TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, July 31, 2006

Slightly Off Topic Sports Fun

First, it's entertaining to see the Jamail video finding its way to Deadspin.

Second, also from Deadspin, a Colorado attorney is suing various online fantasy football providers under New Jersey law, claiming that they are in fact providing online gambling illegally.  Tech Law Advisor has the complaint; and the lawyer has a press release.  I suppose if some sites get enjoined, I might not be as embarrassed in my leagues this year...

July 31, 2006 in Experts & Science, Goofy Cases | Permalink | Comments (0) | TrackBack (2)

MySpace Update & Measuring Calories

I don't have documents or a link for it (yet), but early word is that the MySpace defense at the motion-to-dismiss stage is focusing, unsurprisingly, on duty to protect against third-party criminal acts and on the Communication Decency Act's safe harbor provisions.  (See here, here, here, here, here, and here for earlier posts; Walter Olson provides his take for the Times of London.)

On an entirely different topic, and only marginally related to anything except, I suppose, obesity lawsuits, the SciAm blog has a neat description of how food manufacturers measure calories.

July 31, 2006 in Current Affairs, Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

Sunday, July 30, 2006

New FDA Guidelines on Experts

The FDA announced new guidelines on experts on advisory committees with ties to industry last week.  Among other things:

* [The FDA will be] Issuing guidance on identifying more clearly the conditions under which conflict of interest waivers are granted. The FDA said that at present it grants waivers after taking into consideration the participation in scientific endeavors related to the work of the committee.

* The FDA also said that it would frame guidelines on when the conflict of interest should be disclosed to the public and on what the nature of this disclosure should be.

* The agency also wants certain rules specifying when briefing materials used at FDA advisory committee meetings will be made publicly available.

* The FDA also said it would look at making the whole process transparent and send information on the advisory panels to public groups and providing electronic notifications through an FDA advisory committee list serve and posting on the FDA web site.

* The agency also promised to streamline the appointment of drug-related advisory committees.

It's not immediately clear to me how broadly the FDA considers conflicts -- e.g., whether someone without industry ties but who has made, say, $500,000 in the last year testifying for plaintiffs' attorneys would count.

July 30, 2006 in Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

Saturday, July 29, 2006

Lawyer Now CEO at Pfizer

In what is reported as a surprise move, Pfizer announced the appointment of Jeff Kindler as its new CEO.  Kindler is an attorney and was most recently Pfizer's GC.  Prior to joining Pfizer, he'd been at McDonald's and GE, and, before my time there, at Williams & Connolly in DC.

July 29, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, July 28, 2006

Discovery Granted in BSA Abuse Case

The Washington Supreme Court ruled that the Boy Scouts of America must turn over its files on alleged abuse over past decades as part of an ongoing lawsuit by three men alleging sexual abuse by a scoutmaster.  The majority opinion received seven votes, affirming the lower court decision (written by one Judge Michael J. Fox, I observe), with the dissent getting two.

July 28, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Thursday, July 27, 2006

Tiffany Fined

Tiffany & Co. has been fined by the CPSC for failing to report dangers with their teething rattles.  Oops.

July 27, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)

Regulation Through Litigation: Hooray...?

Wendy Wagner (Texas) has an interesting new SSRN paper, forthcoming in the Georgetown Law Journal challenging what is becoming conventional wisdom about the value of litigation in regulating dangerous products:

It is the prevailing wisdom among both the legal academy and the general public that the regulatory system is better able to ensure the safety of risky products than the tort system. In this article I argue that this is not always the case. Contrary to sharp criticisms of “regulation by litigation” propounded by leading academics such as Richard Epstein, Richard Reich, and Peter Schuck, tort litigation is sometimes the only way to encourage product safety, at least in settings where manufacturers conceal key information needed to evaluate product safety. Without this litigation, we might still be using products that we know now are exceedingly dangerous.

July 27, 2006 in Experts & Science, Products Liability, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 26, 2006

The Plame Suit

FindLaw has a good piece (somewhat calmer than a lot of the initial columns) by Matthew R. Segal about Valerie Plame and Joseph Wilson's suit against Scooter Libby, Karl Rove, and Dick Cheney.  Segal's conclusion:

In the end, though, who is at fault for those costs? Plame and Wilson surely have resorted to an imperfect method of learning the truth only because, for the past three years, Administration officials have decided not to reveal it. (The Administration's secrecy must be particularly frustrating to those who believe that there was no vendetta to disclose Plame's identity and, consequently, nothing to hide.)

President Bush said in September 2003 that he wanted "to know the truth." And the public deserves to know it too--because Administration officials may have committed crimes, and, more fundamentally, because this case is connected to the justification for the war that costs us lives, and dominates our politics now....

* * *

In sum, there is indeed plenty to dislike about the lawsuit filed by Plame and Wilson. But there is also plenty to dislike about the conduct of the Administration officials whose failure to level with the public brought us to this point.

July 26, 2006 in Current Affairs | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 25, 2006

Big Dig Liability to State Limited

It's presumably gotten more press here than elsewhere, but there are, to say the least, some problems with the Big Dig project in Boston (beyond the problem that the $2.4 billion project became a $14.6
billion project).  A chunk of concrete fell and killed a passenger in a vehicle a week or two back and now ever more sections are being closed off.

Total potential liability on the part of Bechtel, who was in charge of the project, to the state?  $150 million.  Nice contract terms if you can get 'em.

July 25, 2006 in Current Affairs | Permalink | Comments (0) | TrackBack (0)

The Sun Is a Mass of Incadescent Gas and It Will Hurt You

The FDA has approved the use of ecamsule in a sunscreen.  Ecamsule provides protection against UV-A, the lack of which is the basis for lawsuits (see here and here for earlier posts).  It appears [PDF, search for "ecamsule"] that ecamsule is the same as meroxyl, which, as I noted in the second of my earlier posts, appears to already be available in L'Oreal products.  So: I'm still confused.

July 25, 2006 in Products Liability | Permalink | Comments (1) | TrackBack (0)

Monday, July 24, 2006

Pressure at the FDA?

Last week, the Union of Concerned Scientists announced the results of its survey of FDA scientists (997 of whom participated):

Of the 997 FDA scientists who responded to the survey, nearly one-fifth (18.4 percent) said that they "have been asked, for non-scientific reasons, to inappropriately exclude or alter technical information or their conclusions in a FDA scientific document."

61 percent said that political appointees had improperly injected themselves into decisions and 81 percent supported better post-marketing monitoring.

The press release has links to related materials.

July 24, 2006 in Experts & Science, Products Liability | Permalink | Comments (0) | TrackBack (0)

New SSRN Paper

Thanks to Andrea Peacock for posting last week.  I hope to read her posts soon and respond some; I hope you enjoyed reading her material.

For your Monday morning reading pleasure, Kevin A. Kordana (Virginia, Law) and David H. Tabachnick (Virginia, Philosophy) have just posted On Belling the Cat: Rawls & Tort as Corrective Justice to SSRN.

The abstract:

Recent scholarship has argued that post-institutional theories of distributive justice, specifically Rawlsianism, are compatible with a principled commitment to corrective justice. We argue that however attractive on independent or pre-institutional moral grounds a principled commitment to corrective justice and its corresponding model of tort law may be, it is misleading to think that the Rawlsian post-institutional conception of distributive justice is, at the level of principle, consistent with such an independent commitment. We argue that holding the truth of a maximizing theory of distributive justice in conjunction with a principled commitment to corrective justice is inconsistent. The attempt to hold both positions as true may flow, we suggest, from an unjustified presumption about the compatibility of post-institutional—particularly, maximizing—theories of distributive justice and other non-maximizing moral commitments which one might hold or view as appealing on grounds independent of one's commitment to distributive justice. In our view, the values enshrined in Rawls's two principles of justice (taken in lexical order) reflect the deontological features of Rawls's original position. The principles of justice themselves, however, once adopted, function as consequentialist maximizing principles, taken in lexical priority, in selecting between competing complete schemes of legal and political institutions. While the tension between the corrective justice and the utilitarian or wealth maximization conceptions of tort law has long been discussed and is well understood, the relationship between the corrective justice conception of torts and post-institutional theories of distributive justice (in particular, Rawlsianism) has only recently received sustained attention. Recent articles by Stephen Perry and Arthur Ripstein emphasize the compatibility—or even the necessity—of corrective justice (i.e., as an “independent” component of justice) within the Rawlsian distributive scheme. We argue, contra this emerging view, that distributive justice, in particular Rawlsianism, conflicts at the level of principle with corrective justice, and that it is inconsistent to remain (as a matter of principle) independently committed to both, given the Rawlsian view of property. In short, our central claim is that Rawlsian ideal theory is best understood as adopting the consequentialist (outcome-oriented) theory of tort law.

July 24, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, July 22, 2006

Guest Post: Justice

Bill Childs is on vacation this week. Filling in for him is author Andrea Peacock, telling the story of the W.R. Grace corporation’s tragic legacy in the small town of Libby, Montana. This is the final installment.


On September 11, 2006, five current and former executives from the W.R. Grace & Co. will face criminal charges for their actions in Libby (two others will have their trials next year). Among the counts in the indictment are charges of conspiracy, violations of the Clean Air Act, and obstruction of justice. (Portions of the conspiracy counts were originally dismissed by federal judge Donald Molloy for missing the statute of limitations, but have since been revised by the grand jury). These charges carry punishments of up to 15 years in prison, and in that, I venture, represent more justice than all the successful lawsuits in the world.

The big headline corporate criminal trials in recent years have been about money: stocks, pensions, retirement and health care funds. In Missoula, Montana, these men will be held accountable for stealing something much more valuable: years of people’s lives.

In honor of this occasion, I present to you today a more personal story; this one about an English teacher from Ohio.

Bruce Waite worked at Mansfield Senior High School his entire career. Though his degree was in history, he went to work in 1959 teaching English at this blue-collar school. During the course of 30 years, he taught adult education, practical reading, writing, history, poetry and speech. I took his classes in Great Books and Advanced Composition, where he taught classics to kids who, for the most part, weren’t expected to go to college. On his chalkboard every single day was this motto: “The road to mediocrity is heavily traveled, the path to excellence is seldom traversed.”

Waite started out in a classroom next to the boiler room in the school’s basement, and moved into the English annex after it was built in 1962. When Senior High was torn down in the summer of 2004, contractors surveyed and found the place was full of asbestos containing materials, including 644 square feet of asbestos floor tiles and “associated mastic” in Waite’s former classroom. These are not uncommon materials, and in Waite’s case, they were not safe materials either.

Bruce Waite died of mesothelioma on March 23, 2003 at age 66. Worker’s compensation reviewed his case, and found the disease sufficiently linked to exposure at the school to award benefits to his family. “He died the next day after my 63rd birthday,” his widow, Nancy, tells me. “I really think he held on for that because he was so sick. I remember the last thing he said to me. He looked at me and grinned and said, ‘Happy Birthday.’ He never spoke to me after that. He died the next night. Knowing him, he hung on just for my birthday.”



R.I.P., Mr. Waite.

Andrea Peacock

Livingston, Montana

Author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation

July 22, 2006 | Permalink | Comments (1) | TrackBack (0)

Friday, July 21, 2006

Guest Post: Watchdogs Take a Nap

Bill Childs is on vacation this week. Filling in for him is author Andrea Peacock, telling the story of the W.R. Grace corporation’s tragic legacy in the small town of Libby, Montana. This is part six of seven.

It’s amazing, in retrospect, that W.R. Grace was able to keep secret the asbestos contamination of their vermiculite mine in Libby as long as they did. A whole alphabet soup’s worth of state and federal agencies saw pieces of the puzzle: The federal Bureau of Mines, Mine Safety and Health Administration, National Institute for Occupational Safety and Health, the Montana Department of Health, all knew there was asbestos in Grace’s vermiculite. All either assumed the danger was controlled, or found themselves constricted by narrow mandates.

Even the Environmental Protection Agency had clues: the agency was nearly forced to take action when one of Grace’s corporate customers in Ohio came down with a rash of pulmonary diseases among its workforce. In response, the EPA planned a sweeping survey of the nation’s vermiculite industry, including a close look at the Libby mine, and was preparing to get down to business when Ronald Reagan was elected president. One of Reagan’s early acts was to appoint his friend, J. Peter Grace, to head the Grace Commission, ferreting out waste in government. The vermiculite study was, for all practical purposes, scrapped. (In a 2001 report investigating the EPA’s actions—or lack thereof—the Office of Inspector General concluded that a pitiful lack of communication was at fault for the agency’s failure to follow through.)

Make no mistake: only W.R. Grace saw the big picture. But in retrospect, the tragedy was born of abdication. No one with the power or knowledge or authority to remedy the situation took responsibility for doing so; they simply left the least powerful to fend for themselves. This is how the watchdogs took a nap. watchdogs.doc

Andrea Peacock

Livingston, Montana

Author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation

July 21, 2006 | Permalink | Comments (0) | TrackBack (1)

Thursday, July 20, 2006

Guest Post: Vermiculite Attic Insulation

Bill Childs is on vacation this week. Filling in for him is author Andrea Peacock, telling the story of the W.R. Grace corporation’s tragic legacy in the small town of Libby, Montana. This is part five of seven.

Katie Gaines and David Madison bought their house outside Glacier National Park just as the two were beginning their lives together. They’d been good friends for years, navigating a long-distance relationship. David had a job in North Carolina, Katie’s midwifery practice in Whitefish, Montana, was thriving. After several years of trying to negotiate the geography, David moved to Montana. Six months before their wedding, the couple made a discovery that put a serious dent in their bliss: Their new home had been insulated with asbestos-contaminated vermiculite from Libby, Montana.

Gaines and Madison are part of an increasing number of Americans who, in the wake of revelations from Libby, find themselves having to balance their health against their savings accounts. W.R Grace’s Libby mine was the world’s largest known source of vermiculite, and provided 80 percent of the vermiculite sold in the world. The Environmental Protection Agency estimates that upwards of 15 million buildings[i] in the U.S. were insulated with Grace’s vermiculite.

While scientists and technicians from the Denver office of the Environmental Protection Agency have spent the last six years trying to clean Libby’s homes and businesses, their efforts there underscore a larger problem: The long-established EPA safety limit of less than one percent asbestos in any given material—relied on to this day by the real estate and construction industries—has proven to be unreliable at best, deadly at worst. In the summer of 2004, the Centers for Disease Control announced some startling news: Asbestos mortality nationally has soared, from 77 asbestos-related deaths in 1968 to 1,493 in 2000.

Though a contractor told Katie and David the vermiculite in their attic was no big deal, they’d heard too many horror stories from Libby to feel secure. They decided to investigate further. From what they could figure, the previous owner had gone in with a shop-vacuum and sucked out what he could, in the process probably contaminating the entire house. A sample of the vermiculite in the attic tested positive for asbestos at .5 percent: well within the EPA’s safety standard of less than one percent, but a worrisome figure nonetheless.

The problem, says EPA doctor Aubrey Miller, a veteran of the Libby cleanup, is that one percent standard has proven to be meaningless. “Our work in Libby has clearly demonstrated that materials that have less than one percent—well less than one percent—are dangerous, and when we went back and reviewed the basis of that rule, the one percent rule, it had absolutely no basis essentially with regard to the hazardous nature of materials. One percent means nothing about whether something’s hazardous or not.”

Furthermore, an EPA pilot study of vermiculite attic insulation like that found in Katie and David’s house shows that even materials that test negative for asbestos may still contain dangerous amounts. The report released in 2003 from tests conducted in an old Vermont farmhouse revealed that vermiculite insulation which tested out clean for asbestos nevertheless threw the deadly fibers into the air, which samplers then picked up.

While the EPA is searching for an analytical tool that will allow homeowners to have their vermiculite tested in a way that is both accurate and cost-effective, none exists at this point. In May 2003, three federal agencies issued a joint national warning, cautioning homeowners living with vermiculite attic insulation to avoid disturbing the material. While this sounds simple, Miller says that vermiculite is very easy to stir up: put in a ceiling fan or putter around in your attic and you’re asking for trouble.

“If you have vermiculite attic insulation, it is a hazardous material. Period. Don’t touch it, don’t go near it,” he says. “If you’ve got it and you can get rid of it, then do so.”

Miller says he knows of no data regarding the health risks associated with sealing vermiculite in versus removing it altogether. As their wedding date neared, Katie and David consulted experts, had their air tested and faced a tough decision. The average cost of a home cleanup in Libby in 2002 was $150,000, more than they paid for their house to being with. Should they spend tens of thousands of dollars they did not have to remove all traces of vermiculite from their home, or have the walls sealed, the house cleaned with wet-wipes, and hope the best? They opted for the latter. They spent $6,825, and have finally stopped holding their breaths. “After it was totally cleaned, this fellow came in and we were out of the house. He used blowers and set up air quality monitors and all of those tests came back totally clear,” Katie says. “So that made us feel better about being in the living space.

“But you know, you feel like on hot days when you wish you had a fan in the attic, you realize you can’t because the attic is toxic.”

The EPA has set up a website for people who suspect they have vermiculite insulation in their homes:

Andrea Peacock

Livingston, Montana

Author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation

[i] Weiss, Chris (EPA toxicologist). Email to Andrea Peacock. 7/26/04.

July 20, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 19, 2006

Guest Post: Anatomy of Silence

Bill Childs is on vacation this week. Filling in for him is author Andrea Peacock, telling the story of the W.R. Grace corporation’s tragic legacy in the small town of Libby, Montana. This is part four of seven.

When news of the dead and dying townspeople of Libby, Montana, first made the papers, nearly everyone’s reaction was one of incredulity. How could so many people die and no one notice?

To a degree, it’s because the case of Libby is rather odd from a medical perspective. Most people who are diagnosed with asbestos-related diseases in the rest of the country are identified as such by their doctors partly because of their professions. A guy comes in who is having trouble catching his breath: he made a living as a general contractor or in a shipyard. This tells the doctor the patient may have been exposed to asbestos.

But in Libby, those few people who knew the vermiculite mine was contaminated with asbestos declined to share that information. So when a bank teller or fishing guide or housewife came in with breathing difficulties, the doctor wouldn’t have any reason to suspect asbestos as the culprit. Nevertheless, there were doctors in Libby who suspected something was wrong up at the mine: a couple cases of mesothelioma caught one’s attention:

As Dr. Richard Irons’ hospice program grew, he noticed a curious thing. “I started going to more funerals. And whenever someone from W.R. Grace would die, there would be [mine managers] Earl Lovick and Bill McCaig. And we waved to each other. We’d be there at the funerals. We’d bury these people, we’d go to their gravesites after the funeral and watch them put the caskets down and talk to family members.” He started keeping a list of the dead, a tally of the causes of death. When two cases of mesothelioma showed up, he went to have a talk with Lovick and McCaig.

“I’d say, ‘These people died from various forms of lung cancer. And mesothelioma is associated with asbestos, and there are two of these people. Isn’t that surprising? That’s a very rare tumor.’

“And they said, ‘Well what do you know. We knew about one of these, but gosh, that’s pretty unusual isn’t it? But of course if this was asbestos, we’d have a lot more of those. It couldn’t be that.’

But to complicate things further, Libby was essentially a company town. If a doctor didn’t play ball with the corporation, Irons’ discovered, that doctor would find himself with a thin practice. And so the secrecy continued.

While Grace’s culpability is undeniable, there were people who, had they spoken out, might have mitigated the damage, prevented a few deaths. Chief among these were local physicians. Libby’s tragedy took an unacknowledged pact of silence on the part of Grace, state and federal regulators, and the local medical community. Here’s how the doctors missed the clues: medical.doc 

Andrea Peacock

Livingston, Montana

Author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation

July 19, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 18, 2006

Guest Post: Mountain of Grace

Bill Childs is on vacation this week. Filling in for him is author Andrea Peacock, telling the story of the W.R. Grace corporation’s tragic legacy in the small town of Libby, Montana. This is part three of seven.

When I started writing about Libby, I believed that if I could understand what happened in Libby, Montana, I’d have some insight into the dark side of human nature.

Because the W.R. Grace corporation bought that vermiculite mine in 1963 with full knowledge that it was contaminated with asbestos; they conducted annual x-ray and lung function tests, maintaining a database of the extent of disease in its workforce (declining, however, to share that information with the miners); they knew the damage that would be wrought by asbestos not just in their employees, but also in their employees’ families; and they shipped their product to more than 200 processing plants across the country with reckless disregard for the health of those workers and the people in those communities (not to mention the consumers who would for decades live in homes insulated with the deadly ore).

But Grace’s actions in Libby went beyond activities that made them money: one doesn’t have to look hard to find malice. Managers donated mine tailings to pave the local high school and middle school running tracks; they allowed vermiculite to be used on the grade school skating rink; they left huge piles of the stuff lying next to the Little League baseball fields where kids who were too young to play ball would swing on a rope and leap off into them. They turned a blind eye when locals filled up their pickups with vermiculite that wasn’t up to grade, and took it home to put between their walls for insulation, and in their yards as soil conditioner.

It was almost as though managers for the W.R. Grace corporation wanted to kill as many people as they could, condemning even the town’s children to a slow and painful death.

These are bold claims, and I invite you to examine them thoroughly. What follows is a report based on interviews, depositions and court documents all available to the public: grace.doc . For your convenience, I am also including my source notes: bibliography_blog.doc . It’s gets a little technical here and there, and for that I apologize. I am also sorry to say that in the end, I found no insight, no understanding, only this map to the darkness that lurks in the soul of humanity.

Andrea Peacock

Livingston, Montana

Author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation

July 18, 2006 | Permalink | Comments (2) | TrackBack (0)

Monday, July 17, 2006

Guest Post: Dying

Bill Childs is on vacation this week. Filling in for him is author Andrea Peacock, telling the story of the W.R. Grace corporation’s tragic legacy in the small town of Libby, Montana. This is part two of seven.

     Whenever asbestos reform legislation comes before Congress, the asbestos industry puts forward sick and dying people (or the relatives of sick and dying people) to complain about how their legal claims are held up while those of healthy people clog the system. While one’s heart aches for anyone touched by these diseases, to use these victims against one another is, at its core, a cynical, manipulative strategy, using pieces of truth to distort reality.

     Because the fact is, anyone correctly diagnosed with an asbestos-related disease is most assuredly going to die of it. Given the propensity of asbestos manufacturers to declare themselves bankrupt, there's a good argument to be made that those so-called “healthy” people are wise to get their claims in while there’s still someone left to help with the medical bills. 

An often-overlooked consequence of these diseases is that they rob their victims of life long before actual death. In Libby, they cast a pall on the future: in many families, children watch their parents die with the understanding that the future holds the same for them.

Today, I want to introduce you to Gayla Benefield. She’s imposingly sharp-tongued and quick-witted, liable to say exactly what’s on her mind at any given moment (she was once quoted in Missoula’s alternative weekly paper as saying “Fuck You” to then-Gov. Judy Martz). She’s a mother and a grandmother, but it was her role as daughter, caregiver to her dying parents, that turned her into a hero for people who no longer had the breath to speak for themselves. This is what it’s like to die of asbestosis. This is Gayla’s story. vatland_family.doc

Andrea Peacock

Livingston, Montana

Author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation

July 17, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 16, 2006

Guest Post: Libby, Montana

Bill Childs is on vacation this week. Filling in for him is author Andrea Peacock, telling the story of the W.R. Grace corporation’s tragic legacy in the small town of Libby, Montana. This is part one of seven.

Libby, Montana is a tiny community in the far northwestern corner of the state. You can’t go any farther north without hitting Canada, any farther west without ending up in Idaho. This small town straddles the Kootenai River, between mountain ranges sufficiently remote to support grizzly bears, wolverines, lynx and mountain lions. It’s Eden for people who like to live close to the land. And it’s the stage for one of the most tragic stories of the 20th century.

     Since people first settled here in the late 1800s, Libby’s economy stood on two legs: logging and mining. The mine in question was the world’s largest body of vermiculite ore, operated first by the locally-owned Zonolite company, purchased in 1963 by the multi-national W.R. Grace & Co. Unfortunately, vermiculite is often (though not always) associated with asbestos. In Libby’s case, the mine was contaminated with several forms of asbestos which, for convenience sake, most people refer to collectively as tremolite asbestos.

     Workers dug away at the mountain of vermiculite six miles northwest of town for nearly 70 years. During that time, the State of Montana, several branches of the federal government, and W.R. Grace, all were aware to some degree of the risks: but no one told the men.

     Grace’s crimes went beyond those of omission. The corporation, with full knowledge of the nature of the hazardous material in its mine tailings, discharged its waste where kids could play in the fluffy piles next to the Little League baseball fields, donated it to pave the high school and middle school running tracks, and allowed townspeople to load up their pickups and haul it home as a soil conditioner for their yards and insulation for their homes. They sold an old loading facility to a family who intended to turn it into a plant nursery. And they told their workers it was nuisance dust, refusing showers and uniforms to the men, measures that might have saved their wives and children from the second-hand exposure that has since killed many of these family members.

     As a result, more than 200 people from this community of 8,000 have died of asbestos-related diseases, and nearly 1,200—almost 18 percent of the more than 6,000 people screened—have been diagnosed with associated lung ailments. Furthermore, Grace exported its asbestos-contaminated vermiculite to the world, selling it under a variety of trade names (chiefly Zonolite and Monokote) to insulate an estimated 15 to 35 million buildings in the U.S. (more on this in a couple days).

     Now, when one is diagnosed with an asbestos-related disease, one is most certainly going to die from it (unless, as one of Libby’s victims Gayla Benefield is fond of saying, “you get smacked by a truck first.”) And as these diseases can take decades to manifest, it is sadly clear that Libby’s tragedy may soon be America’s as well.

     In September, seven current and former Grace executives will face criminal charges in federal court for their actions in Libby. What I’d like to do during this next week is put a human face on these events, providing links where appropriate to more technical and historical information about the case.

     I thought I’d start by taking you on a tour today of Libby during the days when the mine was in operation. Our guide will be Les Skramstad. He and his wife Norita are immigrants to Libby, though they’ve lived there now for more than 50 years. Les stopped through in 1954 to visit friends, and ended up stranded when the temperature dropped to 14 below and his engine block cracked. He met Norita and they fell in love; stayed to raise their kids. They’re a family of musicians, and created a band out of their five children. They’re not wealthy, but are the kind of people who took whatever work they could find, always making room in their home for other people’s kids who had nowhere else to go. For a couple years, Les worked for Zonolite—the corporation that preceeded Grace on Vermiculite Mountain. Now, for the sake of those few paychecks early in his married life, Les is dying. Norita has been diagnosed, and so have two of his five children.

     I’d like you to get to know the Skramstads, because each of those 1,200 diagnoses is a family like theirs, each of the 200 dead a grave marker with history and mourners.

This is Libby’s story: skramstad.doc

Andrea Peacock

Livingston, Montana

Author of Libby, Montana: Asbestos and the Deadly Silence of an American Corporation

July 16, 2006 | Permalink | Comments (0) | TrackBack (2)

Friday, July 14, 2006

Reminder: Guest Posts Next Week

As I noted earlier in the week, Andrea Peacock, author of Libby, Montana: Asbestos and the Deadly Science of an American Corporation, will be blogging here next week.

A criminal trial of seven current or former Grace employees will begin in September (case materials here).  Grace itself was dismissed on statute of limitations grounds.  Remediation in Libby continues, but even areas that have theoretically been cleaned up are sometimes found to have substantial amounts of vermiculite (including, as noted in the story, a site immediately adjacent to a planned memorial to people injured or killed by the material).

It promises to be an interesting week, and I hope readers will comment as well.  I will be heading out of town tomorrow mid-day, so there may be no posts until Andrea starts up on Monday.

July 14, 2006 in Products Liability | Permalink | Comments (0) | TrackBack (0)