Mesothelioma & Asbestos News Round-Up: February 2010

For many patients, the battle against mesothelioma and other diseases caused by asbestos exposure takes place not only in the hospital room, but also in the courtroom. Doctors and medical professionals do all they can for their patients, but we’re left with questions: Why do patients have to suffer from this preventable disease? What justice can we find for them when their health has been sacrificed due to the negligence and greed of others?

In the past month, we’ve seen several stories in the news that highlight the importance of our mission to continue to take this battle to the courts and to the halls of government—and in some cases expose the great lengths corporations will go to avoid being held responsible for their actions. Hopefully, these stories and ones like them will expose these injustices and raise awareness of the place of legislation and access to the courts in the battle against mesothelioma.

Virginia votes to protect one company against asbestos litigation

The first story we encountered comes from the Virginia legislature. In a move they’re calling “tort reform,” the Virginia House of Delegates has passed a bill that protects a single company, Crown Cork & Seal, from asbestos litigation. While the bill, which was introduced by Republican delegate Terry Kilgore, doesn’t name the company, it can only apply to the Philadelphia-based firm. 

While Crown Cork & Seal has never manufactured products containing asbestos, in 1963, it purchased Mundet, a producer of asbestos insulation. Since that purchase, the parent company has been named in more than 300,000 asbestos cases and paid out $600 million in expenses.

Kilgore calls the new measure to protect Crown Cork from asbestos litigation a “jobs bill,” which he says will protect the 300 workers employed at the company’s plants in Virginia. But the bill didn’t pass on the “jobs” argument alone. According to The Washington Post, in 2008, Crown Cork paid $25,095 for four lobbyists to help get the bill passed, and last year, it raised that price tag to $84,167 for seven lobbyists. The Virginia Public Access Project reports that the company has donated more than $100,000 to Virginia legislators since 2007. 

And businesses such as Crown Cork have plenty of help ensuring that legislation goes their way. Crown Cork is a member of the American Legislative Exchange Council (ALEC), a pro-business, free-market group that ghostwrites bills that support the interests of its members. The leading legislators behind this latest bill are also members of ALEC. Since 2006, the organization has been promoting this kind of asbestos legislation, which has been passed in 11 states.

So we’re left to wonder: What can we do to ensure that mesothelioma patients get a fair shake in the courts when businesses can fund the passage of laws that serve their own interests at the cost of those they harm?

Florida courts consider retroactive application of asbestos ruling

The legal outcome may be a bit more hopeful in Florida, where the state’s Supreme Court has stepped in to consider a dispute over how to apply the 2005 Florida Asbestos and Silica Compensation Fairness Act. The law sets a standard for the evidence of physical impairment caused by asbestos exposure that must be proven when bringing a lawsuit.

Controversy arose when Palm Beach Circuit Judge Elizabeth Maass dismissed 13 cases for failing to meet the standard, even though those cases had been filed prior to the passing of the act. As Miami appellate attorney Joel Perwin argues, “You had a whole group of people who had claims that were viable under preexisting law, and the statute was specifically applied retroactively to abolish those claims.”

The case has also focused attention on the original statute, which sets a very restrictive set of criteria for those who wish to seek redress for the dangers they’ve been exposed to. Perwin has raised this issue himself, calling the statute “draconian.” As he notes, some clients with fatigue and shortness of breath may not even meet the standard for litigation.

We’ll keep an eye on this controversy, and hope that the Florida courts don’t decide to retroactively deny these patients the right to pursue their cases. When big industries have the ability to keep patients’ cases from being heard, we need to work harder than ever to give ensure that everyone who has suffered from exposure to asbestos has the opportunity to receive the justice they deserve.

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Mesothelioma & Asbestos Round-Up

Mesothelioma & Asbestos Round-Up: January 15, 2010

In the past few weeks, two major stories concerning asbestos exposure have appeared in the news. While it’s encouraging to see an international spotlight being put on this serious issue, both stories underscore troubling themes in the response to asbestos exposure.

In each of these cases, the focus is on the aftermath of asbestos exposure rather than on prevention. Each is marked by bitter wranglings and arguments about responsibility, liability, and compensation. And while in each case, there have been some positive outcomes, they also serve to illustrate how political and commercial self-interest can sometimes get in the way of justice.

The Ongoing Effort to Clean Up Libby, Montana

Let’s start in the U.S. In the past, we’ve reported on the heartbreaking case of Libby, Montana, where asbestos contamination sickened and killed miners and their families. More than 30 years after the company became aware of the danger – and continued to expose local residents – the mining firm W.R. Grace was finally brought to trial on criminal charges.

In May, 2009, victims and their families were dealt yet another blow as W.R. Grace and three of its former executives were acquitted of all charges. The New York Times reported that during the trial, Judge Donald W. Molloy excluded some compelling evidence offered by prosecution as “prejudicial,” including company memos in which executives discussed the costs of people dying in Libby. Swift on the heels of this decision, the EPA declared a public health emergency in Libby, and the Department of Health and Human Services earmarked $6 million to finance treatment at the nearby Lincoln County Health Clinic.

Libby again appeared in the headlines in December during debates about the recently passed health care bill. Several news outlets noted that, while not specifically named, Libby would receive benefits “buried” in the proposed bill as a proposal to expand Medicare coverage to cover certain victims of “environmental health hazards.”

Montana senator Max Baucus has defended the proposal, noting that it’s a necessary and responsible part of this country’s health care plan, which should protect future victims as well as those in Libby. “The people of Libby were poisoned and have been dying for more than a decade,” he said. “New residents continue to get sick all the time. Public health tragedies like this could happen in any town in America. We need this type of mechanism to help people when they need it most.”

Scottish Insurers Lose Compensation Battle

The issue of compensation for victims of asbestos exposure has also taken center stage in Scotland. During a 22-day hearing, UK insurance companies sought to overturn a law giving victims of pleural plaques the right to compensation. Pleural plaques is a benign scarring of the lungs caused by asbestos exposure. On January 8, 2010, the challenge to the law was rejected, and the new act was upheld, requiring that insurers compensate claims by sufferers of this condition.

The battle was a win for victims, and sheds light on the lengths to which insurance companies will go to avoid paying compensation. According to the insurers involved in the hearing, pleural plaques did not count as a “disease,” even though the condition indicates a higher risk for developing mesothelioma.

The Association of British Insurers (ABI) intends to appeal the decision, declaring, “This is not the end of the road.”

But Member of Scottish Parliament Stuart McMillan highlighted the other side of the argument: "In Scotland we have the legislation to ensure those who should be compensated for their injuries receive that compensation  not to deprive people of legitimate compensation as the insurance companies were attempting."

And general secretary Alan Ritchie’s comment underscored the competing interests that drove this challenge, saying, "The insurance industry were using the judicial review to delay paying compensation to asbestos victims both north and south of the border. It was a very cynical manoeuvre and I am pleased it has failed."

While new legal provisions and protections such as these can help redress some of the damage done by asbestos exposure, all too often the legal system is the last recourse for victims who have been poisoned, exploited, and ignored. The crusade to ban asbestos and raise awareness about this deadly substance must be our first line of attack against mesothelioma.

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An Ounce of Prevention...American Public Health Association Calls on Congress to Ban Asbestos in the United States

The topic of asbestos is always shrouded in a haze of misunderstanding, half understandings and disinformation.  Many people believe that asbestos has been banned in the United States.  It has not.  Similarly, many people also believe that asbestos is a problem that is going away. Sadly, it isn't going anywhere.  As a matter of fact, asbestos is still routinely mined in Canada and is sold directly and indirectly for use in products regularly sold in the United States.

Last week I found myself reading Andrew Schneider’s blog, “Cold Truth.”   Schneider, a Pulitzer prize winning journalist, noted that the American Public Health Association at long last is calling on the U.S. congress to enact a ban on the manufacture, sale, export, or import of all asbestos-containing products. Mr. Schneider correctly points out that the United States has basically never had any kind of meaningful ban on asbestos.  For a brief time in the late 80’s asbestos was banned from being imported into the United States.  However, this ban was defeated by legal challenges funded almost entirely by a Canadian industrial group.

Mr. Schneider didn’t discuss the details of the Canadian group involved.  I would like to put a little light on them now.

The Canadian group, then known as the “Asbestos Institute” is, to my way of thinking, exactly analogous to the lobbying powers used by the tobacco industry.  The Asbestos Institute routinely denied, even until very recently, that asbestos was a carcinogen.  They deny that their products hurt anyone.   And when the facts aren’t with them, the Asbestos Institute does anything and everything in its power to protect its industry, public health be damned.

Of course, the world has come to realize that asbestos is deadly.  So to avoid the stigma of “asbestos,” the Asbestos Institute changed its name.  They are now called “The Chrysotile Institute.” Now they don’t deny that asbestos CAN cause cancer, they just deny that THEIR asbestos causes cancer.  Specifically, they state that even though chrysotile is a form of asbestos, it is a harmless form of asbestos. They go on to say that, even if their asbestos were dangerous, if properly used it's as harmless as mother's milk.

Of course, this is complete hogwash, and they know it.  Their main tactic is to keep anyone from ever discussing the dangers of asbestos.  In a recent newsletter The Chrysotile Institute crows about keeping the topic of chrysotile out of the Rotterdam convention of industrial nations. Note that the topic of banning chrysotile wasn’t even on the table.  This was simply a request that chrysotile asbestos be included on a list of hazardous substances and chemicals.

As mentioned at the outset, the topic of asbestos is always shrouded in misunderstanding.  Much of the misunderstandings are intentionally perpetuated.  The asbestos industry has killed hundreds of thousands of people, just like the tobacco industry.  As long as there is money to be made, the asbestos industry will stop at nothing to continue the mining, sale and export of their deadly products.

This is why it is important, as Mr. Schneider observes, that the American Public Health Association is at long last taking a stand on this issue.  Mr. Schneider quoted Linda Reinstein, Director of the Asbestos Disease Awareness Organization on this.  “APHA set a precedent with strong language aimed at preventing asbestos exposure to eliminate deadly diseases.  We can’t let history repeat itself – it is time to ban asbestos and fund educational and research programs,” says Linda Reinstein.

Benjamin Franklin is famously quoted for saying “an ounce of prevention is worth a pound of cure.”  This, in the case of asbestos disease, is painfully true.  All asbestos diseases can be prevented.

The Simmons firm has been a leader in funding research in finding a cure for asbestos diseases.  More than anything, we want our clients, and all asbestos victims, to be cured.  More fundamentally, though, we would like for people not to get asbestos diseases at all, which is why we support a meaningful federal ban on the mining, use, import and export of any and all asbestos and asbestos containing products.

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A Dramatic Turn and New Concerns About the Grace Asbestos Trial

It has been a few weeks since I've discussed the Grace trial in Libby, Montana.  This week, it is my only topic.   What was, to me, the most dramatic testimony presented recently was that of former Grace environmental engineer, Randy Geiger.  Mr. Geiger testified that he became aware that Grace donated contaminated materials to the Libby High School for its running track.  To assess the risks to the student-athletes and liability to Grace, Mr. Geiger conducted a very practical test.  He went to the track and ran laps for 30 minutes.  At the conclusion of 30 minutes, his testing revealed high concentrations of harmful asbestos fibers.

 As of this writing, the prosecution has concluded presenting its case.   The jury has been adjourned, and much of the week has been devoted to wrangling amongst the lawyers about what exhibits can be submitted, and what, if any, testimony can be disregarded.

The testimony of Doctor Robert Locke was carefully examined by all parties and the judge.  As you recall, Robert Locke is a former vice president with Grace.  He has testified against his former employer in this case.  Dr. Locke saved many documents that have proved to be damning to Grace officials.

Doctor Locke has been given immunity from the prosecution in exchange for his testimony.  The documents Dr. Locke saved also tended to prove his own involvement in Grace's poisoning of Libby, Montana.  Lawyers defending Grace are saying the deal given to Locke renders his testimony unbelievable.  Specifically, Grace argues that Locke is, in essence, an advocate for the government.  

Mr. Locke was harshly criticized by the court for providing testimony which varied from that which he provided in 2004 concerning the sale of land.  In 2004 Locke testified that he had never discussed selling asbestos-contaminated land to a couple wanting to build a greenhouse.  At trial, Locke testified that he discouraged Grace officials from selling the land because of the liability the land carried.

An excellent play-by-play of the trial's proceedings, including a listing of key witnesses, lawyers and the judge can be found here:  http://blog.umt.edu/gracecase/

What I find concerning is that Dr. Locke can not come clean without being called a liar.  (In fact, the judge called him exactly that at one point.)  I don't think it can be disputed that Dr. Locke's motivation to cooperate with the prosecution is to save himself from prosecution.  However, to characterize him as an "advocate for the government" isn't necessarily fair either.   Maybe he is an advocate for the people of Libby.  Maybe he is hoping to alleviate his own feelings of guilt.  Maybe he hopes to inspire others who know of corporate wrong-doing to stand up to and against the current of their comfortable corporate culture and do what is right.  Frankly, I can't know exactly all that motivates him, but I do applaud his decision to speak out.  I also applaud the prosecutors for giving a potential defendant an "out" simply by "coming clean."

What I'm finding most frustrating and disturbing about the trial in Libby is what the jury ISN'T hearing.  What they have been told is that the danger of contracting an asbestos disease is exacerbated by the frequency and heaviness of the exposure.  This "dose-response" explanation was explained at trial by Dr. Richard Lemen.  Dr. Lemen is a pre-eminent epidemiologist whose specialty is explaining how asbestos can cause disease.  He was only allowed to testify about the risks to Grace Mine workers and their families.

What he WASN'T allowed to discuss, and what the jury DIDN'T hear was the huge dangers there were and continue to be in Libby to people who didn't have any connection to the mine.  A document disclosed in a bankruptcy proceeding in Delaware revealed that people who neither worked for Grace nor shared a home with someone who did were at equal or greater risk for asbestos disease.  In fact, the report states that "Community residents (of Libby) with no history of occupational exposures represent half or more of the sickened community."  Doctors to this day, the report says, continue to diagnose asbestos-related diseases at a rate of one per week.

Why this is important is that it goes to the prosecution's case that the dangers Grace has created are ongoing.  That is to say the environmental offenses with which they are charged are recent and present.  Grace has argued that its conduct occurred before the environmental laws were enacted, and that its conduct was beyond the statute of limitations.  The reason this report hasn't been disclosed is that the prosecution had to disclose all of its evidence 2 years ago.  This report has only been available for a couple months.  At this point, the jury in the Grace trial probably thinks that what happened in Libby occurred years ago.  

The obvious injustice of this situation is only matched by Grace's brazen indifference.  Grace has hidden in bankruptcy to avoid paying the people they've sickened, and the families they've destroyed by killing one or more family members.  It is hard, even for a jaded lawyer like me, not to be utterly outraged.  

Thankfully, the judge has not irrevocably excluded the recently discovered evidence.  The prosecution still may get it into evidence depending on how Grace conducts its defense.  Stay tuned.

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Mesothelioma & Asbestos Round-Up: April 3, 2009

Asbestos and asbestos-related diseases are a worldwide problem.  This blog largely addresses only those problems in the United States.  However, this week we take a quick look at what is happening in other countries.

We are beginning to take a longer look at our neighbors in Canada.  Canada enjoys a reputation in the world as being very pro-environment.   Canada’s reputation is currently being fractured by its mining and export of asbestos.   The Canadian government displays a startling disregard for the health of not only its own citizens, but the entire world when it comes to the dangers of asbestos.

Last week, several members of the Simmons firm attended the Asbestos Disease Awareness Organization (ADAO) conference in Manhattan Beach, California.  It was an incredibly educational and motivational event.   The topics were diverse and fascinating.  I’ll write more on it in a separate post. 

Without further ado, here are this week’s news updates.

Canada's Asbestos Embarrassment

Activists chose April 1 as the date to shed light on the impact Canadian asbestos is having on third-world countries.  Canada joined Russia and Iran in blocking chrysotile asbestos from being placed on an international list of toxic substances.

Michael Ignatieff can’t make up his mind about asbestos.  Igatieff, the leader of the Liberal Party in Canada waffles between calling for banning Canadian exports of asbestos and simply warning other countries of “risks.”

South Korea

South Korea is another country with emerging asbestos problems.  Not only is it still used in industrial applications, asbestos is showing up in consumer items.  For instance, asbestos is being found in BABY POWDER.

U.S.A.

Union officials recounted how asbestos dust “filled the air” as renovations were performed at the Smithsonian.  Contractors routinely disregarded asbestos safety procedures, according to William Durkin Jr., a representative of Steamfitters Local 602.

The ongoing story about asbestos exposures at the Smithsonian Institution resulted in testimony before a congressional panel.  Smithsonian Secretary G. Wayne Clough acknowledged “oversights” in failing to train and warn Smithsonian employees of asbestos dangers.  He testified that there are no more dangers.  Do you feel reassured?

After weeks of worry, the quarry at Ash Grove Cement Co. in Helena, Montana has been confirmed to be contaminated by tremolite asbestos.

Ash Grove, whom we lauded for paying its workers to stay home while testing was performed has, sadly, stopped paying and is now assisting in getting workers unemployment benefits.

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Mesothelioma & Asbestos Round-Up: March 27, 2009

This week’s collection of news stories provides contrasting ways government and industry can handle asbestos problems. They can hide asbestos problems, or ignore the problem and hope nobody ever finds out. Then, if they are discovered, they can try to deny any wrongdoing. We call that “doing it wrong.”

Government and industry can also choose to acknowledge asbestos problems. They can warn people. They can protect people. They can support them if they are made sick. We call that “doing it right.”

Let’s dive into our first category:

DOING IT WRONG—W.R. Grace

The Libby Trial

Robert Locke, former Grace official, came clean about his involvement in the Libby tragedy. He revealed that he warned the company of asbestos dangers at the vermiculite mine as early as 1976:

“It was time to stand up and do the right thing…”

Mr. Locke, when under cross examination by Grace’s lawyers, explained why he was now testifying against his former employer.

Ash Grove Cement Corp. protects its workers WITH PAY. Our hats go off to Ash Grove, who not only warned its employees of potential hazards, but chose to keep them home with pay, rather then potentially expose them to asbestos.

Wisconsin Gives Free Asbestos Abatement Information Sessions 

The EPA steps in and supervises cleanup in Ambler, Pennsylvania. Ambler was home to several insulation, pipe and brake manufacturers.

Simmons Firm Supports Asbestos Disease Awareness Organization Conference

West Virginia judges protect railroaders’ rights. Supreme Court holds that a railroad can not hold former employees to a “total and absolute” release, given that asbestos symptoms can take 40 years to manifest.

Dancers in Southern California perform to honor a friend’s sick father. Friends of Isabella Bendix, daughter of Ken Bendix, a mesothelioma victim, raised over $3,000 to donate toward curing mesothelioma.

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Mesothelioma & Asbestos Round-Up: March 20, 2009

This week we’ve seen developments in the Libby trial and elsewhere that demonstrate how and why the legal system can be the last safe haven for victims of corporate greed. In the Libby trial, testimony revealed that federal, state and local government agencies were aware of the dangers at the W.R. Grace vermiculite mine as early as 1980. Grace knew of the dangers in the early 70’s or before. While miners and their families were exposed to deadly tremolite, the government did nothing to protect them. 

In our update last week we mentioned that Chrysler prevented a family from burying their beloved father and husband. Again, it is an example of large corporations placing their own bottom line over the simple dignity and privacy of a grieving family. Thankfully, a judge in New Jersey held that Chrysler could not delay or disrupt something as sacrosanct as a funeral.

Each of these cases represents how far an unscrupulous business can and will go to pursue its own interests. Some businesses, like some people, will stop at nothing to gain or protect profit.

These stories are also excellent profiles in courage. Neither the citizens of Libby, nor the family in New Jersey were silent victims. They are fighting for what is right, not just for themselves, but for everybody.

National Asbestos News

The Libby Trial
The EPA began investigating Libby as early as 1980. Testimony revealed that the government, though aware of asbestos dangers, did nothing.

James Becker, a financial analyst for W.R. Grace in the '70s, testified that Grace was aware that asbestos dust had settled over a large area of Libby. His division was charged with analyzing the financial benefits of continuing the mining of the lethal tremolite.

Students at the University of Montana are providing up-to-the-minute updates on the Libby trial on a blog. You can view their blog here: http://blog.umt.edu/gracecase.

Shocking Conduct and Justice Served

The ghouls at Chrysler and Honeywell were prevented from stealing the body of a victim of asbestos cancer from his family.

Deadly Libby Mineral Found in Cement Quarry

Helena, Montana -- The Ash Grove Cement Co. has shut down all of its operations after tremolite, the same deadly asbestos mineral in Libby, was found in its limestone quarry. Ash Grove, whose headquarters are in Overland Park, Kansas, has told its employees not to return to work until further notice.

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