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For families, justice elusive over deadliness of asbestos

As a college kid majoring in engineering, Joe Muir dreamed of working on nuclear submarines. Even as a young man in the summer of 1976, working alongside his father at the Durez Plastics Corp. plant in North Tonawanda, Muir’s sights were always set on something big.

He met his future wife, Nancy, in high school, and together they set out on a life that would take Muir to General Dynamics’ Electric Boat project in Connecticut and a career on the cutting edge of submarine technology.

And then, in 2014, at the age of 56, his career as a project manager flourishing, Joseph L. Muir learned that he had mesothelioma. He died a year later but lived long enough to see a jury in Buffalo attribute his illness to asbestos exposure and his two summers 40 years ago working at Durez.

The jury also awarded him $5.7 million.

His widow, Nancy Muir, is still trying to collect that money. So are two other widows and a sister.

The four women are now going after a collection of insurance companies that they believe negotiated secret “buyback agreements” with Hedman Resources, the company that manufactured the raw asbestos used at Durez.

Their lawsuits in federal court in Buffalo allege that the agreements were designed to fend off future asbestos-related claims by workers such as Joe Muir and were motivated by a desire to escape multimillion-dollar judgments.

“Their hope is you’ll give up,” Nancy Muir said of her two-year legal fight with Hedman and its insurers. “They just carry on and snub their nose at you while you sit back and confront death.”

Joe Muir died in mid-December, and his widow now finds herself joining three others in a legal fight that focuses on an agreement that her lawyers call a “rotten deal.”

“We’ve never come across it in 30 years,” Michael A. Ponterio, a lawyer for the widows, said of the buyback agreements. “These were secret confidential deals. And they don’t pass the smell test.”

Lawyers for the insurance companies declined to comment on the suits or the buyback agreements but acknowledged in court papers that the deals were made.

The insurers, who have filed third-party complaints against Hedman, say the agreements are legal and valid and, in the end, remove them from any liability in the Durez cases.

‘Effort to hinder, delay and avoid’

The agreements, negotiated in 2012, allowed companies such as Lamorak Insurance, Seaton Insurance and One Beacon America Insurance to buy their way out of their liability for asbestos claims against Hedman, the suits contend.

In return, Hedman, nearly insolvent at the time, received $6 million, court papers say.

At the core of the four suits is the allegation that the insurers made the agreements after analyzing hundreds of pending asbestos cases against Hedman and the potential for them to pay tens of millions of dollars in claims.

“The agreements were entered into in an effort to hinder, delay and avoid paying our clients,” said John N. Lipsitz, a lawyer for the widows.

Seaton Insurance, in court papers, rejected the suggestion that its agreement was “secret” but acknowledged that it “extinguished all of Hedman’s purported rights under the Seaton policy.” The company also says Travelers Insurance, Hedman’s primary insurer, is still on the hook at Durez. Ponterio and Lipsitz say Travelers exhausted its coverage five years ago.

Like the other insurers, Seaton says its buyback agreement was the result of a dispute over the insurer’s liability in the Hedman lawsuits. The insurers contend that they never had any liability but nevertheless settled with Hedman in an effort to avoid a protracted legal battle.

“Seaton disputes that it adopted a ‘cut and run’ strategy,” its lawyers said in court papers. “To the contrary, Seaton and Hedman entered into the buyback agreements at issue following hard-fought, arm’s-length negotiations.”

The four lawsuits follow four separate State Supreme Court trials, each one resulting in a verdict and judgment favorable to the families of the workers. In each case, the court found that the men – Joe Muir, Hubert A. Peace, Arthur E. Neilson and Paul J. Mineweaser – became ill because of asbestos exposure at Durez. The courts also awarded them judgments totaling $13 million, much of it for medical expenses and lost income.

“It’s just terrible what happened to the people who worked at Durez,” Lipsitz said.

Ponterio and Lipsitz have represented Durez workers for 30 years, even before the plant shut down in 1995. Located on a 66-acre site in North Tonawanda, the company employed 1,000 people at one point and used raw asbestos in the manufacture of plastic molding compound.

Hedman, which supplied the raw asbestos to Durez, ended its mining operations years ago and, at the time that it closed, was largely insolvent.

Unlike most of the Durez workers who became ill, Joe Muir was there for just two summers – 1976 and 1977. He was working his way through college, on his way to a degree in engineering and headed for a career at General Dynamics.

Over the years, he rose through the ranks. By the time he was 55, he was a project manager on the Electric Boat submarine project supervising hundreds of employees.

And then came the sudden decline in his health and a diagnosis of mesothelioma two years ago. “It’s tough to see a man at the top of his life, at the top of his career, go downhill,” Nancy Muir said. “He was never sick a day in his life. He didn’t want to die.”

‘I push forward for him,’ widow says

Joe Muir died late last year but was still alive when the $5.7 million judgment came down from the courts. Even then, his wife said, he felt that it was important to hold Hedman and the other companies accountable for what happened at Durez. He also wanted to ensure that his grandchildren, whom he wanted to put through college, would have the means to do so after he was gone.

“I push forward for him,” Nancy Muir said.

The Muirs’ fight is now in federal court, where U.S. Magistrate Judge H. Kenneth Schroeder Jr. is being asked to decide whether the insurance companies behind Hedman are still liable for asbestos claims.

Nancy Muir thinks they should be and can’t understand why the state court judgment that she and her husband fought for and won is, at least for now, moot.

“I don’t know how a judge can make a decision and not have it carried out,” she said.

The lawyers who represent her and the other families wonder, as well, and say they have no intention of folding their cards now.

“We’re in it for the long haul,” said James J. Duggan, a lawyer for the families.

Ponterio, a veteran of the legal wars involving asbestos, is optimistic that what he believes to be the truth will in the end win out.

“We think facts are a stubborn thing,” he said. “We like to think, at the end of the day, we will see justice.”

email: pfairbanks@buffnews.com