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Bill currently excludes Libby victims

| April 27, 2005 12:00 AM

BY ROGER MORRIS Western News Publisher

The provision providing Libby asbestos victims with criteria specific to tremolite asbestos exposure have been dropped from federal legislation but it is expected to be added this week.

The provisions were added to the draft bill two weeks ago by Montana U.S. Senator Max Baucus. When judiciary committee chairman Sen. Arlen Specter, R-Pa., introduced the Senate Bill 852 — the Fairness in Asbestos Injury Resolution Act of 2005 — on April 19, the Libby provision was missing.

This week is considered a critical time in the evolution of the bill, said Roger Sullivan, attorney for the small Kalispell law firm that represents more than 400 Libby victims. An optimistic Sullivan said efforts are underway to fix the bill.

"We are trusting in the end that fairness will prevail and there will be such a provision in the final bill," Sullivan said.

The present language in the bill puts Libby victims of asbestos-related disease in the same category as chrysotile asbestos victims. Very few Libby area people would meet that criteria for asbestos-related disease because tremolite-caused disease develops and evolves differently.

The bill is scheduled for an all day markup session on Thursday when the judiciary committee will make its final decisions about the content and form of the legislation before it is released to the full Senate.

"I'm cautiously optimistic," Sullivan said. "I remain hopeful that as it winds its way through the process of the next week or two that it will return a provision that benefits Libby victims."

The senate has been trying to pass a "fairness" bill since 1999 when the growing number of asbestos-related civil cases began choking the legal system nationwide. Original legislation sought to absolve companies of asbestos liability but the federal law has come to encompass a asbestos compensation fund for victims and a ban on continued commercial production of asbestos products.

The bill would create a $140 billion national trust fund to replace the existing litigation-based system for victims of asbestos-related disease. Defendant companies would be required to pay $90 billion into the fund with the insurers paying $46 billion and the remainder coming from existing asbestos compensation trust funds.

Baucus managed to add a provision recognizing that victims of tremolite asbestos were suffering from a different disease and needed different criteria to qualify for compensation. That provision would guarantee Libby victims that they would get at least $400,000, which is substantially more than the average — $216,000 — award that Grace paid out in the few cases that reached trial before the company filed for bankruptcy.

In addition to establishing a $400,000 floor of compensation for Libby residents, Baucus was able to get Specter to include several provisions that take into account Libby's special circumstances, including: exempting Libby residents from strict medical and asbestos exposure criteria to qualify for compensation; allowing family members and other Libby residents to qualify for compensation in addition to former W.R. Grace workers; allowing people to be compensated from the Asbestos Trust Fund as well as other sources such as Medicaid and Medicare.

Also, language was included allowing Baucus to advance his proposal establishing a new Libby Health Care Fund. The Montana senator is proposing that Grace establish a $250 million health care trust for Libby before the corporation is allowed to come out of bankruptcy.

Gayla Benefield, a Libby victims advocate, remains concerned about the proposed legislation.

"A lot of people don't realize it has changed," she said. "They think they're going to get $400,000."