Racial basis for asbestos lawsuits?; Owens Corning seeks more stringent standards for blacks

THE BALTIMORE SUN

Owens Corning, long a target of lawsuits over charges that the asbestos in its products sickened thousands of workers, will ask a judge today to make it harder for African-Americans in Baltimore to take the company to court.

Citing medical evidence that blacks have different lung capacity than whites, lawyers for the insulation manufacturer want to require blacks to show they have worse scores on lung tests than whites as a result of asbestos exposure before they qualify for a trial.

Specifically, the company has named a dozen Baltimore area African-Americans to be barred from pursuing their lawsuit. Had the men been white, they would have had no difficulty having their cases heard, given their tests results.

Physicians have argued on both sides of the issue: The American Medical Association supports race considerations in determining lung function, but pulmonary doctors at renowned hospitals, asbestos experts and medical anthropologists denounce such considerations.

The mere suggestion has outraged many black leaders, doctors and asbestos experts, who say it smacks of racism.

This afternoon's hearing raises perplexing questions about the intersection of science and race -- not the least of which is the sticky definition of race. And then there are the plaintiffs, who fear being doubly betrayed -- by the companies that exposed them to asbestos and by a legal system that could deny them compensation under what they say is a constitutional violation.

"I would say that this is a low point in the system, that you're going to make a rule based on race, of an African-American's lungs not being equal to a white person's lungs," said Anthony S. Bradford, a Bethlehem Steel worker who is named in the company's motion.

"But it doesn't surprise me. When you have a racist viewpoint I guess you can get a doctor to say anything."

For decades, shipyard workers and others have slowly wound their way through the legal system pursuing claims that they suffer from shortness of breath and lung cancer from exposure to dangerous asbestos fibers.

More than 12,000 asbestos cases are pending in Baltimore alone. To handle such massive filings, Circuit Judge Joseph H.H. Kaplan set up guidelines in 1992 to decide who would be deemed sick enough to get a trial and who would not -- "active" and "inactive" dockets, as they were labeled.

On Page 4 of the guidelines was a short sentence about lung test values that has sparked the current controversy: "Predicted values shall be corrected for race or ethnic origin as appropriate."

It went largely unnoticed until a few months ago, when Owens Corning, a Toledo, Ohio-based company that manufactures fiberglass, brought it up.

The sentence relies on disputed medical opinion that blacks consistently score lower -- between 12 percent and 15 percent -- on so-called pulmonary function tests (PFT). The tests measure how closely to the predicted norm a patient's lungs function; 100 percent would indicate perfect lung health and 80 percent is deemed impaired enough by asbestos to go to trial.

But, for the purposes of the Baltimore cases, "the norm" Kaplan is considering is based on large clinical studies done on whites in the early 1980s in Utah.

"These reference values apply primarily to the population from which they were drawn. Thus, they are most representative of a group of healthy Caucasian North Americans of European ancestry. They may not apply to other groups," reads the report issued by physicians in Salt Lake City.

Even so, Owens Corning wants to adjust blacks' lung test scores in what is called a PFT race correction. Latinos, Asians and Native Americans are not subject to such corrections.

"We don't think it's good science," said Peter T. Nicholl, a Baltimore attorney for the plaintiffs. "How can you use different standards for African-Americans as opposed to Caucasians to deny them access to the courts? That's the key: access to courts."

Nicholl insists this issue was long ago decided by the Supreme Court and the 14th Amendment, which guarantees equal protection for all races.

Nicholl's office represents thousands of clients with asbestosis and other lung diseases caused by inhaling asbestos. Most of his clients are African-American, and hundreds could lose access to compensation if Kaplan allows race correction to be used, Nicholl said.

But the American Medical Association supports the findings of the American Thoracic Society, the medical arm of the American Lung Association that is considered an authority on lung health. The ATS' position on lung function testing is that race correction is scientifically sound.

"Race has been consistently shown to be an important determinant of lung function," read ATS guidelines published in 1991. African-Americans score lower on lung tests, and people of mixed-race "usually have intermediate values," according to the guidelines.

"The reason for the difference is unclear," it says.

But medical data do not always translate into law, according to Dr. Norman H. Edelman, an American Lung Association consultant. " 'Normal' is hard to determine," he said. Asked whether data on race correction should be used in the courts, he said, "You're not going to get an opinion from me on that. That's a philosophical issue that has been raging for years."

Dr. Paul Epstein, a pulmonary specialist with the University of Pennsylvania, said in a deposition for this case this month that "virtually all of the medical literature beginning in the 1970s forward has shown that the normal population of Caucasian and Black individuals have slightly different pulmonary function test normal values."

Owens Corning agrees.

"We have and we will continue to compensate the people who have injuries that are a direct result of exposure to our product," said Tricia Ingraham, spokeswoman for Owens Corning. "In response to the statements of Mr. Nicholl, we believe that has no basis in law or general medical criteria. We have no comment on the specific issue of race being considered."

Lung function is not the only area in which race is a factor in medicine. Doctors increasingly have tried to explain, for example, why blacks seem to respond less readily to medication for high blood pressure. Conditions from lupus to stroke are being studied, with some saying blacks may need medicine dosages different from what whites need. And there have long been comparisons between blacks' and whites' intelligence.

While most physicians support more research into the health of minorities, many doctors and asbestos experts say race corrections hark back to days of segregation, Jim Crow and racist treatment of blacks by scientists.

"I've been working on the asbestos issue for 25 years, and this is not something I've encountered," said Barry Castleman, a Baltimore environmental consultant. "This reminds me of [racist medical discussions] I heard when I was in South Africa. They were saying that blacks have more TB [tuberculosis] and have different lungs than whites. I wouldn't expect that there would be that kind of racial disparity in the United States though."

Some physicians also call the use of a race correction sloppy science.

"Race correction is not espoused by the pulmonary community as a proper assessment of lung function," said Dr. Lewis J. Rubin, director of pulmonary medicine at University of California, San Diego school of medicine and formerly of the University of Maryland. "It is not my practice to perform that in our laboratories. Lung function is not clearly a race-related issue."

Rubin adds that using race alone to determine illness is irresponsible because other factors such as weight, height and age also are key factors.

In addition, some experts say a race correction is controversial because racial constructs such as "black" and "white" cannot be conclusively defined.

"I've heard these trumped-up things before on medical issues and African-Americans -- it happens a lot with blood pressure, and it's ridiculous," said Robert W. Sussman, a professor of anthropology at Washington University in St. Louis. Sussman was the editor of the American Anthropological Association's journal on race published in September.

"There are no pure races -- there has been so much mixture since slavery," he said. "I mean, what is 'black'? Do we still go back to the one-drop [of blood makes you black] rule? It's just a western European mental concept. It's just a mind-set, and it has nothing to do with reality."

G.I. Johnson, president of the Baltimore branch of the National Association for the Advancement of Colored People and a 43-year employee at Bethlehem Steel, is on the inactive docket for asbestos claims. But, as with most who have asbestosis, his condition worsens every year -- and he expects to qualify for a trial at some point.

He is outraged that blacks' chances to be compensated could be curtailed by race.

"A lot of my comrades have died from this disease," he said. "I've been to many funerals. It destroys the fabric of the family, and it's something you just don't take lightly."

Pub Date: 3/25/99

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