The efforts of school districts and state governments to recover from asbestos manufacturers the billions of dollars it costs to remove the material from buildings may be in trouble as a result of two recent jury verdicts, industry lawyers said.
Two federal juries have found that asbestos companies should not be held liable for removals costs. Asbestos, which has been linked to cancer and other diseases, once was widely used as a fire retardant and as insulation in schools and public buildings.
Industry attorneys said the verdicts upheld their position that asbestos levels in most of the buildings are not hazardous. Several plaintiffs' attorneys said, however, that it is too early to predict how the spate of lawsuits ultimately will be settled.
The Environmental Protection Agency has estimated asbestos-containing materials can be found in about 31,000 schools and 733,000 other public and commercial and public buildings.
Approximately 100 school districts have filed suit against more than 50 companies. Most of the suits contend that the companies sold the schools friable asbestos -- which crumbles when dry -- without adequate testing or warnings about the health danger it poses. Numerous state governments, including Maryland and Virginia, also have filed suit over the cost of removing asbestos from public buildings.
Meanwhile, a national class-action suit involving schools has been certified in federal court in the Eastern District of Pennsylvania. .
Last week, a South Carolina federal jury found that two former asbestos makers, National Gypsum Co. and U.S. Gypsum Co., were not liable for the $284,000 cost of removing asbestos from school buildings in Spartanburg, S.C. The finding came several months after a similar finding for the same companies by a Tennessee jury. A third case was settled out of court.
Lawrence T. Hoyle, a Phi- ladephia lawyer representing National Gypsum, said his firm's two victories showed that juries can understand the complexity of the cases, despite what he called a climate of emotionalism associated with asbestos litigation. "The defendants are going to win a lot more than the plaintiffs because we've shown that you can't stampede juries," he said.
"The manufacturers justifiably believe that, given the track record of being 2 and 0, if other trials occur, they will win again," said another attorney, who asked not to be identified. "The plaintiffs should have concern about the strength of their cases."
Several plaintiffs' lawyers contend that their clients still have good cases. Edward J. Westbrook, a Charlestown, S.C., attorney representing the Spartanburg schools, said the judge in that case excluded important evidence supporting the claim that the asbestos manufacturers knew about the danger and failed to warn.
"You can't determine from these cases how several hundred cases are going to turn out," he added, pointing out that asbestos manufacturers won many of the early personal-injury lawsuits brought by workers. That trend, however, has been dramatically reversed.
Unlike the personal-injury cases, one of the main problems in the property-damage lawsuits has been determining the extent of the health risk posed by the presence of asbestos in buildings. Although many school districts and governments have put millions of dollars into asbestos removal, industry spokesmen said the levels of asbestos in most buildings is well below levels permitted by the federal government.
Lawyers representing school districts, however, said that asbestos at any level constitutes a risk. Because diseases associated with asbestos show up from 20 to 40 years after initial exposure, the full extent of the health damage has not yet been manifested, they said, and argued that the substance should be removed.