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West Virginia University to Create Asbestos Testing Program

Posted on: Thursday, 20 October 2005, 15:00 CDT

By Ken Ward Jr., The Charleston Gazette, W.Va.

Oct. 20--More than 5,000 current and former West Virginia University employees would be tested for asbestos-related diseases under the tentative settlement of a five-year-old lawsuit, court records show.

Lawyers are still working out the details of a final settlement document and few terms of the deal have been disclosed.

No estimate of what the settlement might cost had been made public as of Wednesday.

The WVU workers -- including professors, custodians, secretaries and other staff -- alleged that asbestos in campus buildings put them at an increased risk of getting cancer.

In their suit, the workers demanded a medical monitoring program to help them seek early treatment of any asbestos-related illnesses. They cited a 1999 state Supreme Court ruling that allowed workers and consumers to recover costs of such testing for exposure to toxic substances.

Lawyers for WVU and its employees quietly informed Kanawha Circuit Judge Tod Kaufman of their tentative deal in a July letter.

"We believe that we have successfully mediated this class action to a settlement that is both fair and in the best interests of all concerned," wrote Robert Sweeney, a lawyer for the employees, and Stephen Fowler, a lawyer for WVU.

Trial had been scheduled to start July 18. The parties reached a deal after two lengthy mediation sessions run by former Kanawha Circuit Judge Andrew MacQueen, court records show.

Sweeney and Fowler told Kaufman that they had "been working to finalize the details of the agreement over the past six weeks.

"The process has been complicated by the fact that the settlement document must spell out the actual details of a medical monitoring program, which requires the input of more than just the lawyers in the case," they told the judge.

Kaufman signed an order that indicated the parties were "close to completing a settlement agreement, but need additional time to resolve certain issues germane to the resolution."

The judge ordered the parties to provide the settlement document by Oct. 3, or appear at a hearing Wednesday to explain the deal.

Kaufman held a hearing Wednesday, but the lawyers told the judge they still had not completed the written settlement document. The judge scheduled another hearing for Nov. 1.

Tom Dorer, chief in-house lawyer for WVU President David Hardesty, said the July letter to Kaufman was accurate and that "there is nothing else to report at this time."

WVU employees sued after the school's Coliseum was closed during the 1999-2000 basketball season, when federal regulators demanded a massive cleanup of asbestos in the building's ceiling.

The lawsuit cited internal WVU records, uncovered by The Charleston Gazette, which showed the university knew about -- but did nothing about -- asbestos insulation in the Coliseum ceiling that was in "poor" condition and "significantly damaged" since at least 1992.

WVU also got into trouble with regulators over the cleanup itself. In June 2002, the university agreed to pay a $10,500 fine for not properly wetting asbestos-containing materials that were being removed from the Coliseum.

Because asbestos fibers are resistant to heat and most chemicals, they were widely used in roofing, cement, electric insulation, flooring, gaskets and coatings.

In the last 30 years, the general public has learned what asbestos makers have known since the 1930s: Asbestos is deadly. Breathing it can cause asbestosis, lung cancer and mesothelioma, an incurable and fatal form of cancer that develops in the chest cavity and encases and grows into the lungs.

In 1984, the state conducted a survey of about 400 public buildings to determine the extent of the asbestos contamination. Two years later, the state sued more than a dozen asbestos companies to try to recover cleanup costs.

The WVU employees alleged that WVU knew since that time about "imminent danger caused by any level of asbestos" but "did nothing to abate, seal or to remove" the materials from campus buildings.

The suit alleged that WVU developed an "ad hoc policy" for asbestos removal that was "poorly devised and administered."

"It was an inadequate response to a serious public health risk and undertaken without taking into consideration the day-to-day risks of those workers who continued to labor in that environment," the workers' lawyers alleged in court filings.

The lawsuit noted that, in November 1999, the state Bureau for Public Health issued a report that found numerous asbestos problems in the Creative Arts Center, the College of Law and three other WVU buildings.

WVU lawyers had sought to have the lawsuit dismissed. They argued that employees were not exposed to dangerous levels of asbestos, that if they were they were covered by university health-care benefits, and that WVU was immune from such lawsuits.

In September 2000, Kaufman ruled that the university was not immune from such a suit and that the workers could continue their case. The state Supreme Court declined to hear an appeal of that ruling.

Kaufman had certified the case as a class action on behalf of all non-student, full-time WVU employees who worked at least five years between 1986 and 2006. An expert for the workers testified that WVU payroll records showed that would include about 5,700 people.

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To see more of The Charleston Gazette, or to subscribe to the newspaper, go to http://www.wvgazette.com.

Copyright (c) 2005, The Charleston Gazette, W.Va.

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Source: The Charleston Gazette

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