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Worries for 'the Asbestos Companies of the 1980's': Lawyers Foresee Future Liability Suits Against Schools

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Schools "may be the asbestos companies of the 1980's," Daniel A. Speights, a South Carolina lawyer who has been involved in asbestos litigation, warned members of the American Association of School Administrators at a recent conference in Washington.

Mr. Speights told the audience that 20 or 30 years from now, "You or your school district or your individual board members may be sued by the victims of asbestos disease" who received that exposure in a school.

He added: "There may not be any risks in the schools--I'm not the medical doctor, I only read the medical literature. But if there is a risk, if disease does manifest itself down the road, you'd better have some ready answers if you're faced with that type of lawsuit."

Employee Claims

Lawyers say that workmen's compensation probably prevents school employees from bringing personal-injury cases against school officials for asbestos-related diseases contracted on the job. However, several school districts are now involved in asbestos-related workmen's compensation hearings and lawsuits by employees.

The New Jersey Education Association last month filed suit in state superior court against 157 school boards and 125 as-yet-unnamed asbestos maufacturers and contractors for the costs of periodic medical checkups for some 60,000 school employees who may have been exposed to asbestos hazards.

The 157 districts named in the suit, approximately one-quarter of all school districts in New Jersey, were identified by the Environmental Protection Agency or the state department of education as having asbestos in their buildings.

The suit seeks an estimated $9 million to set up a trust fund for regular medical examinations for teachers, custodians, and other school employees in those districts, according to Robert P. Broderick, spokesman for the association.

Mr. Broderick said the school system's workmen's compensation program would not cover the costs of such routine health examinations. He added that adequate medical surveillance is needed to try to forestall the progression of asbestos-related diseases "through early detection.''

A lawyer for the New Jersey School Boards Association has stated that the manufacturers, and not the local districts, should pay for the costs of the examinations.

Los Angeles Case

In Los Angeles, the law firm of Geffner and Satzman is representing some 80 employees of the heating- and air-conditioning repair unit of the Los Angeles Unified School District in hearings before the workmen's compensation appeals board of California.

The employees are seeking compensation for asbestos-related diseases that their lawyers claim were contracted in the course of working on the schools' pipes and forced-air heating ducts.

Barry Satzman said workmen's compensation is needed in each case to ensure that the employees receive adequate medical attention.

Because the school board switched from the state compensatory-insurance fund to a self-insured status in July 1976, there is some confusion about which insurance group is now responsible for covering the employees' needs. Most of the employees show only the earliest signs of asbestos-related disease, such as minor scarring of the lungs, Mr. Satzman said. But he added that each man represents an incipient lawsuit against the asbestos manufacturers as their diseases progress. Some 35 such lawsuits are now being considered.

Baltimore Case

Clifford W. Cuniff, a Baltimore lawyer, is representing a former public-school employee, Irwin Taylor, in U.S. District Court in Baltimore. Mr. Taylor was a carpenter with the Baltimore school system from 1948 to 1981. He is currently suffering from acute asbestosis (a progressive scarring of the lungs) that keeps him housebound.

Mr. Cuniff filed the case in June 1983 against 14 different asbestos manufacturers and distributors that he says produced materials that were installed in Baltimore's schools. Mr. Cuniff is also representing Mr. Taylor in his fight to gain workmen's compensation from the school system.

Although many of the lawyers interviewed for this report had heard of one or two such cases, they said that most lawsuits are still to come.

Suits by Former Students

The real threat of lawsuits against schools, lawyers caution, is not from workers but from former students who develop asbestos-related cancers as adults from asbestos exposure in the schools. Former students, according to Mr. Speights, could "sue, I would think, anybody in the decision-making process--that is, those who have the authority to abate the asbestos hazard and refuse to do so. That would probably be the board. It would be the superintendent. It just depends on the individual state."

School officials could be in a particularly vulnerable position, he cautioned, because they have invited--and in fact compelled--the students to enter their buildings under mandatory-school-attendance laws. "In turn," he said, "the school authorities are obligated to take reasonable precautions for their safety and well-being."

Immunity Theory

Some states, Mr. Speights noted, currently prohibit suits against representatives of the government, such as school-board members, under sovereign immunity theories that hold that state officials can do no wrong. But he added that "the lengthy latency period between exposure and the development of illness makes it impossible to predict what liability school-board members may face in the future when former students discover the effect of their exposure. ... It is entirely possible that future courts will find liability where health hazards were obvious and a board member nonetheless refused to act."

In addition, in recent years a number of courts have rejected the concept of governmental immunity, he said.

In general, the South Carolina lawyer said, school attorneys he has talked with say their insurance policies would not cover such lawsuits. "I also know that many school boards have investigated whether they can now obtain insurance for that, and in general they have not been able to obtain insurance against that risk."

"I personally don't think that such a suit [a personal-injury suit] would be very successful in the immediate future," said Daniel Berger, a lawyer in the Pennsylvania product-liability case. "But there would be a basis for a suit, if the Environmental Protection Agency test revealed the presence of asbestos; the district did nothing about it; after that time, somebody was exposed to asbestos; and then 20 or 40 years from now, somebody contracted an asbestos-related disease."

"A suit now by someone who says, 'I was exposed 20 years ago in the school,' would probably fail on the grounds that the victim was just as knowledgeable as the school--that is, they didn't know anything," Mr. Berger said. "The school didn't have any duty to do anything because it was completely unaware of what the situation was at the time."

On the other hand, he added, "If they [the school] knew that the encapsulation or remedial work was inadequate, or had reason to believe that it was inadequate--for example, if they were getting advice to remove the material and instead they just put up a sign telling people to stay out of the area--then there conceivably might be the basis for charging that they were negligent and created an unreasonable risk of harm by failing to remove the material."

"I personally think that there's going to be another wave of lawsuits," said Robert Wright, a Fresno, Calif., attorney who was the primary author of the 1981 Attorney General's Asbestos Liability Report to the Congress.

"It's a little difficult to tell who [those lawsuits are] going to be against," he said. "School districts are certainly an obvious target. ... We're going to start seeing a lawsuit filed virtually every time somebody dies of mesothelioma, and I would think that the school districts may be the most easy to track down of the defendants because there are public records."

But he added: "If a school district simply takes effective action to do the right thing, as an indirect effect, that will maximize their protection. ... I don't think the fear or threat of future litigation should be the prime motivation in this context. It's a simple matter of safety."

Failure to Act

Some school districts have al-ready been brought into court for failing to abate an asbestos hazard.

Parents in the South Orange-Maplewood School District in New Jersey, for example, recently brought a case against their school district for failure to adequately inspect for and contain hazardous asbestos. The court allowed the parents to bring their own inspectors into the schools to determine whether the buildings were safe. The court is retaining jurisdiction over the case as asbestos cleanup and school renovation continue.

"A parent or an employee of the school could seek to have a court force a school district to abate any asbestos hazard under a variety of theories, but basically premised upon the obligation of a school district to provide safe premises for schoolchildren," said Mr. Speights.

Suits' Likelihood Uncertain

While such suits may become more common, Mr. Speights said he did not think there would be many of them. But Mr. Berger argued that they are "the most likely type of suit."

Such suits might also become more common if the federal government developed regulations requiring schools to correct their asbestos problems and schools violated these regulations.

Federal rules currently require schools to identify friable asbestos in their buildings and to notify the public and school employees when such asbestos is found. But the government does not require schools to do anything about the hazard. The Service Employees International Union has filed suit against the epa for failure to move rapidly in its consideration of such regulations.

Lawyers also note that if such regulations were approved, they might give schools an even better standing in court for the recovery of abatement costs by providing a federal mandate for their actions.

In any event, some lawyers suggest, schools may also be brought into court if they fail to try to recover public tax dollars spent on asbestos removal.

Fiscal-Responsibility Issue

The attorney general's report noted that schools faced with personal-injury suits could also attempt to turn the liability back upon the manufacturers, as ultimately responsible for the hazard. The report added that statutes of limitation would not apply in such cases--a school could seek to turn liability over to the manufacturer at any time that it was brought into such a lawsuit.

Mr. Wright noted that it may be prudent for schools to consider suing manufacturers now for future indemnity against personal-injury claims by students.

"When we prepared The Attorney General's Report," he said, "we were quite influenced by a fairly recent decision at that time, holding that such a claim was not entertainable, but I don't think that's the final word." He added that some schools are now including such claims in their lawsuits against manufacturers.

Anticipating Lawsuits Now

Mr. Speights pointed out that schools can take a number of steps now to prepare for lawsuits against asbestos manufacturers and to protect themselves against lawsuits in the future. These include:

Abating any existing asbestos hazard now in a reasonable and safe fashion;

Saving samples of any asbestos products removed from a school so that tests can be run on them later to identify the products;

Identifying the manufacturer of the asbestos products now in school buildings by doing a thorough check of all school records, including sales records, and the records of contractors, subcontractors, and architects. (Lawyers, he said, may also be able to obtain the sales records of defen-dants, local supply houses, and suppliers.);

Interviewing people involved in the construction of school buildings to get written statements of what they recall about the situation;

Demanding from the manufacturers of school-asbestos products that they abate the asbestos hazard or compensate the schools for their abatement activities;

Retaining adequate records now of the abatement process, including the samples taken, the laboratories that were used, etc. (including a request that the laboratories not throw away any samples);

Photographing areas in the schools that contain friable asbestos and photographing or videotaping the removal process itself for later presentation to a jury; and

Acting quickly, so that the case does not get thrown out of court because of a statute of limitation.

"The best thing that a school district can do to ensure against being sued in the future by the victims is to identify the manufacturer of the product," said Mr. Speights. "Regardless of whether or not they intend to sue, by going through this step, schools will at least be in the position down the road of advising potential victims who the manufacturer was, so they can look to that most culpable party as the one who should bear the cost. If schools have done product identification in a legally sufficient form, then they've gone a long way towards helping themselves on the liability problem."

Added Mr. Cuniff: "I'm not interested in suing the school districts. When confronted with the opportunity to go in and sue a local school district or a multinational corporation, the decision is easy. I don't anticipate that there are going to be lots of [personal injury] suits unless you can't identify the manufacturer or the school districts are not cooperating."

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