Promises kept: bankrupt asbestos corp. makes good on pledge

Imagine having your neighbor dump a load of toxic waste in your backyard. Wouldn’t your first priority be for him to clean up the mess?

After six years, a now-bankrupt asbestos manufacturer has made good on its pledge to help fund mesothelioma research. The Mesothelioma Applied Research Foundation received $432,000 from Owens-Corning over the holidays, and it happened because of teamwork, persistence, and a vision.

About 3,000 Americans are diagnosed with mesothelioma every year. This asbestos-caused cancer most often results in a swift and agonizing death. Why? Because since the tumor was first recognized in the 1940’s, no serious effort has ever been made by industry and government to unlock the scientific secrets to cure the cancer.

This doesn’t mean that money has been lacking. Since the 1960’s, when Americans began demanding in court that the companies who poisoned them pay restitution, billions of dollars have changed hands. In the 1990’s, when the poisoners began to file for bankruptcy protection so they could escape asbestos liability, billions more changed hands. Now that trust settlement funds have been established, billions more will flow.

But money to “clean up the mess”—to find a means of detecting, inhibiting, and curing mesothelioma? No way.

In 1999, asbestos lawyer Roger Worthington had a vision: bring together scientists, doctors, lawyers, and asbestos companies to fund mesothelioma research. His simple premise: put the money into research and work to find a cure by creating MARF. Two of the largest asbestos manufacturers, W.R. Grace and Owens-Corning, joined the board because it made good business sense. Scientists and surgeons like Dr. Harvey Pass and Dr. Robert Cameron came aboard. Owens-Corning pledged one million dollars to the new organization for asbestos cancer research. The time had come for people with often opposing interests to focus on the one shared goal: cure mesothelioma.

Like other good ideas, the merits of Worthington’s vision could be measured by the resistance it met. At a Hawai’i conference in 1999, Worthington unveiled the new foundation, replete with its respected board of scientific advisors and asbestos manufacturing representatives. The status quo was appalled, and conference attendees derided the project as a “sell-out.” Worthington was literally shouted off the podium.

The “sell-out,” of course, was what had been happening to mesothelioma patients for fifty years: little new research, no coordinated strategy, and no standard of care for their illness. As Worthington pointed out, “Sick people deserve treatment, and mesothelioma deserves serious research. MARF is about curing mesothelioma. What have the critics done to advance the cause?”

Over the history of MARF, the great irony is that the ones who have suffered most – the patients and their friends and families – have given the most. MARF has received almost 2,000 donations from relatives and loved ones of mesothelioma patients. These include a substantial number of large, memorial contributions that directly increase MARF’s ability to fund research. Barbara Hoffacker donated $150,000 in memory of her husband, Hans, and was instrumental in the formation of MARF’s Family Advocacy Board, a patient network support group.

Jim Seiler, a management consultant in San Juan Capistrano, California, donated $100,000 to MARF. Jim lost his wife Linda, an actress and singer, to mesothelioma in 2001. Oncologist and MARF Science Advisory Board member Dr. Claire Verschraegen recently donated her entire deposition fee to MARF after testifying for one of her mesothelioma patients. The list of donors and those who have given time and expertise is graced primarily by those who have suffered from or witnessed first-hand the ravages of the disease.

The hardest part hasn’t been getting help from ordinary Americans who have been poisoned and killed through no fault of their own. They’re the first to volunteer, just like the men and women at Ground Zero. The hardest part has been getting lawyers who’ve made billions, and corporations who’ve made tens of billions, to cough up anything at all.

Owens-Corning made its first payment of $100,000 in 1999, proving their intent to help look for a cure. But when bankruptcy protection under Chapter 11 beckoned, Owens-Corning withdrew beneath the tent. The remaining $900,000 was never collected, and not because the company was on hard times. Their business was strong enough to afford a NASCAR sponsorship, to the tune of $6-$18 million per season. Lawyers who had sharply criticized the MARF mission continued to work the courtrooms for substantial mesothelioma verdicts, but refused to help fund research. One study shows that after fees and costs, only 40% of the estimated $70 billion consumed by asbestos litigation wound up in the victims’ pockets. The rest went to trial lawyers, defense lawyers, and experts. No one can argue that this is a sensible way to attack the public health problems of asbestos cancer, especially when the bar doesn’t put some of its profits back into research.

The combined value of the bankruptcy debtors, as more companies sought to hide from their obligations to asbestos victims, was over $60 billion. Although the funds were ostensibly set up to help asbestos victims, much of the kitty was being wasted on bankruptcy lawyers and accountants. An analysis of six large asbestos company bankruptcy claims shows that a total of $1.3 billion was spent on legal fees and costs alone, without a single cent put away for research to “clean up the mess.”

In the face of these numbers and with the support of the MARF board, Worthington began to lobby for some old-fashioned economic justice. “‘Billions for bankruptcy lawyers but not one cent for research’ just didn’t seem like much of a motto,” he says. “We should fund mesothelioma at the same rate we fund other types of cancer research, and these trust funds have the resources to do it. We spend less than $3 million on mesothelioma research, with an annual national budget for other cancer research in the billions, or tens of billions. That’s not fair, and it’s bad health policy, because the number of people who die from this lethal illness is on the rise.”

Since no national disease registry for mesothelioma exists, the number of victims is likely much higher than 3,000, simply because the illness is so often misdiagnosed. Research holds the key. In the same way that an 18-year, $29 billion investment in AIDS turned it from a uniform killer into a manageable illness, mesothelioma victims stand to benefit from more research dollars and a long-term commitment to early detection, prevention, and treatment.

The tobacco trust fund settlement set aside $730 million for cancer research and smoking prevention. Similar allotments for asbestos cancer research should be aggressively pursued, and MARF’s holiday check from Owens-Corning proves that settlement fund managers can be convinced.

Worthington’s conviction that a promise made was a promise that deserved to be kept infected MARF executive director Chris Hahn, who squarely put the Owens-Corning $900,000 IOU in his sights.

Hahn and a pro-bono lawyer from Simmons Cooper turned on the heat, making smart and insistent arguments to the Owens-Corning settlement fund that research deserved a seat at the table. For the first time in history, a debtor trust cut a check to a nonprofit foundation whose mission is to cure mesothelioma. Those naysayers who blasted the MARF mission almost eight years ago, meanwhile, have yet to give the foundation a dime.

If one bankrupt debtor can donate to mesothelioma research, so can other debtors, so can trial lawyers, so can defense lawyers, and so can the federal government. Debtor trusts have an obligation to fund research and give beneficiaries the right to choose whether to set aside a percentage of the trust proceeds to asbestos cancer prevention, detection, treatment, and cure.

It took almost seven years for this landmark check to clear, and the corporations that poisoned millions have a duty to compensate, prevent, monitor, and treat. There are 40 million Americans walking around with asbestos time bombs in their lungs and linings. The poisoners and the lawyers who have profited from the lawsuits have a moral and legal duty to put out those fuses before they blow, and to treat the patients if the bombs go off. It’s time they cleaned up their mess.

Hahn’s commentary on the timely holiday payment? “Given OC’s huge asbestos liability, our almost fifty cents on the dollar recovery is excellent, and there remains a small possibility that further payment will be made. We saw an effort on both sides of the often stormy litigation to stop aiming their guns at each other and for a moment point them at the common enemy, the disease itself.”

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