 million to victims of asbestos disease to settle claims that state health officials did not warn Libby residents about the toxic exposure created by the W.R. Grace & Co. vermiculite mine.
Asbestos exposure from the now-defunct mine sickened and killed not only mine workers and their family members but also residents of the Libby area who were exposed by simply living in the community.
As required by the Montana Tort Claims Act, Cascade County District Court Judge John Kutzman on Wednesday reviewed the proposed settlement and approved it, said Roger Sullivan, one of the attorneys with the Kalispell law firm McGarvey, Heberling, Sullivan & Lacey that represented 826 claimants. The Great Falls law firm of Lewis, Slovak, Kovacich and Snipes represented 261 claimants.
The settlement provides parallel agreements for the two sets of asbestos victims.
Forty percent of the settlement will be disbursed to asbestos victim claimants within 30 days of the court approval, with the remainder of the settlement provided by July 31, Sullivan said.
Attorneys will get 33 percent of the settlement and are paying for the cost of the litigation.
This week’s settlement completes a second round of litigation between Libby asbestos victims and the state of Montana.
Initially the Grace mine workers sued the state in Orr vs. the state of Montana, using state industrial hygiene and public health laws to argue the state had a duty to disclose the asbestos hazards to miners and their families. The Montana Supreme Court in 2004 reversed a Montana federal district court ruling and held that once the state was aware of the dangerously high asbestos levels in the Libby mine, it was required by law to protect the miners by warning them of the known hazards of working in the mine.
In 2011 the state negotiated a $43 million settlement with asbestos victims. More than 1,100 claimants with asbestos disease got a portion of that settlement.
“In the first settlement — let’s call it Round 1 — there was a higher percentage of mine workers and their families,” Sullivan said. That group of claimants had more serious asbestos disease than most of those in the recent settlement.
“In this Round 2 settlement there were a lower percentage of mine workers and family members and a higher percentage of those who simply lived in the community, and a lower percentage with more serious disease,” Sullivan said. “Those factors entered into the settlement.”
While the Orr case laid out and addressed the duty the state had to mine workers, it didn’t directly address the state’s duty to also warn community members, Sullivan said. Over the ensuing years, litigation has contended the state had just as much obligation to warn the community as it did to warn mine workers.
The state’s defense in the Round 2 litigation is that although the state Supreme Court ruled that Grace had a duty to warn mine workers and their families, that ruling didn’t extend to the community at large.
The Round 2 settlement includes asbestos victims who were diagnosed after the 2011 court settlement.
“This covers all clients who had been diagnosed as of June 4, 2016,” Sullivan said. “So anyone diagnosed since that time could potentially have a claim against the state of Montana.”
The latest court settlement involves a complex matrix will give higher payments to those with more serious asbestos disease, Great Falls attorney Tom Lewis said.
“It’s dependent on the severity of their disease, determined by objective pulmonary function testing, and/or diagnosis of cancer or mesothelioma,” Lewis said, adding that whether a person has to rely on oxygen is another factor that enters into how much money a claimant will receive.
When the severity of the asbestos poisoning came to light in November 1999 in stories published by the Daily Inter Lake and later the national media, Libby residents began questioning the level of state oversight at the mine, and many blamed state agencies for allowing the asbestos exposure to continue occurring for decades until the mine closed in 1990.
According to the Inter Lake’s initial coverage of the Libby saga, company officials at the mine were told about the toxicity of asbestos in 1956 after an inspection by the state Board of Health.
Features editor Lynnette Hintze may be reached at 758-4421 or by email at email@example.com.