Branstetters' $125,000 Settlement
Feels Like Short End of the Stick

"Nobody in the family is happy. We all basically feel like we've been cheated," said Branstetter. "I tried to tell (my attorney), 'I need for a jury to make that decision. If they decide to give me $125,000, so be it. If they decide to give me nothing, so be it. I just need a jury to make that decision.'"

Branstetter says her attorney, who will take 43 percent off the top and another $25,000 or so in expenses, coerced her into settling. Her attorney says $125,000 was a very good settlement for this case because there were no doctors willing to say the family's health problems were caused by the fiberglass insulation which contaminated their house. Furthermore, the question of who was responsible for the fugitive fiberglass-the HVAC company or the insulation contractor-was unclear.

"Nobody forced these people to settle," the attorney said. "We just painted a picture to them the way it was, they made a decision based on our advice. I thought it was a great settlement, and so did my partner. Based on what we knew, and based on the medical evidence we had."

Meanwhile, the Branstetters are still living with a contaminated house, contaminated clothing, bedding and carpets, and continuing medical bills. Young Kimberly Branstetter requires a steady supply of asthmatic inhalers, costing approximately $100 a month.

The lawyer often mentioned to the Branstetters his mounting expenses, and his fears about recouping them. He continually advised his clients to settle; his overtures becoming more urgent as the trial date approached.

Branstetter grappled with her desire to retain a more aggressive attorney. Other firms were reluctant to intercede. The attorney says other attorneys "wanted no part" of the case.

On Monday, Dec. 9--one day before the trial was to begin--the attorney asked the Branstetters to settle out of court for $100,000. They refused. Tuesday morning, before jury selection, he told Cheryl Branstetter a "final offer" of $110,000 had been made, and that they "really needed to get this thing settled." Again, Branstetter refused. The trial began. From the family's perspective, things were going reasonably well, but the attorney didn't seem to think so.

On Wednesday, their lawyer was even more tense, Cheryl recalls. "We need to settle this. We need to get out of it. You're going to lose everything. It's not going good," were typical of his comments during court recesses, she said.

"No, everything was not 100 percent perfect," Branstetter noted, "but I'd say it was 85 percent in our favor. We showed that the system had been installed improperly and there was fiberglass in the ductwork. I had a very good feeling about it."

They attorney, who demanded his name be removed from this story, and threatened to sue FIN, told FIN the "overwhelming evidence" favored the defense. Moreover, he said, the medical part of the case -- the weakest part of their case -- had not begun. The liability portion of the case, which should have been their strong point, had not gone well, he said.

When court broke for lunch on Wednesday, he told Cheryl to get husband Kevin down to the courthouse. He seemed angry, she said. She called Kevin, and went to pick up Kimberly. When mother and daughter arrived, the attorney was talking with the defense attorneys.

The court had been fumigated with some sort of pesticide or cleaner during lunch. As they were standing outside the courtroom, Kimberly hyperventilated and passed out, typical of her behavior since the fiberglass contamination of their home. A bailiff helped Kimberly outside. While Cheryl went to the truck to get Kimberly's inhaler, the attorney actually urged the teen-ager to convince her mother to settle.

They went to a private office, where things disintegrated rapidly. The lawyer said if the Branstetters would not settle, they would have to sign an affidavit stating that by continuing the case, they disregarded their counsel's advice. The affidavit had already been typed.

According to the attorney, the affidavit protects him in the event the Branstetters were to lose, and then blame him for not advising them to settle. The attorney said he only uses these "in cases where it's apparent we're not going to do well."

Kevin Branstetter and his attorney had never seen eye to eye. Branstetter accused him of "quitting." The lawyer said the family would probably get nothing from the jury. Cheryl reluctantly agreed to settle.

After the settlement, the attorney told the Branstetters he had been informed that five of the six jury members had told the defense counsel they would have voted to give the Branstetters nothing. Branstetter says that cannot be true.

That Friday, she said, two jurors -- one a professional golfer and the other a county school executiv -- contacted her to inform Cheryl of their surprise when the family settled.

"Both said they didn't understand what happened or why we did this," she recounted. "One said 'If you settled for anything under a million dollars, you're crazy.'"

The lesson to be learned, according to Cheryl Branstetter, is "Find and attorney that's willing to stand behind you. Five years into the case, it's hard to pop up and say 'I'm firing you and hiring another attorney' at the last moment."

"I was trying to help these people and get them the most money possible," said the lawyer, who took the case on contingency and tied up thousands of dollars of his own money for years bringing the case to trial.

The family would like to get out of the house, but that is not financially feasible in the foreseeable future. Plus, Cheryl has misgivings about passing on her contaminated residence to an unsuspecting family. So now, the Branstetters slowly, systematically box up their stuff, only to clean it and then put it back into use.

"How do you figure I won? asked Branstetter. "Even if (Kimberly) doesn't get any worse, she still has to take her breathers four times a day, and we're still stuck in the house."