For three years, Jan Schlichtmann wandered the beaches and rain forests of Hawaii, trying to escape the case that made him famous. His failed prosecution of two companies accused of polluting the drinking water in Woburn, Mass., inspired the best-selling ecothriller "A Civil Action." But the 1986 trial also left the flamboyant young lawyer broke, and, he admits, "broken in spirit." A Boston judge had dismissed his case against one defendant on a technicality. The other defendant, chemical maker W.R. Grace & Co., settled midtrial for $8 million, leaving Schlichtmann bankrupt, his partners furious and the victims bitter. "I lost my moorings, my career, my desire to have a career," he says. Humiliated, Schlichtmann left for Hawaii in 1990, vowing never to practice law again.
Four years later Schlichtmann had a change of heart. Restless, he returned to Boston and rebuilt his name as a tenacious environmental lawyer. Now, 15 years after losing the biggest case of his career, Schlichtmann, 49, is once again going up against W.R. Grace. The company is a defendant in a class-action product-liability suit alleging that its Zonolite Attic Insulation contains hazardous levels of asbestos--a charge W.R. Grace denies. The suit asks the court to order Grace to warn nearly 1 million consumers nationwide who installed the product in their homes that they could be exposed to asbestos if the insulation is disturbed--and to pay any cleanup costs the court may order. Grace argues that the measures are unnecessary. "These lawsuits are not driven by real homeowners with real problems," says Grace spokesman William Corcoran, "but by lawyers seeking to capitalize on the public's fear of anything relating to asbestos."
This time around, Schlichtmann and Grace are more evenly matched. Green and cash-poor when he tried the Woburn case, Schlichtmann is now of counsel to Lieff, Cabraser, Heimann & Bernstein, a deep-pocketed San Francisco firm. Grace, meanwhile, is no longer the $8 billion Goliath he once faced. After restructuring and financial troubles, much of it the result of other environmental lawsuits, the company's stock has plummeted and its revenues are now $1.5 billion. Even before the Zonolite suit, current filings with the Securities and Exchange Commission showed that the company was already a defendant in 58,225 asbestos-related lawsuits stemming from unrelated sales of its commercial fireproofing products. Last month Standard & Poor's downgraded Grace's credit rating, citing the company's asbestos-related liabilities, estimated at $898 million.
The backdrop for the looming legal rematch is an impossibly beautiful corner of northwestern Montana, still home to grizzly bears and bald eagles. There, between 1963 and 1990, Grace mined the earth's largest vermiculite deposit, located on the outskirts of the town of Libby (population: 2,675). A mineral that expands when heated into spongy, popcornlike kernels, vermiculite was Grace's all-purpose wonder product. It was sold worldwide under the name Zonolite as attic insulation, soil conditioner and construction material. Yet Libby's vermiculite ore, Grace now acknowledges, also contained a "tramp"--or contaminant--mineral called tremolite: a rare, barbed asbestos crystal known to cause devastating lung disease if inhaled in sufficient quantities. A recent federal health study found that today, Libby residents suffer from asbestosis, a progressive thickening of the lung linings, at a rate 60 times the national average. Once symptoms begin, "the lungs lose their elasticity and it's like breathing with your hand over your mouth," says Dr. Brad Black, Libby's public-health officer. Eventually, the plaque so stiffens the lungs that victims suffocate. Grace does not dispute the medical findings. "There's no question that people with legitimate health claims in Libby have them because of Grace," says Grace spokesman Corcoran. "but we feel we did everything we could with the knowledge that was available to us at the time." Grace insists it complied with ever-shifting federal and state regulations limiting asbestos exposure, which were tightened significantly during the 1970s and 1980s. Alarmed by the high incidence of lung disease among its workers (a 1969 Grace study found that 92 percent of longtime workers had abnormal chest X-rays), the company took steps to reduce dust at the mine. But it was only as scientific knowledge evolved, Grace says, that it became clear in hindsight that workers and residents had been exposed to harmful levels of tremolite asbestos. Schlichtmann and his legal posse aren't buying the explanation. "So much of this suffering could have been prevented if this company had been willing to be honest in the past," says Schlichtmann. "The people of Libby are literally choking on lies."
Bob Wilkins, who worked at the mine for more than 30 years, recalls that in the late 1970s, mine managers seemed to know in advance when federal and state inspectors would show up at the mine, and would order workers to hose down the dust prior to the "surprise" inspections. Grace says the mine complied fully with all state and federal regulations. Today Wilkins, 73, has advanced asbestosis. He can't speak without stopping to gasp for air. Last year he settled a personal-injury claim against Grace out of court for a "sizable sum" he is not allowed to disclose. "It's not going to get me my lungs back," he says.
Gayla Benefield, another Libby resident, took up the cause against Grace after losing both her parents to asbestosis. Her father, a miner, died in 1974; her mother in 1996, and had begged Benefield to avenge the family's suffering. In 1998 Benefield sued Grace for wrongful death. When Grace offered to settle for $660,000, she refused. A jury later awarded Benefield $250,000. Now 57, the gravel-voiced grandmother has collected thousands of legal documents and runs a community-action group from her log house on the outskirts of town. Schlichtmann says community activists like Benefield are far more threatening to Grace than a lawyer like him. "That's a lesson I learned from Woburn. When the people say 'no more,' a company has to come to terms with its past. Writing a check is not the same as telling the truth.''
So far, more than 200 families have filed personal-injury lawsuits against Grace. With each new case, says Roger Sullivan, a Kalispell, Mont., lawyer who has represented many of the plaintiffs and now works with Schlichtmann, "we noticed that the circle of victims kept expanding." And the health problems may not have been limited to Libby. Over the years the EPA has investigated cases involving workers at Grace processing plants in other states who also became ill. These incidents sparked the idea for the Zonolite-insulation class-action claim.
The plaintiffs say their case may get a boost from Grace's own research. Last year Sullivan's firm discovered Grace documents that the firm says seemed to indicate Grace had had concerns about its insulation for years. According to the documents, filed in the Zonolite suit, in 1977 Grace scientists at the company's facility in Weedsport, N.Y., simulated the installation and removal of Zonolite Attic Insulation. They then tested for airborne asbestos. In some cases, the plaintiffs' lawyers say, Grace's own results showed levels of airborne fibers, including asbestos, five times higher than the federal limit. Grace spokesman Corcoran says that the laboratory tests may also have included the presence of fibers other than asbestos and are therefore "not conclusive" and should not be interpreted "out of context." Grace says if the insulation is not disturbed, then there is no measurable asbestos exposure.
That same year, according to documents filed by the plaintiffs, a manager in Grace's vermiculite sales division cautioned in a memo to his superiors that "the decision to affix asbestos warning labels to our products would result in substantial sales losses." Grace continued to market Zonolite Attic Insulation in bags labeled non-irritating to lungs and skin and contains no harmful chemicals. Corcoran says Zonolite was and is still an "asbestos-free product," since it has always complied with federal consumer standards mandating that a product can be labeled asbestos-free if it contains less than 0.1 percent by weight. Paul Peronard, the EPA's on-site coordinator in Libby, concedes that different federal agencies issued conflicting asbestos standards. Even so, he says, "let's use the decent-guy standard. If 92 percent of your workers have lung disease, then you know something is wrong."
This April a federal judge in Boston will attempt to sort out the conflicting versions of what Grace knew and when--and what risks, if any, homeowners living with Zonolite insulation face. The chance to battle his old adversary in court has not proved nearly as appealing as Schlichtmann imagined during his hikes in Hawaii. "I used to think it was about punishing a company for doing wrong," he says. "Now I see my mission as a lawyer as getting people to embrace reality and learn from the mistakes of the past." As he heads into court, Schlichtmann seems confident that he's learned from his own.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
");jQuery(this).remove()}) jQuery('.start-slider').owlCarousel({loop:!1,margin:10,nav:!0,items:1}).on('changed.owl.carousel',function(event){var currentItem=event.item.index;var totalItems=event.item.count;if(currentItem===0){jQuery('.owl-prev').addClass('disabled')}else{jQuery('.owl-prev').removeClass('disabled')} if(currentItem===totalItems-1){jQuery('.owl-next').addClass('disabled')}else{jQuery('.owl-next').removeClass('disabled')}})}})})
ncG1vNJzZmivp6x7r7HWrK6enZtjsLC5jpqlqKyYmr9ur8ivoKVlkZjBqrvNZmhubWNuhg%3D%3D