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West Virginia University asbestos testing approved

By Ken Ward Jr.
Staff writer

December 23, 2005 - A Kanawha County judge on Thursday approved a $3 million legal settlement meant to help West Virginia University employees detect the early signs of asbestos-related lung diseases.

WVU agreed to the deal to resolve a five-year-old lawsuit by employees who alleged the university wrongly exposed them to dangerous levels of asbestos in campus buildings.

The settlement is believed to be the first such “medical monitoring” program to actually be implemented in West Virginia. In 1999, the state Supreme Court allowed workers and consumers to recover costs of such testing when exposure to toxic substances makes them likely to become sick.

“This is somewhat of an historic agreement,” said Kanawha Circuit Judge Tod Kaufman, who approved the settlement proposed by the parties in late November.

Under the settlement, about 5,600 current and former WVU employees would be eligible for lung tests and other exams to detect asbestos-related illnesses.

The program is expected to cost about $2 million, according to court records. WVU will pay that amount out of its general budget, lawyers said.

WVU will put money and staff for the program in place by late January, and the initial tests should start by April, according to the final settlement.

Current and former non-student employees who worked at least five years at WVU between 1986 and 2006 will be divided into groups based on potential exposure for different levels of health screenings.

The 20-year program is slightly scaled back from the 40-year monitoring plan originally proposed by an expert for the workers.

Still, that expert, Dr. James Lockey of the University of Cincinnati medical school, called the final arrangement “responsible, fair and even progressive by today’s standards.”

“It is based on good, preventative medicine,” said Cleveland lawyer Robert Sweeney, who represented WVU workers in the class-action suit. “We can’t undo the exposure these class members had, but if we can catch a lung cancer, we can save lives.”

Steve Fowler, a lawyer for WVU, noted that no one had come forward to object to the terms of the deal. “I think that shows it is a good settlement,” Fowler said.

Under the agreement, WVU will pay $1 million to cover legal costs and expenses for Sweeney’s firm, the Charleston firm of Bickley & Jacobs and Morgantown lawyer Gary Rich, who also represented the university employees.

Court records show the lawyers sought $862,000 in legal fees and costs. They also wanted to use $25,000 from the $1 million insurance policy to pay an industrial hygienist to help with the medical testing program.

Under the settlement, the balance of the insurance payment — $113,000 — would be put in trust to be used “for the benefit, health and safety” of WVU employees.

But last week, Kaufman appointed Charleston lawyer Tom Goodwin as a special commissioner to examine the proposed legal fees and expenses and determine how much should be paid.

“Since there is little precedence in West Virginia for how attorneys’ fees will be awarded by the court in a medical monitoring case, Mr. Goodwin will have wide latitude to explore the issues and make the recommendation to the court,” Kaufman wrote.

Trial in the case had been scheduled for mid-July, but the parties informed Kaufman shortly before that of a settlement worked out during mediation run by former Kanawha Circuit Judge Andrew MacQueen.

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

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 — first uncovered by The Charleston Gazette — which showed that the university knew about, but did not take action on — asbestos insulation in the Coliseum ceiling that was in “poor” condition and “significantly damaged” since at least 1992.

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.

When it announced the settlement, WVU issued a statement that said the university “maintains that all standard, recognized practices for asbestos removal have been followed over the years, and that the general population of employees, through routine monitoring of buildings and air samplings, remain safe from any harmful effects of asbestos-containing materials.”

However, 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 other WVU buildings.

And, WVU got into trouble with regulators over the cleanup of the Coliseum 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.

To contact staff writer Ken Ward Jr., use e-mail or call 348-1702