Enough to Make You Sick

In the struggle for a shrinking pot of money from asbestos litigation, the sickest victims are getting nickels and dimes while lawyers get their millions

Little did Ronald Bailey know that his handiness and inquisitive mind would one day kill him.

The Fort Worth native had a knack for understanding mechanical things. So as an engineering student at the University of Oklahoma in the early 1960s, he took what he thought was a great work-study job repairing the school's boilers, cooling systems, pumps and pipes, which ran under the Norman, Oklahoma, campus in miles of tunnels. It was a hands-on education, and just as important for the penniless student, it paid overtime. "When we'd tear down one of those boilers, it was Annie bar the door. That was money-making time," Bailey recalled years later.

Bailey had little reason in the four decades since to think about his school-days job, but in the summer of 1999, after a lifetime of work as a mechanical engineer and landscape contractor, it came charging back. "He woke up one morning and he couldn't breathe," recalls his wife, Lynne Bailey. "They took an X-ray, and half his lung was covered with a malignancy."

Bailey had contracted mesothelioma, a rare and incurable form of cancer tied with scientific certainty to breathing asbestos fibers. At his college job, Bailey spent hours installing or tearing out heat-resistant asbestos pipe insulation and gaskets, or mixing floury, dusty asbestos-laden refractory cement--all in close spaces underground.

Lynne Bailey of Fort Worth lost her husband, Ronald, to mesothelioma, a rare and incurable form of cancer caused by asbestos exposure. Since his death in 2000, she has witnessed firsthand the results of a national battle over asbestos lawsuits.
Mark Graham
Lynne Bailey of Fort Worth lost her husband, Ronald, to mesothelioma, a rare and incurable form of cancer caused by asbestos exposure. Since his death in 2000, she has witnessed firsthand the results of a national battle over asbestos lawsuits.
Dallas attorney Mark Iola, who handled Ronald Bailey's case, believes that only people with serious health problems should be able to sue asbestos defendants.
Mark Graham
Dallas attorney Mark Iola, who handled Ronald Bailey's case, believes that only people with serious health problems should be able to sue asbestos defendants.

The fit, trim 59-year-old confronted his illness with stubborn optimism, refusing to accept an oncologist's estimate that he had less than six months to live. "He was sure they didn't know what they were talking about," says his wife, describing how he enrolled in an experimental cancer treatment trial in San Antonio and exhausted their savings on drugs and unconventional treatments.

But the hopeless prognosis proved spot-on. Ronald Bailey died in June 2000, becoming one of 2,500 Americans struck down that year from this particularly virulent occupational disease. "It engulfs the lungs and strangles them, like a belt being cinched up around the chest," says Mark Iola, a Dallas lawyer who specializes in representing people with malignant asbestos-related illnesses. "I can't think of a more painful way to die."

Since the 1980s, families of men such as Ronald Bailey have been able to sue and stand a good chance of collecting court-imposed judgments or settlements from companies that made asbestos products. (Asbestos was phased out of the workplace in the early 1970s.) After 30 years of intense litigation, there is a well-established body of evidence that the major asbestos product makers knew about hazards to workers by the 1940s but concealed that information and issued no warnings. All that was left to prove when Bailey and his wife brought their liability lawsuit was which companies' products he had used and who would be made to pay.

In a deposition taken at his house three months before he died, Bailey answered those questions in easy detail. Dressed in a plaid shirt and cardigan sweater, his nose fixed with an oxygen tube, he described how he installed various pipe coverings, valve packings, cements and gaskets on his university job. A smorgasbord of materials was on hand because distributors would sometimes donate surplus supplies to the university, he said.

"He was a great witness," Iola says. "The defendants weren't going to let a jury hear from him."

In August 2000, just as Bailey's case was set to go to trial in Cameron, Texas, the last of 14 defendants settled with his widow. Iola will only say the total amounted to "more than several millions of dollars. There were about $200,000 of medical bills and $500,000 of lost wages. But most of it was for his pain and suffering and the loss of consortium, of him being who he was to his family."

Over the next year, however, Lynne Bailey would witness firsthand what a lawsuit crisis looks like. Before they paid her anything, six corporate defendants that owed about half her total settlement filed for bankruptcy, saying they were being drowned by a flood of asbestos claims. The six--roofing-materials company GAF, refractories-maker A.P. Green, boilermaker Babcock and Wilcox, insulation materials company Owens Corning Fiberglass, chemical conglomerate W.R. Grace and building-products manufacturer U.S. Gypsum--were soon joined by one more, Houston-based Kaiser Aluminum, which filed for bankruptcy after it had paid Bailey.

The vast majority of the lawsuits burdening these and other companies are being filed on behalf of workers who, unlike Ronald Bailey, are not sick and will probably never get sick from their asbestos exposure.

The explosion of so-called "unimpaired" cases, filed en masse by some of the wealthiest and most enterprising law firms in the country, has troubled corporate defendants since the early 1990s. (See "Toxic Justice," an August 13, 1998, Dallas Observerspecial report.) But over the past two years, with nearly every former producer of asbestos products filing for bankruptcy, the corporations have been joined by new allies: asbestos' true victims and their lawyers, who say the crisis is harming them the most.

"The seriously ill now have no place to go for compensation," Iola says. "The companies that are responsible for their injuries are in bankruptcy, because they've had to pay billions of dollars to people who don't manifest any impairment or disability. Lawyers are the ones doing this, and they're doing it for money. They are stealing money from the very sick."

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