Special Report

Cost of negligence: Capco’s silence on how deadly asbestos was leads to plethora of lawsuits from Ragland families

By Jessica Centers and Matthew Korade
Star Staff Writers
03-28-2005

Pat and Richard Archer enjoy a little quiet time on the screened-in back porch of their Ragland home. Richard is a central figure in the latest asbestos lawsuit to come from the Cement Asbestos Products plant in Ragland. Photo: Trent Penny/The Anniston Star RAGLAND — Every day for nearly 20 years, the town saw more than 30 trucks hauling cement asbestos pipes, on their way to water systems across the country and around the world. The pipe was strong, it didn’t wear out, and developing communities thirsted for it. Cement Asbestos Products Co. — the centerpiece of Ragland’s economy — churned out that pipe by the mile. Most days, 100 men worked the Capco shop, many of them neighbors grateful to find a job in their hometown. Side by side, they labored in a fog of white dust with death in its midst. At first, there were 50-cent masks for those who found the dust annoying. Years later, the plant splurged on 10 of the $35 masks that sealed like vacuums against a few workers’ faces. The men hung the masks up at the end of each shift, letting dust collect inside for them to breathe the next day. A lawyer once asked Roy Jackson if there were any warnings to let the men know inhaling asbestos might steal decades off their lives. As a manager, Jackson each month posted a notice from the Occupational Safety and Health Administration in the lunchroom and by the time clock. The notice, in its locked, glass case, let workers know that if they had a problem on the job, OSHA was there to help. That’s the closest thing to a warning Jackson said he ever saw. Perhaps, he says now, after scores of Capco employees have died and he, too, bears the scars, mandatory pulmonary tests should have been a warning. The tests, passed off by Capco doctors and upper management as rote procedures, should have signaled workers that the tiny, jagged shards in the air they breathed were a threat. "We really didn’t know," recalled Jackson, who joined the rolls of the Capco ill, dying or dead when he developed asbestosis. A decade after Capco closed in 1982, as men began to get sick, court testimony revealed that the company they had worked for, that was seen as a savior to the town, knew all along that asbestos kills. Documents revealed that Capco executives kept information from employees that might have saved their lives. That knowledge brought modest settlements to more than 100 workers and widows, amounts that left plaintiffs like Jackson wondering if they were taken advantage of twice. An industry’s denial Truth is a funny thing to Pat and Richard Archer, who built their financial future with money earned on Capco’s line. Now, with lungs encased by a tumor that is his job’s legacy, Archer stands a central figure in the latest asbestos case to come out of Ragland. It’s racing against federal legislation that aims to squash it and all that follow. Financially, he and his wife say, they could afford to drop the lawsuit, but others not so fortunate need him to fight. "They should compensate us for something since they didn’t try to protect us," he said of the asbestos industry. "They could’ve warned us if they wanted to. They knew about it from the time they started using it. They just kept on using it. They’re still using it." In 1993, as a Birmingham law firm prepared to represent Capco workers in court, a paper trail of internal documents already had tied a noose around the industry’s neck. Documents revealed that companies hid the dangers and expressed disregard for whether employees lived or died. The following comment is from a 1966 letter the director of purchasing for Bendix Corporation, now part of Honeywell, sent to asbestos giant Johns-Manville: "My answer to the problem is: if you have enjoyed a good life while working with asbestos products why not die from it." Evidence in court was so damning companies acknowledged that their outlook was bleak. "The documents noted above, however, show corporate knowledge of the dangers associated with exposure to asbestos dating back to 1934," wrote a trustee of the Manville Trust in 1988. "In addition, the plaintiffs’ bar will probably take the position — not unreasonably — that the documents are evidence of a corporate conspiracy to prevent asbestos workers from learning that their exposure to asbestos could kill them." A circle of blame grows Back in Alabama, dozens of former Capco workers packed the Environmental Litigation Group office as attorney J. William Lewis told them about the lawsuit he was preparing. Workers couldn’t sue Capco because state law requires claims against an employer be filed through workers’ compensation. Alabama’s statute of limitations on those cases is two years, even though asbestos diseases take 10 to 50 years to emerge. The attorneys instead sued a handful of company managers and an asbestos fiber supplier, Lac D’Amiante du Quebec, or LAQ. The case was filed 1993. They argued that management’s negligence and LAQ’s failure to warn exposed workers to dangerous asbestos levels. They were disabled, losing time from work and requiring treatments that sapped the financial resources they had left. They sought awards of more than $120 million in two lawsuits, at least $1 million for each client. The defendants said they’d provided proper safeguards and had warned of the dangers. Contacted recently at his Birmingham office, William H. Mills, an attorney for the defense, said the company had a safety program based on the best knowledge available. "There were regulations in effect at the time that they fully complied with," Mills, who represented LAQ, said. LAQ also argued that it didn’t have to warn Capco workers because its customer — their employer — knew about asbestos hazards. To explain why one supplier was singled out, plaintiffs’ attorney Martin Berks points to Capco’s history. In the early 1960s, the demand for asbestos cement pipe was high. To get into the business, William Bond, president of a Birmingham-based cast iron pipe company, Woodward Iron, started a joint venture with the American Smelting and Refining Co., ASARCO. Capco was created with Woodward as the majority shareholder and ASARCO as the minority. Woodward owned National Cement in Ragland, next to where Capco would be; ASARCO subsidiary LAQ mined asbestos. Capco bought its cement from National Cement and the majority of its asbestos fibers from LAQ. "They basically created a market for their own products," Berks said. "And they knew from day one that it was dangerous and that it could hurt people. They probably knew more than anybody how dangerous asbestos was." The defendants never disputed that point in court. Both sides illustrated the extent of industry and company knowledge as part of their arguments. Plaintiffs’ lawyers used, and the defense borrowed, the testimony of Dr. Richard Lemen, later director of the National Institute for Occupational Safety and Health. Lemen testified that industry members should have been aware of asbestosis in the 1930s, lung cancer by 1955 and mesothelioma in 1960. His chronology of industry knowledge pointed to trade magazine articles dating to the 1930s on asbestos hazards. Warning signs ignored Capco’s managers testified that they investigated the hazards of asbestos before the plant opened. In 1962, Bond sent the manager of his Alabama Pipe division to asbestos pipe plants in Europe to observe. S. Davis Weaver, Capco’s first vice president and general manager, applied what he learned to the construction of the plant, hiring consultants who’d worked entire careers in the asbestos industry. Weaver amassed a file on the health effects of asbestos, including connections to lung cancer and mesothelioma, a rare, aggressive cancer in the lining of the chest or abdomen. He collected articles such as "Rare cancer linked to asbestos" in a 1964 issue of Rock Products, and "A Danger in the Dust — Cancer Doctor Finds New Worry: Asbestos" from the San Francisco News Call Bulletin. They pointed to a rise in mesothelioma, lung and gastrointestinal cancers in asbestos workers. Weaver testified that the articles were brought to Capco supervisors’ attention and given to workers. Contacted by phone recently, Weaver declined to discuss Capco at any length. "We put up notices and we warned the people. . . The (court) records show that," he said. "Whatever’s in the court records are what we did, and we did it honestly." Weaver denies knowing that any workers became sick and died from asbestos in the plant. "The records didn’t show that … I don’t know anyone who’s sick – not from that," Weaver said. Jackson, the former manager, counts 54 dead, most with asbestosis, like him, or lung cancer, and nine diagnosed with mesothelioma. One of the nine was a man he hired. He worked at Capco for just two weeks, sweeping dust across the floor and into his lungs. "You get a guy a job and think you’re doing him a favor," he said. "I didn’t do him one. He didn’t live through it."

Attorney Martin Berks is representing Richard and Pat Archer in their asbestos lawsuit. Photo: Trent Penny/The Anniston Star ‘Bad publicity’ a fear In 1970, the new Occupational Safety and Health Administration was establishing an exposure standard for asbestos dust and ordered companies to do dust counts. In an internal memo reviewed by The Anniston Star, Bond instructed Weaver to check with him before doing dust counts: "We don’t want to arouse curiosity or concern on the part of the employees. [With] the problems we are having in the coal mines and the dust pollution problems from asbestos, I think we better . . . take all steps necessary to prevent employee reaction with the bad publicity that’s been given the industry." In 1971, Weaver sent Bond a memo saying that after a "visual inspection tour," which by workers’ accounts would have shown him a plant filled with dust, Weaver felt it was best to put off monitoring. In 1972, Capco plant manager Horace Beasley testified before the U.S. Department of Labor on the proposed standard for exposure. He testified to Capco’s awareness of the dangers of asbestos and its recognition of its responsibility to warn and protect employees. "We are desirous of having our employees’ environment as clean as possible," he said, according to court records. "We recognize the importance of having a respiratory protection program for all personnel. Employees should be made aware of all the potential hazards of asbestos dust exposure." It was around that time that Richard Archer, a machinist at Capco, received a phone call from Beasley at home. Archer had just failed the breathing test at his annual physical. Beasley told him not to be "talking it up and spreading it around" at work. At the time, Archer thought his boss just didn’t want him stirring up trouble. "I didn’t get the point," Archer said. "I realize what he was talking about, now." Beasley refused to comment when contacted by The Star. "It was 23 years ago," he said. "I’m not interested in getting involved with it." Looking for a future Pat Archer talks about her husband every time he leaves their living room. She speaks for him — partly because talking too long leaves him breathless, partly because chemotherapy has cost him much of his hearing, and partly because he is too modest to talk about himself. He has mesothelioma, an incurable cancer caused by inhaling asbestos fibers. He worked 12 years at Capco. He stepped out to look for an old pay stub to give his lawyer. "Mr. Archer," she began. "He set his own things in motion for retirement, little by little. He knew if he put it aside, he could take care of his own retirement." A lifetime of saving has left the Archers comfortable even while paying for expensive treatments and new medications. He returned with a check stub from 1969: $84 for the week. The Archers grew up in Ragland and were classmates at the town’s only school from first grade on. As newlyweds, they moved to Gadsden, where he went to trade school. Back then, he said, if you didn’t work at National Cement, you didn’t have a job in Ragland. It was the couple’s parents who, in 1964, relayed the news about the Capco plant coming to town. "Maybe if I get on the ground floor of this plant, I can work on up to have a good job, a future with this company," Archer told his wife. He worked on the line where the pipe ends were finished. All around him pipe was broken, shattered and cut. Behind him, bags of raw asbestos were opened. All those years he could see the dust, and not once did anyone tell him to put on a mask, he said. By the time his lawsuit was filed, Archer had been diagnosed with asbestosis – a scarring of the lungs. As is typical in toxic tort cases, a doctor for the defense saw the plaintiffs. "He told us there wasn’t anything wrong with us," Archer said. "I asked him if he could guarantee that I would never have cancer from it. He never would say. He’d just look at the wall." Ten years later, a diagnosis of mesothelioma didn’t shock Archer. He had been expecting it. A maze of litigation The Capco claims were split into two lawsuits, one filed in 1993 on behalf of 51 plaintiffs and one filed in 1996 for 67. In both, claims against the managers were dismissed, and LAQ reached confidential settlements with the plaintiffs. The Star obtained settlement documents from the second case, resolved in the summer of 2001 with a $3.6 million settlement. At that time, the company agreed to a system for additional compensation for present and future illness. For mesothelioma – LAQ would pay $1 million, minus money already paid to that claimant. A payment for lung cancer depended on factors including whether a plaintiff smoked and the length of employment, resulting in a scale of about $170,000 to $540,000. Berks, formerly an attorney with Environmental Litigation Group, took the second, unsettled Capco case with him when he left to form Environmental Attorneys Group. The original firm represents the asbestos claims of about 8,000 clients across Alabama. Many of their clients — including those in Ragland — are a party to two massive asbestos lawsuits in Texas, each involving about 4,000 plaintiffs and 40 defendants. Texas, in the past, has been a popular state in which to file asbestos claims, because plaintiffs’ lawyers considered its tort laws to favor their clients, experts say. The defendants in the Texas lawsuits are companies that either made a product containing asbestos that plaintiffs were exposed to at their jobs, or companies that made a safety product that failed to protect plaintiffs from exposure at their jobs. The lawsuits are played out in trial groups against individual defendant companies and usually end in confidential settlements. With their LAQ awards and settlements from Texas, the most-injured plaintiffs have received hundreds of thousands of dollars. A plaintiff who died of mesothelioma, for example, was awarded more than $1 million from LAQ and more than $250,000 total from 19 different settlements in Texas. After attorneys’ fees, his family received less than $650,000 from LAQ and less than $160,000 from the Texas lawsuits. For most, the settlements have been a fraction of that. On Sept. 11, 1995 — the day the first Capco group got its checks — Jackson got a phone call two hours before the meeting with the lawyers. He had received a letter saying his award would be more than $100,000, but now the lawyers told him he wouldn’t get that much because his statute of limitations had run out. At the meeting, plaintiffs were told that they had to sign off on the agreements, or no one would get a penny. "It’s appreciated," Jackson says of the money, the specific amount of which he and other plaintiffs are barred from disclosing. "But the thing about it, compared to what the lawyers get, they get so much more than we do." Fred Campbell, the youngest of five brothers who worked at Capco and were struck with an asbestos-caused illness, tears up describing one brother, Ricky, and his 10-year fight with asbestosis before he died. "If you could have seen my brother and the shape he was in, you’d see what this was all about," Campbell remembers telling his lawyers. "But they don’t care," he said. "They just cared about the money." ‘No one left to sue’ When Richard Archer was diagnosed with mesothelioma, seven years after his case in the first Capco group settled, his wife went back to attorney Lewis. He told her it was too late for them to be compensated for his cancer. Unlike Berks’ settlement for the second group, the first didn’t reserve money for future illness. Now Berks says his clients may soon lose the right to receive their future payments. LAQ’s $3.6 million settlement was guaranteed by its parent company, ASARCO, but it went unpaid for years while the defendants battled insurance companies in court. Today, $400,000 is still owed. Over the past few years, ASARCO, bought by Grupo Mexico in 1999, has been selling its stock to its parent company. Berks says the company soon will cease to exist. "Once ASARCO’s gone and LAQ’s gone and Capco’s gone, which basically they are, there’s really no one left to sue," he said. Earlier this year, Berks filed a lawsuit for the Archers against a new defendant, Mead Corp. Mead bought Woodward Iron, Capco’s majority shareholder, in 1968. Berks argues that Mead was responsible for employee safety from 1968 until it sold its majority interest in Capco to ASARCO in 1976. He hopes to settle for all Ragland plaintiffs. He worries that the law in Alabama, and recent moves by other states to bar out-of-state asbestos lawsuits, already may have spoiled his chances. In Alabama, a person’s right to sue for exposure-caused injury depends on when he or she was exposed. The law allows two years from the date of diagnosis to file suit – if the exposure occurred on or after May 19, 1979. Those exposed before that date had two years from the date of last exposure to file suit. "If you did file your case within two years, it would get thrown out because you’re not sick yet," Berks said. To avoid that issue, Berks normally also files his cases in Mississippi or Georgia. Both states now have laws barring out-of-state asbestos cases. Archer left Capco in 1976. He was diagnosed with mesothelioma in 2003. In the eyes of the legal system, it may not matter that he is dying of a disease caused only by asbestos. Julia Golden reflects on her family’s life following her husband’s death from cancer. Bob Golden’s death left his family in a financial bind. Photo: Stephen Gross/The Anniston Star ‘Not getting any better’ The Archers have put most of their settlement money into a scholarship fund for the children of their church and toward their main goal — a cure. Richard Archer said he filed the second lawsuit for the same reason he filed the first: Companies knew the danger and didn’t warn him. Out of her husband’s earshot, his wife gave another reason. A friend at church told them to think about other men who worked at the plant, men whose families might not be as well off financially. They might need this money, and they were running out of time. "If it hadn’t been for that, I don’t think we’d go through this again," she said. For nearly two decades, Capco paid for the roofs over more than a hundred local homes and put food on just as many dinner tables. It was Bob Golden’s only livelihood. When he was diagnosed with lung cancer, he went straight from chemotherapy back to the plant. When Capco closed in 1982, no one would hire him. He was too sick. He filled his days working on his garden, stripping and refinishing furniture, fixing up his parents’ house for his youngest daughter’s family to live in, and building Broken Arrow Baptist Church. He crawled through his garden the last time he planted his seeds because he was so weak. One morning, eating breakfast, he said, "Hey, Babe," that’s what he called her. "You know I’m not getting any better." He had already had a miracle, living with lung cancer long enough to raise his children. He couldn’t ask for another. "He looked at me and said, ‘Life goes on, Babe,’" his wife, Julia Golden, remembers. "From then on, I saw he was dying." He wanted her to get her General Equivalency Diploma and get a job so she could support herself. He had nothing to leave her except a $5,000 life insurance policy he’d taken out when he was 25. They had been living on Social Security and disability since Capco closed, but managed to send their youngest to Jacksonville State University. Julia Golden was a two-time breast cancer survivor with silica in her lungs and no advanced education or trade skills aside from what it took to keep a home and raise three children. Who would ever hire her? For the first time in her life, she worried about money. It may have been the least of her problems as she faced losing her husband and two brothers from asbestos cancers, but it was the only one that a lawsuit could help. For most of Capco’s workers and their families, any remaining compensation to ease the burden of medical bills and lost wages will come from the Texas lawsuits. Bankruptcies have eliminated or reduced more than 25 of their potential awards. The plaintiffs, beaten down by their illnesses and by the realization that their employer valued profit more than them, talk about the situation in defeated tones. They’re puzzled by the logic behind the version of the Fairness in Asbestos Injury Resolution Act making its way through Congress. As they understand it, the bill would reduce victims’ awards and let the companies off the hook. "That’s unfair," said Darlene Lane, who watched mesothelioma kill her husband. "These people lost their lives making a living. Most of these companies, all they’re doing is reorganizing." "It’ll get passed this time," Rudolph Henderson said of the asbestos bill. "They’ve got more Republicans." Henderson has lung cancer. His son, who worked just two summers at the plant, has mesothelioma. "That’ll be the end of it," Tandy Payne chimed in. He has silicosis. "It’s just about the end of it anyway, with companies going bankrupt instead of paying it off. It’s just a way of avoiding it too," added Jack Daffron, who has asbestosis. "Government supports the corporations," Henderson said. "Crooked politicians. Poor people ain’t got a chance." What’s a life worth? • Sunday: Ragland and its residents bear the scars of the country’s industrial asbestos epidemic. • Photo gallery • Today: Surviving Capco workers pursue their case for compensation and justice. • Photo gallery • Tuesday: Asbestos lawsuits, and the people involved in them, have been a fixture in American courts for years. A look at the movement to change that system. • Wednesday: Victims say the debate over asbestos ignores one important point: the need for a cure to the cancers it causes. • COMING SOON: A follow-up series that explores asbestos regulation and its legacy. More information • Republicans, Democrats differ on asbestos compensation • Chart: Asbestos-related deaths • Table: Asbestos statistics • Map: U.S. deaths from mesothelioma since 1979 • Survey: Attitudes about asbestos litigation • Timeline: What the industry knew ... and when it knew it Jessica Centers, a University of Missouri graduate, covers health and the environment for The Anniston Star. Her e-mail address is jcenters@annistonstar.com. Her phone number is (256) 235-3549. Star senior writer Matt Korade is a New York native and holds a master's degree from the Columbia University school of journalism. His e-mail address is mkorade@annistonstar.com. His phone number is (256) 235-3546.