For more than two decades, the asbestos victims of Libby have waited.
During that time, they watched The W.R. Grace Co., longtime owners of the mine that poisoned many workers and their families and spewed so much toxic dust into the air that the entire town of Libby was endangered, declare bankruptcy.
They watched Grace executives win acquittals in a controversial criminal case in which much of the evidence against the company was ruled inadmissible.
They watched the court system wrangle over how to process their claims, waiting while the state of Montana set up a separate “asbestos court” to handle them. They watched the remaining defendants, including Grace’s industrial insurer, Maryland Casualty Company, attack the clinic and the doctor who have been caring for them, in an effort to reduce the number of claimants.
They watched Maryland Casualty try to attach itself to the Grace bankruptcy to avoid legal responsibility for the many workers and family members’ sicknesses and deaths. They watched court after court come to the conclusion that the insurer had a duty to warn the mine workers that they were being exposed to the deadly fibers, only to see more delay.
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They mourned as their fellow victims died of asbestos-related disease with almost metronomic regularity, before the legal wrangling was done. Before justice could be sought, much less won.
And the survivors waited some more.
Now, the waiting is coming to an end.
Friday, in a bellwether case against Maryland Casualty, expected to have a huge impact on more than 800 additional cases stacked up behind it, a Great Falls jury awarded $36.5 million to former mine worker Ralph Hutt, who currently suffers grievously from asbestosis.
The jury awarded Hutt $6.5 million in compensatory damages, for the loss he is currently suffering — that of his health, and any quality of life in his retirement years. He is tethered to life-saving oxygen, so much so that he can barely walk to the bathroom and back to the living-room chair and oxygen tube that define his existence.
And it awarded $30 million in punitive damages.
For those two decades-plus, the fate of most of the Libby victims has been in the hands of attorneys at the McGarvey law firm in Kalispell.
“It’s been a long road,” Allan McGarvey said, pointing out that some of the original plaintiffs were represented by his father, and that attorney Jon Heberling, who worked for a very long time on the matter, is now retired, “and I’m not so young any more myself.”
After the asbestos court was formed in 2017, Judge Amy Eddy consolidated the Libby cases, and decided that some “bellwether cases” could go forward to see if some of the complex legal questions in the litigation could be resolved, or at least guided, by jury verdicts, setting parameters for later cases. The Hutt case was chosen.
By that time, the case had already been argued in bankruptcy court in Delaware. There, the court ruled that injunctions from Grace’s bankruptcy did not apply to Maryland Casualty.
Then, Judge Eddy ruled in a summary judgment motion that MCC’s had a duty to warn the employees that was separate from Grace’s.
With trial set for January 2019, Maryland Casualty went to the Montana Supreme Court, seeking a writ to set aside her finding.
The justices of the Supreme Court unanimously and quite vociferously affirmed Eddy’s finding.
“MCC’s duty, and any resulting liability for breach thereof … arises based solely on MCC’s own knowledge of conditions and circumstances in and about Grace facilities and operations, wholly independent of its … duty to Grace, Grace’s independent common-law duty to its workers, or any act or omission by either in breach thereof,” wrote Justice Dirk Sandefur.
Those “conditions and circumstances” were hugely hazardous. The area in and around the mill where vermiculite ore was crushed was constantly blanketed in dust containing 40 to 80 percent asbestos. The workers were not told this; they were instead told the substance was just a “nuisance dust” that would not harm them.
Back in 1956, the state of Montana had inspected the mine and concluded that “the dust in the air is of considerable toxicity,” but those findings were shared only with mine management and never mentioned to workers.
At the same time, miners were subjected to an X-ray program which allowed the company to measure their exposure to asbestos. Actual symptoms of asbestos-related disease often do not manifest for 30 years or more – a fact that helped Grace, and Maryland Casualty, deal with the exposure issue.
A 37-page “safety plan,” written by the insurer after Grace began to hear from doctors and others about workers’ lung issues, did not include the word “asbestos,” referring only to the “dust problem” at the Grace mine.
Meanwhile, Maryland Casualty’s attorney urged mine bosses to settle with any complaining workers rather than allowing a legal case to move forward in order to avoid “exposing … all of the more damaging aspects of our situation.”
Ralph Vern Hutt went to work at W.R. Grace in 1968. He’d already done a hitch in the Army, working as an artilleryman and a truck driver in Germany. He came from a family of loggers, and for a while he went to work logging near Libby. But then his Dad told him they were hiring at the vermiculite mine.
Like many who worked at the mine, his first job was at the “dry mill,” where they crushed ore containing vermiculite – which also contained a lot of asbestos. His boss “handed us a broom and a snow shovel and put us to work sweeping.”
…”Continuous job, dust, dust, dust,” Hutt testified in a video deposition from his home in Roseburg, Oregon.
He added that his supervisor told him, “You ain’t got to worry about the dust … it’s just like household dust. It won’t hurt you.”
Nobody wore a mask, Hutt said, because the masks got plugged up with dust too quickly.
Hutt only worked at Grace for about a year and a half.
Nearly 30 years later, in the ‘90s, Hutt was logging near Bonners Ferry, Idaho, working high in the mountains, and he began having a hard time breathing at high altitudes.
When he got down from the mountainside, he would feel okay. But as soon as he got back to a higher altitude, he’d be gasping for breath.
Finally, in 2002, he went to get his lungs tested. Doctors found he had thickening and scarring in his lungs, which was attributed to asbestosis.
Since then, it’s just gotten worse. Hutt testified that he would try mowing the grass, and couldn’t. And when he lay down to sleep at night, he’d get up gasping for air.
Now, Hutt depends on oxygen.
“If I go to the bathroom, I can make it back to here (his living room chair),” he testified. “I’ve got to set, put the air on, catch my breath.”
Hutt said it feels like he’s “stuck underneath the water, or strangled.”
Hutt, his breathing labored, said, “You hear people all the time complaining about our government. At least the government told you what you were getting into when you signed up (for the Army). They told me … you’re liable to die … if it has to be, you give your life for your country, and I signed the paper.
“I never signed no paper with anyone else on the outside that said I’d give my life for their company. … the only one I signed that paper for was the United States of America.”
Hutt’s trial suffered more postponements, this time from COVID. After the Montana Supreme Court ruled in March 2020, he got a trial date of February 2021. But because of the pandemic, that date was vacated, and another set for September.
That too, was vacated, and the trial was set for February of 2022.
In September, McGarvey made a key strategic decision. He decided to bring in veteran Billings trial attorney Cliff Edwards to handle the courtroom work.
“It was maybe the biggest challenge of my professional career, to parachute into this case, after all the years Allan (McGarvey) had spent on it,” Edwards says.
There was so little time. Edwards spent much of October through January in Kalispell with McGarvey and his firm, getting up to speed, preparing for all aspects of the trial – jury selection, strategy to present witnesses and cross-examine the defense witnesses.
He and other team members went to Roseburg and took Hutt’s deposition. It made a huge impression on Edwards.
“He and his partner Carol live in a modest trailer home. They’re salt-of-the-earth people.
“I realized when I went out and met him that there was a chance he might not even make it until February for the trial,” Edwards said. “He was having so much trouble breathing, even on the oxygen.”
The jury was incredible, Edwards said. “They were the most engaged, intent and patient group I’ve ever had the privilege of presenting a case to in my near 48 years in Montana courtrooms. I told them in closing argument they epitomized the American/Montana system of justice.”
For McGarvey, just getting in front of a jury was deeply gratifying.
“It’s a wonderful feeling to watch the judicial system work as it’s supposed to,” he said.
In the end, the jury found that Maryland Casualty (now doing business as Zurich American Insurance Co.), breached the duty to warn that courts had established, and after finding for Hutt and awarding the compensatory damages, they asked for financial information to determine punitive damages, coming back with the $30 million figure.
Edwards said he called Hutt, “and that big old logger started crying.”
An email sent to attorneys for Maryland Casualty seeking comment on the verdict and any plans for appeal was not returned Monday.
For McGarvey, the work continues. He must be prepared to take more cases to trial.
Winning the “bellwether” case does not guarantee that MCC will be interested in settling the other cases. But it does give McGarvey a much improved chance of prevailing, and obtaining some measure of vindication for the victims of Libby.
“Ralph Hutt is a hero,” he said. “He held out, and he took them to the mat, and he won.”
For Edwards, getting a chance to represent Hutt and work with McGarvey “was a great honor.” He said the case confirms an important truth: “The wheels of justice may grind slowly, but in the end justice is done.”
Montana State News Bureau reporter Seaborn Larson contributed to this story.