Attorney jersey mesothelioma new

Not knowing about the potential hazards of Zonolite attic insulation cost Ralph Busch his peace of mind, his good credit rating - and his Victorian home on Spokane's South Hill.

"I was the unsuspecting do-it-yourselfer who set out to remodel my beautiful old house. I set off a time bomb," Busch said.

Three years ago, he and his wife, architect Donna Duncan, had ripped out portions of their kitchen when the news hit about Zonolite attic insulation, a vermiculite product from Libby, Mont., manufactured by W.R. Grace & Co. that contains tremolite asbestos.

If inhaled, tremolite's tiny hooked fibers can cause asbestosis and mesothelioma, a rare and fatal cancer of the lung lining that suffocates its victims. The fibers can be seen only under a powerful microscope.

Busch found out - too late - that the attic insulation he had crawled through for weeks was Zonolite. It was drifting down into the bedrooms, onto the walls and floors of his home.

What's happened since has uprooted the family - and thrust them into a lawsuit with national implications.

Busch and Spokane landlord Marco Barbanti are among 10 plaintiffs nationwide whose lawsuits against W.R. Grace have been chosen for a "science trial" on Zonolite attic insulation, sold by Grace for more than 60 years.

Grace's science trial will determine whether there's credible evidence for the claim that Zonolite creates a significant health risk.

Busch will attend the science trial in Pittsburgh in September.

"What I want out of this trial is something we still don't have - the right to know" the risks in a clear statement from public health officials, he said in an interview last week.

Judith K. Fitzgerald, a U.S. Bankruptcy Court judge for the District of Delaware, has ordered Grace to pay for the trial.

Grace filed for Chapter 11 bankruptcy reorganization in April, 2001, citing $2.3 billion in debts, including nearly $1 billion for asbestos liability.

Science trials are becoming more common, said David Bernick of Kirkland & Ellis in Chicago, lead counsel for W.R. Grace.

Kirkland & Ellis, representing General Electric, has successully fought off claims over the last decade for radiation injuries brought by thousands of Eastern Washington people exposed to clouds of radiation from Hanford during the Cold War.

"It has now become part of the federal rules of evidence that the court has to decide whether the science is reliable enough to proceed," Bernick said.

Judge Fitzgerald will also determine whether a portion of Grace's assets should go to pay for Zonolite property damage and remediation costs.

Because Zonolite is in millions of American homes, the property damage claims may dwarf the personal injury claims against Grace, said Spokane attorney Darrell Scott.

"Zonolite is the 800-pound gorilla in this bankruptcy," Scott said. He represents Busch and Barbanti.

His class action filed in Spokane County Superior Court on behalf of 50,000 Washington state homeowners with Zonolite in their homes was stayed by Grace's bankruptcy.

In the science trial, experts for Grace are expected to portray the EPA's concerns about Zonolite as "junk science," stressing the small amount of asbestos it contains.

Experts for the plaintiffs will emphasize Zonolite's potential for floating through homes in dust and the cancer-causing risk of the tiny tremolite particles.

Losing to pollution

If Busch had known then what he knows now, he said he never would have disturbed the attic insulation in his $93,000 house.

When he learned the attic was full of Zonolite, he called in asbestos experts for bids to remove it.

"We discovered it had migrated throughout the house - into the walls and between the floor and ceiling joists. It would have been around $60,000 to get all of it," he said.

That would only have gotten them back to the point where they could resume the remodeling.

Busch informed his mortgage company, which said it could do nothing. His homeowners' insurance refused to pay. A home inspector had misidentified the insulation as Perlite when they bought the house in 1998, but the inspector couldn't be held responsible because few people knew then that Zonolite contains asbestos.

Busch asked Atlantic Mortgage & Investment Corp. if he could deed the house over to the company rather than face foreclosure. He and his wife felt they had to move to protect their health.

"It wouldn't have had the devastating effects on our credit. They denied us that," he said.

The couple reluctantly decided to stop making their mortgage payments. They apologized to the mortgage company in a September 2001 letter.

"We wish to express our profound regret, apologies and sadness over the extraordinary circumstances and hardships now leading to the necessary sacrifice of our home at 1512 West 14th Ave.," their letter says.

Last May, the mortgage company foreclosed. Unable to buy another house due to their wrecked credit rating, the couple is renting an apartment in the Spokane Valley.

"I hate to think anyone else would have to face the same nightmare we have. It wouldn't have happened to me if there had been some information out there about this stuff," Busch said.

Now, the house stands empty. The Zonolite inside has been tested by dueling scientific experts who wore moon suits and respirators.

Experts for the plaintiffs say the remodeling kicked up dangerous tremolite fibers, while Grace's experts say very few fibers were disturbed.

At the science trial, the experts also will debate which asbestos detection methods are appropriate.

In one of Barbanti's homes on West Mallon, asbestos experts shone a bright Tyndall light through the Zonolite cloud to measure the asbestos fibers.

Their tests found seven to 12.5 fibers per cubic centimeter of air - far above the EPA's limit of .01 fiber per cubic centimeters. The attic also exceeded asbestos limits for workers, the tests show.

Next came experts for Grace, including Morton Corn, an environmental engineer and emeritus professor with Johns Hopkins University.

Grace's experts said the plaintiffs' results were "artificially skewed" to show higher asbestos concentrations. Their tests show far lower contamination, with nondetectable or only background levels of asbestos.

What should the public know?

Last month, Scott and other creditors' attorneys won a major battle in the first phase of the Grace bankruptcy.

Bankruptcy Judge Alfred M. Wolin of the U.S. District Court of New Jersey is overseeing a large set of bankruptcy proceedings involving asbestos, including Grace's bankruptcy.

Plaintiffs' attorneys argued in Wolin's court that Grace had fraudulently transferred assets to another company, Sealed Air, in an effort to avoid liability for personal injury cases.

Grace denied it had fraudulently transferred any assets. But in a settlement reached in December, Sealed Air agreed to contribute about $512 million in cash and 9 million shares to the Grace bankruptcy. That money will be made available for Grace's creditors.

Meanwhile, the EPA and the White House are embroiled in a political tug-of-war over what to tell the public about Zonolite.

Last May, the EPA said it would immediately begin to remove Zonolite insulation from 800 homes and businesses in Libby, at an estimated cost of up to $16 million.

But the agency canceled its plans to issue a national consumer advisory.

An EPA memo obtained last week by The Spokesman-Review says Grace asked EPA last year to "do nothing" to warn Americans about Zonolite, contending the product is safe.

Several EPA regional staffers say they're outraged over the political pressure.

"References to Zonolite have been scrubbed from our web site. Everything on Zonolite is totally controlled by EPA headquarters and the White House," one EPA official said on condition of anonymity. EPA employees have been asked to not to speak publicly about Zonolite.

Barbanti, the Spokane landlord, says EPA's silence makes his job a lot tougher.

"We could have used an EPA warning. The political stifling of the EPA has caused me problems because I don't know what to tell people," said Barbanti, who has nearly 50 rental houses in Spokane.

At least three and probably more of his houses have Zonolite in the attic, Barbanti said.

Two years ago, he lost a renter with a baby in a home on West Mallon after learning about the presence of Zonolite in a ceiling directly above the baby's crib.

He sold that house to a developer who plans to demolish it.

Barbanti hands his other renters inch-thick disclosure documents describing what he knows about Zonolite. Landlords are required by law to disclose the presence of hazardous substances on their property.

"It's an unfolding dilemma. You have to stop and think, should these places even be occupied?" Barbanti said.

He'll go to Pittsburgh if his testimony is needed in the science trial.