Hoosiers dying of asbestos exposure say law change is needed

INDIANAPOLIS — Before she dies, Dorothy Kuykendall wants her day in court.

The 76-year-old from Terre Haute was exposed to asbestos, a toxin that can lead to a deadly cancer called mesothelioma, more than three decades ago when she handled the material regularly as a worker at the city’s Glas-Col Apparatus Co.

This April, she learned that she is dying of cancer. Even though she hasn’t handled asbestos since 1975, her doctors say that exposure is the cause.

“I didn’t know then that asbestos was dangerous, or that my work would one day cause me to have this awful cancer,” she said.

State statute gives Hoosiers only 10 years to file a lawsuit after contact with harmful materials. Since Indiana doesn’t make an exception for those with latent diseases, she has no recourse.

Kuykendall can’t get workers’ compensation, and she can’t sue. Therefore, Medicare is on the hook for hundreds of thousands of dollars in medical expenses as a result of her disease.

“My family and the taxpayers are paying for the actions of the company that sold asbestos and my former employer,” she said. “It’s just not fair.”

Kuykendall was part of a group of advocates who asked a panel of state lawmakers on Thursday to pass legislation that would allow those who develop diseases caused by asbestos decades after being exposed to sue the companies responsible for the exposure.

Her voice cracked as she told the Commission on the Courts, an out-of-session study committee, of her disappointment that she won’t be able to take care of her husband, who is 89, until he dies. “He’s taking care of me,” she said. “And I wonder what will happen to him when I’m gone.

“I ask that you change the law to give people like us some hope,” she said.

Under current Indiana law, those who are exposed to hazardous materials such as asbestos have up to 10 years to file a lawsuit.

However, asbestos diseases – most prominently, mesothelioma – can take much longer to develop, meaning that by the time the illness is discovered and diagnosed, the chance to take legal action has already passed.

Indiana is the only state that doesn’t have a law on the books allowing for exceptions for latent diseases, according to Russell Sipes, an attorney who testified Thursday and who represents clients who suffer from asbestos-related diseases.

The legislation he called for would maintain the state’s current 10-year window, but would carve out an exception that allows Hoosiers who are beyond that time frame to sue within two years of being diagnosed.

It’s an exception the General Assembly approved in 1989. However, a 2003 state Supreme Court ruling drastically altered the meaning of that law, rendering it essentially useless, Sipes said.

“It’s obvious – people who become ill never have a right to sue,” he said. “They become sick and often they die long after the time the Legislature has set for them to bring a cause of action to try to hold anyone responsible.”

One person who called for the new law was a state lawmaker himself.

Sen. John Waterman, R-Shelburn, told his colleagues that in the 1960s, he worked for a company that removed aging boilers from homes and businesses. He described a white cloud formed by asbestos surrounding him as he took a sledgehammer to the boilers.

“On the way out, the truck was never covered. You’d have a white cloud of dust all the way out to the landfills,” he said. “A lot of friends I’ve worked with have passed since.”

The committee’s chairwoman, Rep. Linda Lawson, D-Hammond, said she expects her panel to recommend that the General Assembly pass a bill allowing for the two-year exemption for latent diseases during the 2010 session.

Tony Payton, a 63-year-old Louisville, Ky. resident, told the committee that he and his family would be bankrupt if he had the misfortune of living just across the Ohio River in Indiana. However, in Kentucky, he went to court and won a settlement.

Payton had surgery to remove cancer caused by asbestos, but this summer was told that the cancer has returned.

He said he was there to testify on behalf of a friend who was a member of the same union in the 1960s and 1970s, but like roughly one-third of that union’s members, lived in southern Indiana.

“I’m still here, still fighting, still alive, and today I’m here to speak for [my friend],” he said. –Eric Bradner, http://www.courierpress.com/