Rueters article highlights need for asbestos awareness

Earlier this week, while skimming my newsfeeds, I happened upon an example of why you shouldn’t believe everything you read. Over the past year, several companies that knowingly manufactured products with asbestos have declared bankruptcy to avoid their responsibility to compensate the people whom they killed. Reuter’s wire service included a June 7 story about the most recent, called Garlock Sealing Technologies, which manufactures fluid sealing products like gaskets used in the piping industry.

At one point, the article states that asbestos was banned by the U.S. government.

This is not true. Asbestos is not banned. Not in the U.S. Not in Canada. In fact, Canada is the second highest exporter of asbestos and the U.S. is its main customer, according to the U.S. Geological Survey. There has been an effort to ban asbestos with the Ban Asbestos in America Act sponsored by U.S. Sen. Patty Murray, but corporations, special interest groups and their lobbyists have defeated it every year for the last several years.

Research directly links asbestos exposure to deadly diseases like mesothelioma and lung cancer. The government has acknowledged the long-term danger associated with asbestos exposure by imposing training guidelines, like wearing hazmat suits, to ensure its safe removal from buildings. The irony is obvious when you consider that just last year the United States still exported 715 tons of this deadly poison, which kills 10,000 Americans annually, to use in shingles, brake pads and other household appliances.

More than four decades ago, the Environmental Protection Agency declared asbestos a known human carcinogen yet we’re still importing it in 2010?

It’s hard to convince the public a total ban is needed when they already believe it’s outlawed. Even politicians believe a ban is in place. As the Simmons law firm attends the Mesothelioma Applied Research Foundation’s 2010 International Symposium on Malignant Mesothelioma this week, I’m reminded of a story from last year’s event.

While advocating for more mesothelioma research dollars on The Hill, one mesothelioma victim got into an argument with their Congressman over whether asbestos had been banned. The Congressman, like most people, assumed asbestos had long since been banned by the U.S. government. You can imagine the Congressman surprise when a quick internet search proved him wrong.

Articles like the Reuters story perpetuate this misconception. The truth is asbestos is regulated, but it’s not completely banned. This article offers a stark reminder that we must take action now to prevent future asbestos-related deaths, just like we must continue to hold companies responsible for their actions.

Bankruptcy does not make them accountable. It’s a slap on the wrist. These companies are going bankrupt because they knowingly produced a product that poisons people, and they don’t want to take responsibility for their actions. It allows these companies to continue to earn profits while evading their responsibility to compensate the people they killed.

Going bankrupt doesn’t prevent more people from continuing to develop asbestos-related illnesses. It doesn’t give closure to people who have been diagnosed with mesothelioma or asbestos induced lung cancer. Banning asbestos does.

But you shouldn’t believe everything you read. Click here to learn more about what you can do to ban asbestos.

Simmons Firm to Attend 2010 International Symposium on Malignant Mesothelioma

It’s once again that time of year when the mesothelioma community descends on Washington, D.C. for the 2010 International Symposium on Malignant Mesothelioma hosted by the Mesothelioma Applied Research Foundation

This year the 3-day meso conference will run from June 10-12, 2010. Day one will be spent visiting congressional leaders. Day two and three will feature presentations by leading researchers and doctors about the most recent developments for the treatment of meso. Support sessions will also be available for meso patients and their families throughout the event. Several representatives from Simmons will be attending to show our support.

A sampling of the presentations I’m looking forward to include:

• Navigating Mesothelioma Clinical Trials with GPS (Getting Personalized Service)
  Presented by Robert Taub, MD, PhD
• Present and Future of Meso Treatment: Surgeon and Researcher Perspective
  Presented by Harvey Pass, MD
• Update on Clinical Trials and Meso Research
  Presented by Mary Hesdorffer, MS, APRN-BC, Meso Foundation Medical Liaison

Click here to view the full agenda.(PDF)

During this year’s conference, MARF will recognize three families whose selflessness has helped raise awareness about the dangers of asbestos exposure and mesothelioma.  According to MARF:

“The Bendix family, the Ruble family and the Sterling family have endured tremendous personal losses at the hand of mesothelioma. Despite knowing that their loved ones could not personally benefit from the results of their work, they banded together with friends and communities, to ensure hope for future generations, by funding three critical research projects through the Meso Foundation’s Research Program.”

It’s contributions families and individuals like this make that move us closer to the day when better treatment options become available and closer to finding a cure. I encourage all of you to join us as the mesothelioma community comes together to fight back against this orphan disease.

Click here to register for the 2010 International Symposium on Malignant Mesothelioma 

Asbestos Litigation in California: Filling in the Facts

Last fall an article filled with half-truths reared its ugly head in the California Daily Journal, attacking the integrity of asbestos litigation in California.

Half-truths are a dangerous animal. Fortunately, Gary Paul of Waters, Kraus & Paul has issued a thoughtful response to the article, debunking some of its misrepresentations, and proving yet again that even the wildest of half-truths can be tamed.

Gary is an excellent lawyer and stalwart defender of asbestos-victims’ rights. For your consideration, he’s been kind enough to give me permission to share it here on our blog.

Asbestos Litigation in California:  A Response to Mark Behrens

By Gary M. Paul

In responding to Mark Behrens’ November 18, 2009 column on asbestos litigation in California, it is difficult to know where to begin.  The piece is so packed with mischaracterizations, half-truths and outright falsehoods that it would be comical were the subject not so serious.  Yet like clockwork, its assertions have been repeated by the Civil Justice Association of California, which like Mr. Behrens would never let the facts get in the way of a good yarn.

Mr. Behrens first asserts that “lawyers who bring asbestos cases have kept the litigation going by adapting to changing conditions.”  It is hard to imagine a more callous statement: what “keeps the litigation going,” sadly, is the many thousands of Americans who continue to die each year of asbestos-related cancers.  Mesothelioma, an extremely painful and invariably fatal cancer of the lung lining, alone still kills 3,000 Americans a year.  It is their widows and children who, in Mr. Behrens’ crass formulation, have the temerity to “keep the litigation going.”

Mr. Behrens repeats a familiar complaint about out-of-state law firms opening offices in California.  It is worth noting, of course, that Mr. Behrens’ own firm, founded and headquartered in Kansas City, has opened two California offices in the last ten years.  As for me and my firm, I have been practicing law in Los Angeles for 35 years.  Andy Waters, the firm’s founding partner, lived and practiced in Long Beach over 20 years ago.

Mr. Behrens charges that lawyers file unnatural numbers of cases in California because it will afford a “tactical advantage,” rather than file cases “where there is a logical and factual connection to a claim or claimant.”  This is not true of California asbestos litigation and never has been true.  First, Mr. Behrens does not state what the “tactical advantage” in California is; in fact, there is one feature of California law that operates very harshly on asbestos victims: Cal. Civ. Proc. Code §377.34, which bars the recovery of damages for pain and suffering of a decedent.  Since this is a very significant element of damages in asbestos cases, available in many other states, it is hard to see why plaintiffs with no connection to California would file their cases here.

Second, it is in any event simply a myth that there are legions of out-of-state cases in California.  Mr. Behrens states that a 2006 “sample” of California asbestos plaintiffs showed that 30% had addresses outside California.  But this ignores the fact that many persons who no longer live in California nonetheless sustained their exposure to asbestos here due to the state’s large number of industrial and petrochemical facilities, shipyards and naval bases.

Asbestos industry lobbyists themselves have acknowledged that there is no glut of cases from other states in California—indeed, they have used this fact for their own purposes in other states.  Just this year, for example, a bill was introduced in the Texas Legislature that sought to ameliorate certain very restrictive features of Texas law in mesothelioma cases.  Some claimants asserted that Texas law was so harsh that Texans were being forced to file out of state, including in California.  Peter Coleman, who defends asbestos cases for the Sedgwick firm in San Francisco, testified that he had analyzed all mesothelioma cases filed in California in the years 2007 and 2008, and found that 373 claims alleging mesothelioma were filed during that two year period.           

Of these 373 claims, they had exposure information on 362 of them, and 342 of these 362 alleged exposures in California.  Even without regard to residence, then, the vast majority of all mesothelioma claims filed in California involve exposure here.

When you know the facts that industry lawyers use for their purposes elsewhere, you know there is no problem with out-of-state filings.  And when the occasional case with no true California connection does get filed, a court can readily dismiss it on forum non conveniens grounds. See, e.g., Hansen v. Owens-Corning Fiberglas Corp., 51 Cal. App. 4th 753 (1996).  Mr. Behrens is apparently not aware of the forum non conveniens doctrine (he has never personally tried a toxic tort or asbestos case), as his proposal to enact “reforms” to “send out-of-state claimants to more appropriate jurisdictions” ignores the fact that California law already provides the means for doing so where a case has no true nexus with the state.

Mr. Behrens knows full well that there is no problem with out-of-state asbestos filings.  Nor do the relatively small number of mesothelioma and other asbestos-related cancer cases filed in California have anything to do with the “worsening financial crisis” affecting state courts to which Mr. Behrens refers.  This financial crisis is, of course, a result of many causes, and state courts around the country are experiencing similar problems.  See, e.g., “State Courts at the Tipping Point,” New York Times, November 24, 2009. 

Finally, in his perhaps worst example of misleading commentary, Mr. Behrens quotes from an order by Judge Munoz in a single Waters & Kraus mesothelioma case.  Somehow, Mr. Behrens neglected to mention that Judge Munoz specifically found that nothing Waters & Kraus did in that case was impermissible; that the Second District Court of Appeals and the California Supreme Court both summarily rejected a defendant’s attempts to seek appellate review of Judge Munoz’s order (the Court of Appeals is currently considering a second attempt); and that the case—as Mr. Behrens knows full well—involved an egregious attempt by defendants to delay a dying man’s deposition in California.  In truth, the “grisly game of asbestos litigation” far more typically involves meritless defense maneuvers to delay dying plaintiffs’ trial dates until after they pass away, thus denying them and their families their day in court, and avoiding a significant element of damages exposure.  For example, in Galassi v. A.W. Chesterton Company, No. C-05-02017-WHA (N.D. Cal. June 13, 2005), an asbestos defendant, in a classic maneuver familiar in asbestos cases, removed a dying mesothelioma victim’s case one month before trial.  The federal court found that the removal “was wholly unnecessary, meritless and obviously an attempt to delay plaintiffs’ upcoming trial date.”  The court therefore found that an award of attorney’s fees and costs was warranted.  The baseless removal paid off, however, as the plaintiff died before a new trial date in state court could be scheduled.

Much as the asbestos industry concealed the hazards of its product for decades, Mr. Behrens conceals the true facts behind California asbestos filings, and the true circumstances behind what he asserts is “litigation gamesmanship.”  He also conceals his true interests.  Mr. Behrens describes himself as “an attorney in the Washington, D.C. – based Public Policy Group of Shook Hardy & Bacon.”  From this description one might almost think that Mr. Behrens spends his time reflecting on matters of “public policy” from an academic, disinterested standpoint.  But he is hardly disinterested: Mr. Behrens is a partner at the Shook Hardy firm, which regularly represents Lorillard and other companies in asbestos litigation.  Yes, that’s Lorillard—its cigarettes used to have asbestos filters in them (thus creating perhaps the most lethally defective product ever made).

Mr. Behrens also files between 15 and 20 amicus briefs a year for the so-called “Coalition for Litigation Justice,” the American Tort Reform Association, the Property and Casualty Insurers Association of America, the American Petroleum Institute and the American Chemistry Council.  These groups, of course, consist of corporations that are frequent defendants in asbestos litigation, and insurance carriers responsible for their liabilities.  In addition, Mr. Behrens receives an $8,000 monthly retainer from the Coalition for Litigation Justice, separate and apart from the remuneration he receives for filing amicus briefs on the Coalition’s behalf, essentially to write articles like the one he wrote for this publication.  Finally, Mr. Behrens is a lobbyist for asbestos defendants including Crown Cork & Seal Co. and for the American Legislative Exchange Council—a group that has a bland name but that derives 95% of its funding from corporations.  Its “private enterprise board” includes such regular asbestos defendants as Koch Industries, Exxon Mobil and Pfizer.  From about February to the early summer of this year, Mr. Behrens received about $20,000 per month just from his lobbying activities on behalf of Crown Cork & Seal.  Mr. Behrens apparently did not think that any of this information was relevant.

In any event, the California bench and bar should be reassured that there is no glut of out-of-state filings in California.  The relatively few cases that are brought, of course, involve catastrophic injuries.  Indeed, Mr. Behrens quotes a former San Francisco Superior Court judge who said, "Lately, we have seen a lot more mesothelioma and other cancer cases than in the past."  Yet ironically, in his last paragraph, Mr. Behrens recommends that California enact “a series of reforms, [including] assuring that claimants are truly sick….”  Every asbestos claimant in California is “truly sick,” and “truly dying,” because of industry conduct juries have repeatedly found negligent and indeed grossly negligent.  These claimants ask only their day in court, and California’s system works well in providing it.

Gary M. Paul is a partner at Waters, Kraus & Paul in Los Angeles.

Kansas City Family Affected by Mesothelioma Makes Headlines, Fights On

Earlier this year the family of Wendell Mason, who died of mesothelioma, was featured on the local NBC station in Kansas City about mesothelioma and the dangers of asbestos exposure in the home.  Last week the Masons returned to the news in an article titled "Confronting the Needless Tragedy of Mesothelioma." The article was by Thomas Bogdon and appeared on the online news site KCTribune.com.

The good news, as cited in the article, is that the city of Olathe, Kansas, proclaimed September 26 as Mesothelioma Awareness Day, thanks in part to the work of Elizabeth Mason and her two grown daughters and grown son. This is an important achievement, and I applaud the Masons for their dedication to building awareness.

The bad news, as I told Mr. Bogdon when he interviewed me for this article, is that asbestos - a carcinogen known to cause mesothelioma - continues to be imported into the U.S. The need for research and better treatment options continues to remain urgent and dire for the thousands of families currently fighting against the disease.

I applaud Mr. Bogdon for covering this difficult subject in such a thoughtful and compassionate manner. The Masons are a courageous family, and it's wonderful to see their hard work pay off.  

NBC Station in Kansas City Focuses on Mesothelioma and Dangers of Asbestos Exposure in the Home

This week the local NBC station in Kansas City ran a segment about mesothelioma and the risk of being exposed to asbestos called “Hidden Hazard Missed By Contractors.”  The story focused on the dangers of removing a popcorn ceiling in an older home.  Many of those ceilings contain tiny asbestos fibers that can become airborne during the removal process. It is well documented that inhaling these microscopic asbestos fibers can eventually lead to lung cancer and mesothelioma. Suffice to say that reporter Jenn Strathman did a nice job explaining what, we know all too well, is a very complex and serious topic. 

When Ms. Strathman reached out to the Simmons firm as a resource on the subjet, we were happy to oblige. Media exposure about the dangers of asbestos exposure and the human face of mesothelioma is critical to building awareness. Quite frankly, it does not happen often enough. The story of mesothelioma victim Wendell Mason, featured in the newscast, illustrates the pain and heartache that come with a terminal cancer diagnosis.

Hats off to NBC for running the piece and plugging the Asbestos Disease Awareness Organization and the Mesothelioma Applied Research Foundation, both quality organizations that deserve recognition and attention.