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New Asbestos Suits Put School Districts At Risk for Damages

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Lawsuits charging two New York school districts with inadequately responding to the hazards posed by asbestos could usher in a new wave of litigation in the field, legal experts said last week.

In Yonkers, the estate of a 32-year-old former student who died last year of an asbestos-related disease is suing the school district because, the suit contends, officials knew, or should have known, about the threat posed by the substance when the deceased attended Walt Whitman Junior High School there.

And in New York City, teachers at Clara Barton High School have filed a class action on behalf of all students and staff members at the school since 1984, when renovation work that released asbestos particles was begun. An asbestos inspection conducted by the district before the renovation found no asbestos in the school.

Experts in the field said that, to their knowledge, the Yonkers suit is the first to seek damages from a district on behalf of a former student allegedly injured by school exposure. The New York City case, they said, is the first in which a district is being sued because of inaccurate inspection results. Other districts have been sued by employees who worked with asbestos.

In interviews last week, lawyers familiar with asbestos litigation said the New York cases highlight the potential liability of school districts when dealing with the cancer-causing substance--even when officials follow federal and state guidelines concerning its monitoring. And they said that compliance with newly released federal regulations may not guarantee immunity from future suits. (See Education Week, Oct. 21, 1987.)

"If I were a school district," said Daniel Speights, a South Carolina lawyer who has represented many districts in suits against asbestos manufacturers, "I would be careful and prudent and do everything that a jury could reasonably expect me to do."

'Should Have Known'

The Yonkers case involves the death of Richard Barnett, a physician who died last year from mesothelioma, a disease linked almost exclusively to asbestos exposure. His lawyers, who filed suit in August, claim that his only exposure to the hazardous substance was while attending Walt Whitman between 1967 and 1970.

The district closed the junior high school in 1983 for an asbestos-removal project. Although it is now free of asbestos, the school remains unused because of an unrelated desegregation suit.

District officials maintain they did not know about the hazards posed by asbestos 20 years ago. "Certainly the district had no knowledge at the time," said Lawrence Thomas, a lawyer for the district.

But Donald Marlin, Dr. Barnett's lawyer, said the district was negligent for not knowing about the asbestos hazard. "They knew, and if they didn't, they should have known," he said.

Mr. Marlin, who said the suit seeks "tens of millions" of dollars in compensatory and punitive damages, said the estate is also suing asbestos manufacturers.

Gwendolyn Gregory, deputy general counsel for the National School Boards Association, said that while all districts should have known about asbestos hazards by 1982--when the U.S. Environmental Protection Agency issued regulations requiring all schools to inspect for friable asbestos--not all schools were aware of the problem before that date.

"Because asbestos companies went to such great lengths to conceal," she said, "it was pretty difficult for the schools to know about the dangers."

'Not the Last'

In New York City, school officials found no asbestos when they inspected the Clara Barton school in the late 1970's. But a second inspection, completed this summer by an outside consultant hired by teachers in the school, found that asbestos had been released during the exten8sive renovation work begun in 1984.

Lawyers for the teachers claim that the district was negligent in allowing the renovations to proceed without taking proper precautions.

The suit asks that all members of the class be notified of the long-term effects of asbestos exposure and that they be provided with free medical examinations to monitor their health.

Bonnie Mussman, a lawyer in the New York City corporation counsel's office, which is defending the district, said that the city has agreed to give notice to the occupants of the building about their exposure to asbestos and will coordinate a presentation by an asbestos expert for the parents of current students.

She said the building's occupants would also receive an educational brochure on asbestos. But she indicated that the question of medical expenses had not been decided.

"This is the first" such suit, said Richard Fischbein, a lawyer for the teachers, "but it will not be the last."

Potential Liability 'Tremendous'

To prevent future lawsuits, experts last week advised districts to exercise extreme care when fulfilling the requirements of the new federal asbestos law.

"If you don't do it right, the potential for liability is tremendous," said August W. Steinhilber, general counsel for the nsba

Mr. Speights of South Carolina recommended that districts keep good records on the manufactuers of their asbestos products "while the evidence is still around."

Then, he said, "in the event of such a lawsuit, they can point a finger at the guilty party."

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