CHARLESTON – A lifelong nonsmoker nurse who was diagnosed with lung cancer after working in various hospitals and medical facilities during her career says Fairmont State University and others have pulled a bait-and-switch in her asbestos case against them.
Donna R. Spurling, 63, has filed a motion for leave to file a second amended complaint in her case against a host of defendants. The first amended complaints listed the defendants as Metropolitan Life Insurance Company, Monongalia County General Hospital, United Hospital Center, West Virginia University Hospitals doing business as Fairmont Medical Center, West Virginia United Health System dba WVU Health System and the Fairmont State University Board of Governors.
In the second amended complaint, Spurling adds the West Viriginia Board of Risk and Insurance Management as a defendant.
Robb
| File photo
“Knowledge creates power and an opportunity – to do right, or wrong,” Michael Robb, lead counsel for Spurling, told The West Virginia Record. “The defendants in this case – especially FSU and Mon General – have known about the health hazards of asbestos for decades, allowed it to remain in their buildings, and chosen not to disclose it. This is wrong, and the consequences are deadly.
“FSU could not care less if they expose their students to asbestos. How else can you explain why they don’t warn anyone about it and allow it to remain inside their school buildings? When we gave FSU an opportunity to come to the table and make things right for Donna what did they do? They took that opportunity to effectively spit in her face.
“Justice dies in darkness, and we will do everything in our power to be the light that exposes this deadly 40-plus-year coverup and continue our fight for Donna.”
According to the plaintiff’s motion to file, FSU BOG counsel Jeffery Lilly reached out to Spurling’s attorneys after the first amended complaint was filed in February. On July 11, Lilly offered Spurling $600,000 to resolve her claims against the FSU BOG, according to the latest filing. Spurling’s legal team countered at $700,000, and FSU then offered $650,000. On July 19, Spurling’s attorneys offered to resolve at $675,000.
On July 23, the FSU BOG withdrew its offers to resolve the claim and asked Spurling to provide information regarding her claim, including the date of her lung cancer diagnosis, the amount of her medical expenses, the amount of her future medical expenses and her life expectancy.
The next day, Spurling’s attorneys provided the documentation. The following day, they requested a deposition of David Goldberg, who is a member of the FSU BOG and acting CEO of Mon General Hospital.
On July 26, Lilly told Spurling’s legal team he had been fired by the FSU BOG, which then retained Steptoe & Johnson to represent it.
In its motion to dismiss, the FSU BOG says Spurling did not specifically allege insurance coverage and because an AIG letter dated January 26, 2024, showed FSU did not have insurance coverage.
“At no point during the parties’ months of negotiations did FSU BOG contend that it was protected by sovereign immunity,” the plaintiff’s latest motion states. “Now, faced with a dramatic about-face from FSU BOG, plaintiff asks this court for leave to amend so that she may allege facts and claims showing that FSU BOG’s sovereign immunity defense is meritless.”
In the arguments to allow the second amended complaint, Spurling’s attorneys say the FSU BOG negotiated for months as if it had insurance coverage and sovereign immunity did not apply.
“Now, based solely on a denial of coverage letter that defendant had prior to negotiations, FSUBOG asks this court to dismiss the case,” the motion states. “Plaintiff’s amendment alleges what she believed all along, FSUBOG has applicable coverage and it is not immune to litigation stemming from its deliberate choice to expose its students to asbestos.
“FSUBOG apparently believed it as well – it offered to pay Ms. Spurling $650,000.00 for its role in causing her to develop lung cancer before reneging on months of negotiations. Further adding BRIM as a defendant will additionally allow the court to reach the merits of this action, both on the issue of insurance and the new claims discussed below.”
Spurling’s attorneys hope to proceed with discovery on the insurance coverage issue. Still, they say the second amended complaint also adds several new claims alleging the FSU BOG and BRIM violated federal law not shielded by sovereign immunity.
“Spurling has incurable lung cancer that will ultimately cause her death,” the motion states. “This case is unique and alarming. Ms. Spurling was exposed to asbestos-containing materials during her education and training as a nursing student in college buildings and hospitals – places the general public assumes are safe from deadly airborne toxins like asbestos fibers. Unfortunately, this is not correct.”
The motion says the evidence in this case shows Spurling was exposed to asbestos-containing materials at FSU beginning in 1998 and continuing through the fall of 2004. Her exposure began 14 years after a survey confirmed several buildings on campus contained asbestos, and 12 years after the state filed a lawsuit on the university’s behalf to recover money remove asbestos. That lawsuit resulted in about $20 million being recovered in 1996 to remove the asbestos from various state buildings including several at FSU.
“Sadly, Fairmont State University deliberately and recklessly chose to allow the asbestos-contaminated products to remain in its buildings, knowingly exposed plaintiff to the same, and now seeks to avoid liability,” the motion states. “The law is clear, ‘state actors may not disclaim liability when they themselves throw others to the lions.’”
The motion says evidence also will show BRIM, which is “tasked with securing insurance coverage for West Virginia’s universities,” was “fully aware of the magnitude of asbestos-containing materials in West Virginia’s public buildings in 1987,” which was 11 years before Spurling began studying at FSU.
“Armed not only with encyclopedic knowledge of the health risks for current and future students and faculty at our beloved public universities but also with $20,000,000.00 in abatement funds, the board did the unthinkable,” the motion states. “It knowingly and intentionally turned a blind eye and opted not to purchase insurance, leaving West Virginia’s students like Ms. Spurling to slowly die without assistance.”
The motion says evidence also will show the defendants hospitals, for decades, “have knowingly exposed nurses, students, patients, visitors and even lung cancer patients, to buildings and rooms that comprise deadly asbestos-containing materials.”
While researching the sovereign immunity claim, Spurling’s attorneys say they discovered that employees of state entities are protected by the state’s insurance policies.
“The fact that the State of West Virginia protects certain citizens, specifically state employees, from the asbestos it exposed them to while denying that protection to others (such as students) violates the Equal Protection Clause,” the motion states. “Since 1984, the State of West Virginia knew that a vast majority of state buildings were contaminated with friable asbestos-containing products. Indeed, 330 of 400 state buildings surveyed in 1984 were contaminated with asbestos, including many at Fairmont State.”
The survey resulted in the 1986 lawsuit that netted $20 million to abate asbestos in state buildings.
“Despite this, FSUBOG affirmatively chose to retain the asbestos-containing products in its campus buildings,” the motion states. “What’s worse – it continued deliberately exposing its students and employees to that asbestos and, if FSUBOG is to be believe, FSUBOG and BRIM deliberately failed to procure insurance coverage for its asbestos-tainted buildings.”
Spurling also says the FSU BOG and BRIM have violated Title II of the Americans with Disability Act for discriminating against students who develop cancer as a result of their exposure in campus buildings.
Spurling’s attorneys also say the FSU BOG and BRIM are not prejudiced by filing a second amended complaint.
“For months, it acted as though it was not protected by sovereign immunity,” the motion states. “Now, after its bait-and-switch, plaintiff should be given leave to amend facts showing that sovereign immunity does not apply.
“That is especially true because the parties have conducted no discovery, there is no trial date, and there are no looming deadlines.”
According to the complaint, Spurling is a lifelong non-smoker who was diagnosed with lung cancer in February 2022. She was a nursing student at Fairmont State from 1998 to 2004. During her years as a student, she was sent to various hospitals and medical facilities as part of the school’s nursing education program.
She says she was exposed to building materials containing asbestos on a regular basis at Mon General, Chestnut Ridge Center, Fairmont Medical Center and United Health Center.
“Plaintiff was exposed to and did inhale dust and asbestos fibers … resulting in plaintiff’s impairment,” the complaint states. “The plaintiff’s lung cancer was diagnosed in February 2022. Plaintiff was unaware of and could not discover the nature and cause of her lung cancer before February 2022. ...
"Defendants had actual knowledge of the dangers to Donna R. Spurling of asbestos exposure, nevertheless, defendants deliberately, intentionally and purposefully withheld such information from Donna R. Spurling thus denying her of the knowledge with which to take necessary safety precautions such as periodic x-rays and medical examinations and avoiding further dust exposure."
The complaint details the history of asbestosis, saying the danger of asbestos dust to result in the potentially fatal lung disease was recognized in medical and scientific circles by the early 1930s. In the 1940s, the cancer risk from breathing asbestos dust was receiving increasing attention, and most of those medical writings were concluding that there was an excessive rate of lung cancer among asbestosis victims seen at autopsy.
It goes on to say the suspicion that asbestos could cause cancer of the lung was considered a probable relationship by 1942 and was generally accepted by 1949, with epidemiological studies in the mid-1950s leaving little room for doubt. The index of suspicion relating asbestos exposure to the rare tumors called mesotheliomas was high by 1953. And by 1960, the full extent of the relationship was being revealed.
“This medical literature was widely known, commented on, easily accessible and available to the defendants in this case,” the complaint alleges. “This medical information was in such quantity and of such a nature as to constitute clear knowledge that asbestos was a hazardous product to those exposed to it.”
Spurling accuses the defendants of negligence, intentional tort, misrepresentation and negligence of premises owners. The complaint also includes details about how Metropolitan Life worked to hide the dangers of asbestos from as far back as the 1930s.
She seeks joint and several compensatory damages, punitive damages, court costs, attorney fees, pre- and post-judgment interests and other relief.
Spurling is being represented by Robb and Travis A. Prince of Bailey & Glasser. The case has been assigned to the state Asbestos Personal Injury Litigation Mass Litigation Panel assigned to Circuit Judge Ronald E. Wilson.
Kanawha Circuit Court case number 03-C-9600 (Kanawha 24-C-26)
