ADAO Praises Senate for Introduction of Sixth Annual Resolution that Establishes "National Asbestos Awareness Week"

Asbestos Awareness Week is back thanks to the Asbestos Disease Awareness Organization. In a press release issued this week, ADAO announced a resolution declaring the first week of April as “National Asbestos Awareness Week.” Senator Max Baucus (D-MT) introduced the resolution, along with a group of co-sponsors and key supporters, including: Senator Barbara Boxer (D-CA), Senator Richard Durbin (D-IL), Senator Dianne Feinstein (D-CA), Senator Johnny Isakson (R-GA), Senator Patrick Leahy (D-VT), Senator Patty Murray (D-WA), Senator Harry Reid (D-NV), and Senator Jon Tester (D-MT).

Read the full press release below: 

ADAO Praises Senate for Introduction of Sixth Annual Resolution that Establishes “National Asbestos Awareness Week”

March 03, 2010

WASHINGTON–The Asbestos Disease Awareness Organization (ADAO), the leading organization serving as the voice of asbestos victims, today applauds Senator Max Baucus (D-MT) and cosponsors for introducing a resolution that declares the first week of April as “National Asbestos Awareness Week” and seeks to “raise public awareness about the prevalence of asbestos-related diseases and the dangers of asbestos exposure.”

Additional cosponsors and key supporters include: Senator Barbara Boxer (D-CA), Senator Richard Durbin (D-IL), Senator Dianne Feinstein (D-CA), Senator Johnny Isakson (R-GA), Senator Patrick Leahy (D-VT), Senator Patty Murray (D-WA), Senator Harry Reid (D-NV), and Senator Jon Tester (D-MT).

“We are grateful to the U.S. Senate to have the opportunity to help raise the level of public awareness about the prolific dangers of asbestos and further unite doctors, scientists, and public health advocates during National Asbestos Awareness Week for this important effort. During the past six years, ADAO has seen the progress and indeed, this confirms what Americans deserve and want, we know asbestos prevention and education will save lives and dollars,” said Linda Reinstein, Executive Director and Co-Founder of the Asbestos Disease Awareness Organization.

Asbestos is a known human carcinogen and exposure can cause asbestos-related diseases, including mesothelioma, lung cancer and asbestosis. Studies estimate that during the next decade, 100,000 workers around the world will die of an asbestos related disease – equaling 30 deaths per day.

ADAO will hold its Sixth Annual International Asbestos Conference on April 10, 2010 in Chicago, Illinois.

ADAO to Address OSHA on the Need to Ban Asbestos Tomorrow Morning, Available Via Live Webcast

Our friends at the Asbestos Disease Awareness Organization continue to work hard on behalf of victims of asbestos-related diseases. Linda Reinstein, Executive Director, will address OSHA tomorrow morning at 9 a.m. EST about the need to support a comprehensive ban on asbestos. We hope you're able to watch.

 From the ADAO Web site:

On behalf of the thousands of victims and families affected by asbestos, Linda Reinstein, ADAO Co-Founder will present on Thursday, March 4th at 9:00 am (Eastern) at “OSHA Listens” about the urgency and importance of a complete ban of asbestos at this is truly a unique opportunity. Since we cannot all be in DC, I hope you’ll take advantage of the live webcast that OSHA will broadcast. It will be streamed live all day on March 4th: http://www.osha.gov/as/opa/osha-listens.html.

 

Artist’s Legacy Cut Short by Asbestos Exposure

Working as I do with mesothelioma patients and their families and seeing the suffering cause by this deadly, preventable disease, it’s easy to be frustrated by the lack of knowledge about asbestos exposure. Thankfully, we’ve been seeing more and more coverage about this serious issue in the mainstream media as the news spreads about the dangers of asbestos exposure.

Recently, I came across a story that appeared on the Milwaukee news program, Today’s TMJ4 News. In it, investigative reporter Aaron Diamant tells the story of Richard Herr, a sculptor and Sheboygan, Wisconsin, native.

Richard’s story is a tragic one of a life cut painfully short by mesothelioma. It’s not a typical story—Richard didn’t work in construction or industry. He was a gifted sculptor and teacher who used asbestos in his studio to make the molds for his works of art. After decades of this exposure, he developed this deadly cancer caused by asbestos and died in 2009.

As Richard’s illness and death shows, mesothelioma is not going away. In fact, in Wisconsin, some reports indicate this deadly disease is on the rise. Even though asbestos was officially outlawed in the ‘70s, people are still being exposed every day. And since asbestos still lingers in our environment, anyone can be exposed—regardless of whether or not they work in industries that in the past have been associated with this painful form of cancer.

Because of the lack of education about asbestos, Richard’s legacy as an artist was cut short. Richard’s death was a horrible a loss, and one of the most tragic things about it is that it could have been avoided. As he says about the asbestos he used in his studio, “If I’d known of any hazards, I wouldn’t have used it.” Let’s hope that as the word spreads about Richard and victims like him, this kind of deadly exposure can be avoided. That would be Richard’s greatest legacy.

Department of Defense Funds New Research in the Fight Against Mesothelioma

It’s seldom discussed, but one chief factor in asbestos exposure and the development of mesothelioma is military service. Until its ban in the 1970s, asbestos was used throughout the military installations and ships. In fact, one-third of those who die from the deadly cancer mesothelioma were exposed to asbestos on the ships and in the shipyards of the U.S. Navy.

Thankfully, the Department of Defense (DoD) has committed itself to doing something about this crisis. In 2008, awarded its first-ever grant for research on mesothelioma, a $2.4 million award to Courtney Broaddus, M.D., for her work on macrophage-induced inflammation in mesothelioma. The grant was awarded as the result of a directive by the Senate Defense Appropriations Subcommittee to fund research in mesothelioma.

Since that first award, the DoD has stepped up its efforts. In 2009, the Department awarded several million dollars in funding to three important research projects that focus on investigating the early detection of mesothelioma, identifying new therapeutic targets, and implementing a clinical trial on new therapy.

This new funding commitment is admirable, but it only begins to redress the neglect of mesothelioma research by the U.S. government. The funding for research on mesothelioma lags far behind that of other cancers. In fact, from 2004 to 2007, the National Cancer Institute (NCI) invested less than $6 million on mesothelioma research—only one-tenth of 1 percent of its annual budget.

We hope that these new funding initiatives from the DoD signal an era of increased participation in mesothelioma funding and research by the U.S. government. Considering the sacrifice our veterans make, we owe it to them to fight for a cure for this deadly disease. 

Update from ADAO on Legislation to Ban Asbestos in the U.S.

In 2010 we are doubling our efforts to push legislation forward that would ban asbestos in the United States once and for all. Our first formal effort of the year began earlier this month when we reached out to the White House, Senate and House in snowy Washington D.C.

Despite historic snowstorms that literally shut down D.C. in early February, we were able to make contact with key policy makers through a series of conference calls. Our discussions focused on legislation that would ban asbestos and the introduction of our annual asbestos awareness week resolution in both the House and the Senate.

To the thousands of families affected by mesothelioma and asbestos exposure, I want you to know that Congress has heard your voice and read your letters – thanks to the advocacy and efforts of thousands!

In educational discussions, ADAO continues to highlight the irrefutable facts that the WHO, EPA and U.S. Surgeon General confirm, “Asbestos is a carcinogen and there is no safe levels of exposure.”  We must prevent exposure and fund research to eliminate diseases.

On behalf of ADAO and you, we owe Senator Baucus and Representative Cohen our gratitude for carrying the “Asbestos Awareness Week” Resolution designating April 1 – 7 a week of awareness.

Many thanks to those who make our work possible including our network of experts, community, and sponsors; thanks also to Jordan Zevon, ADAO National Spokesperson, for joining us on this special trip to The Hill.

In unity,
Linda Reinstein

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.

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.