Dust and grit coated nearly everything in Jeanne Morgan’s office on the fifth floor of the Jackson County Courthouse in Kansas City.
It blew out of the air vents after workmen sawed through old heating pipes insulated with asbestos, court records said. The men tracked the dust through the building as they hauled the pieces of pipe down the freight elevator and out to a dumpster in the parking lot.
They took no precautions, witnesses would later testify. No masks, no gloves, no warning signs.
“The particles would be ... all over the papers,” Morgan testified at a hearing last year. “The dust from their boots and their work shoes was on the stairway and in the hallways.”
One of Morgan’s friends and co-workers, Nancy Lopez, died in 2010 at age 56 from the complications of inhaling the asbestos fibers that she contended were in the dust that swirled around the courthouse during that renovation project in 1983 and 1984.
Her heirs won a $10.4 million settlement from the county and the firm that did the work, Kansas City-based U.S. Engineering Co.
But should Morgan and others who breathed courthouse air back then and in the decades since be entitled to a big damage award, too, even if they show no symptoms of disease?
That’s Kansas City lawyer Lou Accurso’s contention. He filed the class-action lawsuit that claims Morgan, another former courthouse worker named David Elsea and potentially thousands of other people should be entitled to free medical testing for the rest of their lives.
The Missouri Court of Appeals reinstated the case this month after a lower court denied it class-action status at the insistence of the county and U.S. Engineering. Both say there’s no proof the courthouse air was tainted with toxic levels of asbestos.
The suit seeks more than $40 million for a medical monitoring fund to benefit courthouse workers, jurors or anyone else compelled to spend much time in the courthouse over the past 30 years.
The Missouri Supreme Court several years ago opened the way for such lawsuits, but since that ruling no case of this size has gotten this far.
That 2007 ruling allows groups of people exposed to toxic substances to be compensated for chest X-rays and other tests for decades, even if they show no sign of illness. The idea was that it would be more costly and potentially deadly to wait until a disease like the one that killed Lopez, mesothelioma, presents itself.
In most personal injury cases, the person filing suit must first prove he or she has suffered some injury or loss.
The class-action lawsuit Accurso filed also seeks unspecified punitive damages that could boost the final total millions more, if the plaintiffs win.
Regardless of how it turns out, legal experts say, this case could end up setting a precedent in Missouri.
A settlement or judgment in the plaintiff’s favor would open the way for more medical-monitoring cases in a state known for its liberal standard for allowing such lawsuits.
“The only state that has medical monitoring as broad as Missouri is West Virginia,” said attorney Victor Schwartz, an expert on tort law who works in the Washington, D.C., office of Kansas City-based Shook Hardy & Bacon, which has no direct interest in this case.
Local attorneys representing the county and U.S. Engineering hope to derail the courthouse class action before it gets to trial.
Jim Griffin, the lead attorney representing U.S. Engineering, said his client is “evaluating all options for further appeal” of the appellate court ruling.
Dennis Dobbels, who represents Jackson County, promises an appeal to the Missouri Supreme Court.
Such a challenge could be iffy, legal experts say, given the high court’s reputation for siding with the rights of plaintiffs over those of corporate defendants. For that reason, the American Tort Reform Association lists the Missouri Supreme Court No. 6 on its list of seven “Judicial Hellholes” in the nation.
Accurso happens to have a personal interest in the case, he says. Back in 1983, when the dust was flying at the courthouse, he was working in the county prosecutor’s office and remembers being on the freight elevator with the workers ferrying those dusty pipes.
“There’s a whole lot of people, including me,” he said, “who were down there and got the same exposure.”
While the case centers on whether the facts add up to the requirements for a class-action lawsuit, the court record leaves few doubts about the origin of the dust at the courthouse.
In 1954, Kansas City-based U.S. Engineering installed asbestos insulation on valves, fittings, water piping and other parts of the heating, ventilation and air-conditioning system throughout the then-20-year-old Jackson County Courthouse.
At the time, asbestos was the standard.
Some 30 years later, the same firm was awarded a nearly $2 million contract to cut, remove and replace many of those same pipes it installed in the ’50s.
But by then, asbestos was reclassified. Not only was it no longer used for insulation, it was also a known killer. When released into the air, asbestos fibers never break down and can hang around for decades.
When inhaled, the fibers burrow deep into human lungs, creating scar tissue and causing tumors to grow. It can take decades for symptoms to show themselves, after which the survival rate is low.
Lopez was diagnosed with mesothelioma in 2009 and died the following year.
According to court testimony by one of its former top executives, U.S. Engineering did nothing to keep asbestos fibers from entering the airstream as workers wrenched or cut sections of the pipe covered in asbestos during the 1983 courthouse project.
Dan Oxler, a former U.S. Engineering vice president, said that when he bid the job he didn’t know his firm had installed the asbestos, and no one at the county said anything about there being asbestos in the building.
“We believed there was no asbestos at the time,” Oxler said in a sworn deposition.
But Oxler acknowledged that buildings of that age normally have asbestos in them, and that it was his company’s duty to check for asbestos but it did no testing.
Nor was the county ignorant of the material’s presence throughout the building — the federal Environmental Protection Agency noted it in a letter sent to a county official three years before the 1980s retrofit project.
The county’s lead engineer at the time, Thor Danielson, testified that he pestered his boss and U.S. Engineering’s job foreman repeatedly about the need to safely remove asbestos before proceeding with the project.
But his warning went unheeded, and a supervisor told him not to come to weekly project meetings because he asked too many questions, he said.
“It wasn’t being handled properly,” he testified at a hearing in February 2014, “and it was being spread through the building.”
When he asked his boss, Thomas F. Lillis, the director of county buildings and general services, whether he should turn off the air handling units during the demolition work so the dust wasn’t blown into offices, his request was denied, Danielson said.
Lillis provided no sworn testimony and was initially a defendant in the Lopez case. But in a phone conversation last week, Lillis, now retired and in his 80s, said he had no memory of Danielson’s warnings.
“I wasn’t even working there at the time,” he said.
Oxler said the job foreman who ran those weekly meetings is dead.
Air now “safe”
Neither Jackson County nor U.S. Engineering acknowledge that asbestos was released during the retrofit project all those years ago. And no test of the courthouse air was done until much later.
The county also disputes the class-action lawsuit’s claim that dangerous levels of asbestos remain in the courthouse air today.
“The courthouse has been tested two times with general air sampling since the initial allegations arose,” Dobbels, an attorney at the Polsinelli law firm, wrote Thursday in an email. “Both sets of testing demonstrated that the air quality in the courthouse was safe.”
Griffin, the attorney for U.S. Engineering, had no comment on the presence of asbestos in the building or other details.
Accurso disputes the accuracy of one of those tests, saying it should have been done on a workday when the air handling units were on and people were kicking up the dust as they moved about. Instead, it was done on a Saturday, when the building was empty and the air units were off.
Today’s air quality, however, is not the main thrust of the case. At its center is the claim that thousands of people were exposed to unsafe asbestos levels previously and are, according to the plaintiffs, deserving of compensation for medical monitoring.
Last year, a circuit court judge ruled that the case did not meet the definition of a class-action lawsuit. There were not enough common factors among members of the proposed class — people who worked in or were compelled to visit the courthouse, such as jurors, for two continuous weeks or more since the 1983 project began.
People close to the work being done in 1983, such as Lopez, would have suffered greater exposure to asbestos near where the work was being done at the time it was done, the court ruled, versus someone visiting the courthouse years later.
A number of asbestos-removal projects were done safely at the building during the 1990s and 2000s.
That lack of “commonality” was one reason Circuit Court Judge Jack Peace said the case failed the test for class-action lawsuits. People who get sick because of alleged asbestos exposure at the courthouse would be free to sue individually, but not as a group.
This month, a three-judge panel of the Missouri Court of Appeals said Peace had it wrong. The whole point of a medical-monitoring case, the ruling said, is to provide compensation before people get sick so they can get treatment.
As attorneys for the county and U.S. Engineering planned their next moves, Accurso chatted with a visitor in his office near the Country Club Plaza.
While discussing his options, an assistant entered the room with a thick stack of depositions and court transcripts in a brown accordion folder that form the foundation of the lawsuit.
The time for legal maneuvering is past, he feels.
“This case is ready for trial,” he said.