BBC's "Dangers in the Dust" asbestos investigation highlights "take home" asbestos exposure

At long last, we’re seeing some meaningful, in-depth media coverage surrounding asbestos exposure and the horrible diseases it causes, like mesothelioma.

This is all courtesy of a collaboration between the BBC's International News Service and the International Consortium of Investigative Journalists. "Dangers in the Dust" is being rolled out this week across the BBC's international services, and through ICIJ’s more than 50 partner publications worldwide, including the McClatchy publishing company, owner of over 30 daily newspapers in the U.S. The series examines the dangers of asbestos on an international level and also includes a story on victims of “take home” asbestos exposure called, "Asbestos still killing families, decades later."

When most people think of mesothelioma – if they’ve ever even heard of mesothelioma – they think of a disease that strikes retired workers. They don’t think of people like our 39-year-old client Julie Gundlach. Since her mesothelioma diagnosis, she has been a tireless advocate for mesothelioma and asbestos-related illnesses.

When I was contacted by a reporter with McClatchy’s Illinois newspaper, the Belleville News-Democrat, writing an investigative piece on the dangers of asbestos and the “third wave” of asbestos victims, Julie immediately came to mind.

Julie is a young mother living with peritoneal mesothelioma. She lives in St. Louis with her husband, and she was exposed to asbestos when her father brought it home on his clothing after working as an industrial electrician.

Fact: people like Julie who don’t work around asbestos can be exposed to asbestos by others who do.

It’s called “take home” exposure. Here’s how it works: The asbestos dust gets on an worker’s clothes and skin. When they leave to go home so does the dust, causing them to expose their spouses, children and other immediate family members. In some cases, children have developed mesothelioma or other asbestos-related diseases later on in life because they hugged their parents. In Julie’s case, her childhood playroom doubled as her family’s laundry room where her father’s asbestos-covered clothes were washed.

Helping people like Julie as they fight to be that “one-in-a-million survivor,” as she says in the article, is rewarding. Her story illustrates the important role the legal process plays in ensuring mesothelioma cancer patients receive the funding they deserve to get the best treatments available.

As the BND article accurately states, she has had three surgeries and made over 25 trips to New York for treatment. "If it were not for the legalities, I would have never been able to receive the medical treatment I received," Gundlach said in the article. "I'm still not able to work. Mesothelioma kills innocent people, asbestos kills innocent people, it's not banned, and that is the story, that is the issue."

“Take Home” Asbestos Exposure In the Courtroom

Laws affecting victims of asbestos exposure are not relics from past generations. They continue to evolve in real time. Cases involving “take home” asbestos exposure can be especially combative because the company’s defense lawyers argue “take home” exposure isn’t their client’s problem because family members aren’t employees.

The Appellate Court ruled that companies are required to take steps to prevent the deadly dust from reaching the workers’ home. This is important because some courts have gone the other way and ruled the companies have no duty to the workers’ families; even though the risk of disease in the home was completely foreseeable.

For families like Julie Gundlach’s, this is very important. If certain companies are able to change the laws, sick family members will have no legal recourse. It is our goal to continue to fight for victims and make sure they have access to the courts.

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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.

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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 News Round Up - March 13, 2009

Unfortunately, there are some sad and disturbing stories hitting the news wire this week.

In one instance, Chrysler literally stopped a funeral in progress to subpoena the funeral director for possession of the body of a recently deceased and beloved grandpa. Serving the funeral director moments before the burial was to occur; Chrysler further punished an innocent family.

Also, the lawyers for indicted W.R. Grace officials fought to keep out the testimony of environmental experts. Claiming they were “surprised” by the evidence that they were poisoning an entire town, they sought to keep damning evidence from citizen jurors.

National Asbestos News

• Environmental and medical experts testified at the Libby Trial this week. They testified that asbestos levels in Libby far exceeded EPA regulations. Additionally, a medical expert testified that at least 1,800 citizens in Libby have been diagnosed with asbestos-related diseases.

• Defense lawyers for Grace officials sought to have this testimony kept away from the jury.

• Finally, a citizen and business owner in Libby, Montana testified how Grace knowingly sold her asbestos-contaminated property. She explained how here greenhoused and plant nursery business resulted in asbestos fibers being lodged in her lungs. She also testified that Grace knew she would be exposed to asbestos.

• Chrysler as an asbestos defendant: In what can only be described as "shocking," Chrysler gives justification for the bad name that Big Business currently suffers from.

Asbestos In Our Lives

• "Seussical the Musical" was postponed in Bucks County, Pennsylvania after possible asbestos was discovered in the auditorium where the production was to be seen.

• Kyle, South Dakota: Little Wound Middle School was closed after asbestos was found.

• Middletown, Delaware: A fundraiser for mesothelioma victims was held last weekend at the Granite Run Mall in Middletown.

Mesothelioma Medical Developments

• Sydney, Australia: The Bernie Banton Center opens for asbestos victims. It is dedicated to the worldwide early diagnosis and treatment of mesothelioma victims and sufferers of other asbestos-related illnesses. 
  

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Prominent Lawyer from Sunshine State Gives Final Deposition While Dying Of Pleural Mesothelioma

Last week one of Florida’s most prominent attorneys, Milton Ferrell Jr., gave a 3-½ hour video deposition only one day before dying from mesothelioma at Brigham and Women’s Hospital in Boston. In terrible anguish and refusing painkillers, Ferrell wanted to be lucid during his deposition against two brake companies and the Big Three automakers. He wanted the companies responsible for his asbestos cancer to be held accountable for his illness and death, as well as the death of so many others exposed to airborne asbestos through their products.

As former president of the American Board of Criminal Lawyers and chairman of Ferrell Worldwide, Ferrell filed suit with the Miami-Dade Circuit Court one week before his death from mesothelioma. The suit charges the two brake companies and the Big Three automakers with marketing an “unreasonable dangerous” product and failure to warn the public of its hazards. 

Pleural mesothelioma is a terminal cancer caused by exposure to airborne asbestos, which attacks the lining of internal organs. Ferrell’s exposure to such materials was when he was in college working on brakes and cars for extra income; it is likely he was exposed to airborne asbestos while cleaning and removing brakes, as the material was widely used in car brakes and insulation materials for years prior to 1970. Ferrell had already lost one lung to the illness, and the mesothelioma that had spread to his brain, hip, stomach, and remaining lung was taking his life.

Ferrell’s attorney notes that Ferrell had not intended to file suit until he realized how bleak the outcome of the mesothelioma diagnosis was. In his final three days, Ferrell’s mesothelioma lawyer rushed to get a court order to allow Ferrell to give his video deposition before he passed away.

Ferrell was considered a charitable and gracious man. Noted for his work with the Jackson Memorial Hospital; his help to found The Miami Project To Cure Paralysis and the Miami Aids Ministries; and his many other charitable donations and offers of legal services at no charge, Ferrell was well-respected in all regards.

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TEST blog post

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