Articles Posted in Boston Mesothelioma

Less than a week after OSHA slapped Ford Motor Company with a substantial government fine for failing to protect workers from the asbestos-laden products it continues to use, the company lost an appeal on another asbestos case.

Our Boston mesothelioma lawyers have learned that Maryland’s highest court upheld a lower court’s ruling against the firm, awarding $15 million to the family of a woman who died of asbestos exposure from her husband’s work clothing.

Ford certainly isn’t the first to complain about the high cost of damage awards. But it’s worth noting that the $15 million figure was later “adjusted” to $745,000, split between her personal estate representative and two daughters. The cost of a mesothelioma patient’s medical care can easily surpass that in their last few years of life, as treatments are often intense and aggressive.

In this case, the plaintiff, who died before the case made its way to trial, had been diagnosed with mesothelioma. There was no dispute about the fact that her disease was a result of exposure to asbestos. Mesothelioma is a rare and terminal cancer — the only known cause is asbestos exposure.

The primary issue here was the origin of the asbestos that killed her. There were two competing theories:

• That she was sickened by constant contact with the asbestos dust that covered her husband’s work uniform when he was employed as a Ford brake manufacturer;
• That she was sickened by the asbestos contained in a compound produced by Georgia-Pacific Corp., which the family used when they were building their home and also in some subsequent home improvement projects over the years.

The woman originally filed a lawsuit against both firms, alleging they had failed to warn of the dangers in their products. She died in 2009, but the case was carried on by her family as a wrongful death action.

The case, Dixon v. Ford Motor Company, eventually went on to a 12-day trial, after which the jury found the Ford products to be the only substantial contributing factor in her illness and death. Although the jury awarded $15 million in damages, the state’s statutory damages cap limited the actual amount received.

The trial court judge expressed a disagreement with the jury that Georgia-Pacific held no responsibility. As such, the judge entered a cross-claim judgment against Georgia-Pacific, to be paid to Ford.

Both companies appealed. The appellate court found that the lower court abused its discretion in allowing the testimony of a scientist who testified that short-fiber chrysotile asbestos contained in Ford products likely substantially contributed to the development of the plaintiff’s disease. Her theory, known as “probabilistic causation,” was rejected by the appellate court.

The case was then appealed to Maryland’s highest court. This time, the court found that the trial court didn’t err in allowing that expert testimony. First of all, the justices cited Eagle-Picher v. Balbos, in which the court had outright rejected the assertion that mesothelioma can’t be caused by chrysotile asbsetos. Secondly, the court indicated that the expert’s opinion that exposure to this type of asbestos in Ford’s brake pads could lead to mesothelioma is not a novel principle.

Still, the court disagreed with trial court’s decision to enter a cross-claim against Georgia-Pacific, and reversed that aspect of the earlier ruling, leaving Ford solely responsible for the damages.
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The ongoing bankruptcy trial of Garlock Sealing Technologies was partially sealed by a federal judge, as a law professor offered testimony pertaining to allegations of fraud against some of the claimants seeking compensation from the company for asbestos exposure.

Specifically, the professor was testifying about certain provisions in the trust that led to “rampant” fraud in settlement cases.

Our Boston mesothelioma attorneys understand this secrecy has prompted at least one media outlet to file a motion to keep all aspects of the proceedings public.

Part of the reason why this is important is that if fraud were happening on a wide scale with regard to these asbestos bankruptcy trusts, it would be in the best interest of legitimate claimants to have this issue tackled. However, in our experience, we have seen asbestos defendants use unfounded or overblown allegations of fraud as a means to “open transparency” in court proceedings. The ultimate effect this has had is to make it tougher for even legitimate claimants to secure compensation, particularly from more than one defendant.

Are there ever instances of individuals who improperly seek compensation from asbestos trusts or defendants?

There have been investigations, but few leading to any major findings of wrongdoing. Further, research by the Government Accountability Office found that claimant fraud was not a significant problem as it relates to asbestos trusts.

Yet, powerful, deep-pocketed asbestos defendants, intent on defending their assets at any cost, were able to convince Congress members that it was a big enough problem to introduce the Furthering Asbestos Claim Transparency Act, now waiting House approval. This measure would make it tougher for those who have suffered the devastating effects of asbestos exposure to receive just compensation. It requires the public release of extensive personal information about the plaintiffs. Cases would be slowed down and even more victims will die before ever seeing a dime.

In fact, most asbestos victims are grossly under-compensated not only for their enormous medical costs, but also for their personal losses. Asbestos companies have long seized on the advantage afforded by the bankruptcy system to establish these trusts to handle liability claims. But these trusts have always been severely underfunded.

Maybe it was because the exposure happened many years ago. But people tend to forget that these companies knowingly exposed millions of innocent and unsuspecting Americans to this harmful material. These same firms then proceeded to cover up those dangers in order to continue making a profit.

Garlock is a large industrial firm that has been named in thousands of asbestos liability cases over the years, which is why it is now seeking bankruptcy protection. It is the nation’s largest manufacturer of industrial gasket products and has distribution centers established in some 75 countries.

If it wants to take measures to make it tougher for claimants to be compensated – even if that’s in the name of anti-fraud efforts – those tactics should be made public.
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One of the world’s largest pharmaceutical companies is trying to shake its liability for billions of dollars worth of asbestos injury claims.

Our Boston mesothelioma attorneys know that the claims stem from Pfizer’s subsidiary, Quigley Co., which has been long-defunct, yet is seeking protection from further liabilities through a federal Chapter 11 bankruptcy plan, which has already been confirmed by a New York bankruptcy judge.

That judge overruled objections from a host of personal injury plaintiffs who say that this effort is just the latest in a litany of efforts by Pfizer to shield itself from having to pay for damages its subsidiary caused.

Pfizer has said it can’t be held accountable for damages caused by Quigley products, primarily asbestos-laden insulation that was used in steelmaking and blast furnaces. Pfizer acquired the company in 1968 under its now-defunct minerals, pigments and metals division and Quigley continued to make asbestos-containing products through the 1970s.

In the early 1990s, asbestos litigation against Quigley began to mount. As a result, Quigley sold all of its assets in 1992 in order to focus on its liabilities, meaning it was no longer a functioning company. Some 160,000 cases were pending at that time, and the number has continued to grow.

In 2004, both Pfizer and Quigley resurrected the company for the sole purpose of filing for a Chapter 11 bankruptcy that would establish a trust and protect them both from future claims. Pfizer initially agreed to pay a total $430 million to those claimants who were willing to settle. That amounted to about 80 percent of those claimants. Half of that was to be paid in 2005 and the rest once Quigley’s plan was formally confirmed.

However, that confirmation has continued to drag on. Part of the problem is that asbestos plaintiffs say that amount is not enough to satisfy all the pending and future claims against the company. What’s more, Quigley’s bankruptcy, they say, is being improperly used by Pfizer to avoid its own liability.

The New York judge’s decision would have Pfizer paying upwards of $964 million. About $100 million of that would come from insurance.

However, by some estimates, Quigley could face liability claims of nearly $4.5 billion over the next 40 years. What that means is that asbestos claimants would have fared far better on the whole had they chosen to sue the company individually through civil tort law. Once the trust is established, the company can no longer be sued for those claims, which are all subsequently directed to the trust.

Pfizer has paid some $1.25 billion to groups of asbestos plaintiffs outside of the bankruptcy process.

All of this may sound like a great deal of money. But for a company like Pfizer, it is truly a drop in the bucket. While we don’t have exact figures for its total annual revenues, consider that in 2009, Pfizer purchased a rival drug company for $68 billion. It invested $8.1 billion in research and development in 2007 alone. It’s total assets are believed to be in the neighborhood of $186 billion.
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Ford Motor Co. could face nearly $42,000 in fines for its alleged failure to protect workers who came in frequent contact with asbestos-containing materials.

Our Boston mesothelioma lawyers are glad that the U.S. Occupational Safety & Health Administration took the time to investigate the issue and returned a finding that ensures greater attention on lack of worker protections. However, the fact of the matter is that $42,000 is not nearly enough for what these workers will have to endure if indeed their exposure to this toxic material later manifests itself in chronic health issues or, even worse, a terminal diagnosis of mesothelioma. These health issues often don’t surface until many years, sometimes decades, after exposure.

Cases like this reveal why, even though asbestos is no longer as widely used as it once was, we are likely to see asbestos liability claims for many decades to come.

OSHA cited Ford for eight serious violations relating to its respiratory protection standards for employees handling asbestos. Employees at the plant were responsible for producing stamped metal parts for vehicles.

A serious violation, by OSHA’s standards, is one in which there is a substantial probability of serious physical harm or death and that the employer either knew or should have known about that danger and taken action to prevent it or protect workers.

OSHA alleges in one case, an employee who worked as a pipe fitter was conducting repairs to a steam line. That line contained asbestos in the insulation. However, the worker was not warned of the presence of asbestos, nor was he given the proper respiratory protective gear that should have been provided for such work.

In other cases, respiratory protection gear was not worn by workers who were regularly coming in contact with asbestos-laden materials and furthermore, they weren’t working in an area that was properly regulated, marked and ventilated, so as to minimize the number of individuals in the area and also to mitigate the risks to those who would be working there. In some cases, work with asbestos was not limited to authorized individuals. There was no ongoing monitoring of air quality levels while the work was going on, so the company is unable to say how many workers may have been exposed.

In situations where workers might be exposed to asbestos, it is the responsibility of the employer to ensure there are safeguards in place that are both proper and effective at all times.

Ford denies it has done anything wrong.

The auto manufacturing industry has along history with asbestos, as many automobile parts, including gaskets, brake pads and shoes, internal combustion compartments and hundreds of other components have been known to contain asbestos. That’s why we so often see plaintiffs who previously worked as mechanics and in car factories now suffering from mesothelioma and asbestosis.

Although asbestos use has declined significantly since the 1970s, the auto industry is not completely weaned off of it, and sometimes even newer parts still contain parts made with asbestos.
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Garlock Sealing Technologies is preparing to argue at an upcoming trial that it owes a maximum of $125 million for asbestos-related injuries and deaths caused by its products.

However, our Boston mesothelioma lawyers understand that personal injury claimants are putting the number at closer to $1.3 billion.

The case is being heard before a bankruptcy court, which will ultimately determine how much should be set aside in Garlock’s asbestos bankruptcy trust, which will be where future claimants can seek compensation for asbestos-related ailments caused by Garlock products. Those products included seals, gaskets, sheet gaskets, asbestos cloths, packing material, pump packing, rope packing, ring packing, valve packing and sheet packing.

Already. thousands of individuals say their or their loved ones’ exposure to asbestos in products that Garlock manufactured caused the development of mesothelioma, an aggressive cancer that is terminal and for which there is no cure. Mesothelioma takes decades to develop, so it’s expected that many more future claims will be filed against the company.

In business since 1887, the New York-based firm has paid nearly $1.37 billion in indemnity payments, spending more than $100 million annually since the asbestos lawsuits began to emerge. There are still about 100,000 cases pending.

This is why Garlock filed for Chapter 11 bankruptcy protection in 2010. It was known as being one of the most tenacious defenders in asbestos litigation, but it buckled under the weight of the sheer number of claims.

At a recent pretrial briefing in the liability trial within the bankruptcy claim, Garlock’s attorneys said they intend to argue that the company bears little to no responsibility for the majority of the pending claims, they say, plaintiffs are unable to prove their illness was definitively caused by exposure to Garlock products.

The $125 million figure Garlock is now claiming is less than half of the $270 million it originally said it would set aside when it filed for bankruptcy. Garlock said it intends to present scientific evidence showing that most of these pending claims are not valid.

However, those with pending claims say those alone are worth $210 million. Future claims, they believe, will easily top more than $1 billion. They say Garlock’s estimation is a farce and the reality is the firm is doing everything it can to duck its responsibilities to those it harmed.

What’s more, plaintiff representatives estimate Garlock would have to spend at least $320 million just defending itself against the claims that are currently pending in the tort system. So to suggest that $125 million would be enough to settle pending and future claims is not only a slap in the face, it’s not likely to fly with the judge.

As it stands today, there are about 40 asbestos bankruptcy trusts from which current and future claimants may draw, if they can show that their condition was likely at least partially a result of exposure to asbestos in products made by that particular firm.

Garlock is a subsidiary of EnPro Industries Inc. The estimation trial is slated to begin later this month.
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In a blow to mesothelioma plaintiffs, the Maryland Supreme Court ruled that the manufacturer of a joint compound that contained asbestos had no duty to offer danger warnings to household members who breathed in the deadly dus.

Our Boston mesothelioma lawyers are disappointed in this ruling, though we know it won’t directly affect plaintiffs beyond the Maryland jurisdiction – at least for now. We anticipate the defendant, Georgia Pacific, as well as others, will begin pushing this same stance in similar cases across the country. We take very seriously our duty to aggressively fight back, and ensure that these firms aren’t able to escape liability for the lives they’ve had a hand in destroying.

The case involved a female plaintiff who sued Georgia Pacific over a product called Ready-Mix, a joint compound that is typically used to smooth the joints in between slabs of drywall. Back in the 1960s, these joint compounds were made with asbestos.

The plaintiff was born in the 1950s. From infancy until she got married in the mid-1970s, she lived in her grandparents’ household. Her grandfather worked as a construction industry mechanic, from about 1925 and into the mid-1970s. During this time, he routinely worked with products containing asbestos, including the joint compound made by Georgia Pacific.

Throughout her childhood, the plaintiff was often responsible for doing the family’s laundry. In the course of this work, she regularly came in contact with the asbestos dust from her grandfather’s clothing. She breathed in those fibers daily, just as he did. It’s no surprise then that a number of years later, she was diagnosed with mesothelioma.

Initially, the plaintiff had filed suit against some 30 defendants. Most of those defendants settled prior to trial. Georgia Pacific had refused to settle and the case went to trial, with the plaintiff initially victorious in her claims of negligence and strict liability. She won, and was awarded about $5 million.

However, Georgia Pacific responded with an appeal. While the appellate court affirmed the verdict of the circuit court, the Maryland Supreme Court overturned it. In a lengthy opinion, the justices stated that while asbestos was known to be harmful to those who worked directly with those products, there was a “skimpy state of knowledge” with regard to how asbestos might affect family members who had secondary exposure to the dust, particularly prior to the adoption of updated regulations from the Occupational Safety & Health Administration in 1972.

The high court also said there would have been an inability by these companies to offer a warning to household members that would have had any real effect.The court noted that this was at a time before the Internet and cell phones.

The court stated it wasn’t clear how suppliers and manufacturers of asbestos-laden products would have been able to directly warn members of the household of danger when those individuals had no connection to the product, the supplier or manufacturer of the product, the employer that used the product or the owner of the site where the asbestos was being used.

The reality is that had these workers been given any inkling at all that the material on their work clothes was making their family members sick, particularly with a terminal disease, they would not have taken such a chance. These companies failed spectacularly in their duty to warn and they should not be allowed to get away with it simply because the exposure was second-hand.
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A Massachusetts heating and cooling contractor is accused of improperly removing asbestos from a single-family rental unit – against state law – and then bullying the tenant into silence.

Our Boston mesothelioma lawyers couldn’t be more appalled by these allegations, considering the harm to which the contractor reportedly exposed the tenant by his negligent and quite possibly criminal actions.

The reality is that Boston, like many large, older cities in the country, is riddled with asbestos is its schools, government buildings, businesses and even homes. It’s almost inescapable in a structure built in the first half of the 20th Century, given its pervasiveness in products from insulation to tiling to drywall to bonding agents – the list goes on and on. Both the federal and state government are well aware of this, as well as the dangers posed by the presence of these products if they are disturbed. That’s why there are very strict laws about how renovations and demolitions of asbestos-laden structures must be carried out.

At the federal level, the National Emission Standards for Hazardous Air Pollutants for Asbestos, under Section 112 of the Clean Air Act, establishes the safe work practices required to minimize the release of asbestos fibers during projects that involve asbestos-laden structures. Massachusetts has its own laws regarding safe practices as well, which require workers to notify the state when asbestos removal is going to occur and to strictly follow a set of protocol regarding the removal, storage and disposal of the material.

Violators can be sanctioned with criminal charges, prison time and hefty fines.

In this case, the 42-year-old contractor is being criminally charged by the state with two counts of violation of the state’s Clean Air Act for his failure to file notice of asbestos removal with the Massachusetts Department of Environmental Protection. He also failed to prevent asbestos emissions, prosecutors say. Additionally, he’s charged with one count of intimidating a witness.

The property owner is also facing two counts of violation of the state’s Clean Air Act.

Both men have pleaded not guilty, according to the state attorney general’s office.

The property owner is accused of hiring the contractor, who was not licensed in asbestos removal, to replace a boiler inside a rental home where a family with a number of children resided. While the contractor was conducting the work, he failed to seal off the basement. The heating pipe insulation contained asbestos, which was dangerous not only for the contractor but for the unsuspecting family living there as well.

Neither the homeowner nor the contractor took measures to inform state or federal officials that asbestos removal work would be taking place.

Exacerbating the situation was the fact that when the contractor learned he could be facing criminal charges, he went to the home and threatened one of the tenants -a parent to the small children – warning them not to testify against him. This is why he is facing an additional charge.
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The state supreme court in California has agreed to take on review of a case regarding whether a raw asbestos supplier can be found liable for failure to warn users about the dangers of products containing asbestos.

Our Boston mesothelioma lawyers know that suppliers of raw asbestos would almost certainly have known about the dangers of the material, as industry insiders had been aware of problems dating back to the beginning of the 20th Century. The question is whether the supplier of the raw material should be held liable for the damages caused by products made from that material.

The case stems from a mesothelioma diagnosis received from a man who was previously employed by a pipe and supply firm just outside of Los Angeles. Evidence he presented at trial found that from the late 1960s through the late 1970s, he regularly handled water-heater venting pipe products made from a Long Beach manufacturer that received crocidolite asbestos, sometimes referred to as “blue asbestos,” primarily from Special Electric.

Estimates were that from 1974 through 1980, the defendant in this case supplied some 7,000 tons of crocidolite asbestos to the Long Beach manufacturer. Asbestos wasn’t a named ingredient in the Long Beach manufacturer’s pipe products, but there was enough evidence that the company used scrapped pipe containing asbestos in the mix to make its new pipes.

The plaintiff alleged that he was completely unaware of the dangers he was facing each day when he went to work. He further alleged that Special Electric failed to inform both him and his employer of its knowledge that asbestos was a material known to cause foreseeable risks of injury and death.

The trial court jury in Webb v. Special Electric Co., Inc. found in February 2011 that while Special Electric did not design the product it was selling with any type of defect, it failed to adequately warn one of its end users of the risk. This negligence, the jury determined, was a substantial factor in the plaintiff’s harm, and subsequently awarded him $5 million. However, Special Electric was held responsible for just 18 percent of that award, or about $900,000.

However, an appellate court ruled in March that the trial court had erred in its handling of pretrial motions, and that the jury’s decision was unjustified on its merits. Specifically, the court determined that although it would have been relatively easy for the Long Beach supplier to issue danger warnings to users, such as the plaintiff, it would have been “unreasonable” to expect that Special Electric would require its Long Beach customer to do this. What’s more, the court found, the bags in which the asbestos was transported to the Long Beach firm did contain warnings that the court believed were sufficient to satisfy its requirement.

Now, the California Supreme Court has agreed to take on the question of supplier responsibility.

The decision will technically only have a direct impact on asbestos litigation in California, but the decision could serve as a guide to other courts nationwide, expanding its potential influence.
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An Atlanta-based paper manufacturer, Georgia-Pacific, has been ordered by appellate judges in New York to hand over internal documents relating to research it commissioned regarding the safety of its products.

The justices say the company, which is a defendant in ongoing asbestos liability litigation, needs to submit the documents for a judicial review to determine whether those records could be subject to the crime-fraud exception to attorney-client privilege.

Our Boston mesothelioma lawyers understand the decision was an anonymous one for the panel ruling in the case of Weitz & Luxenberg v. Georgia Pacific, and that the judges also demanded the firm give up the raw data used to complete those studies.

What the company had been trying to do was to uphold those studies as evidence that their products had not been harmful. Of course, the objectivity of those studies is highly questionable considering Georgia-Pacific had paid for them to be conducted. The judges ruled that they would need to review the data themselves before determining whether the research could be used as evidence to support the company’s case.

The opinion directly affects all claims brought against Georgia-Pacific by one law firm in New York, and it affirms an earlier order decreed by the Manhattan Supreme Court in late 2011. The ultimate findings of the appellate panel could influence claims against Georgia-Pacific in other jurisdictions as well.

Georgia-Pacific, with some 300 manufacturing plants across the globe, is one of the world’s largest producers of paper, tissue, pulp and building products. It’s wildly popular brand names include Quilted Northern and Angel Soft toilet paper, Dixie paper products and Brawny paper towels. What you might not realize is that the firm was also responsible for the production of a sizable line of building materials and certain chemicals.

Back in the mid-1960s, the firm acquired a company called Bestwall Gypsum, which made drywall, plaster and fertilizer out of gypsum and also, commonly for the time, asbestos. The use of asbestos in the firm’s products continued for at least a decade after Georgia-Pacific bought the firm. It’s been widely argued by asbestos plaintiffs that Georgia-Pacific executives were well aware of asbestos dangers when they bought Bestwall Gypsum, but continued to use it in those products anyway.

The studies in question, commissioned by the firm in 2005, were intended to test the harmful effects of a no-longer-produced joint compound product that contained asbestos. Most of the studies were co-authored by the company’s director of toxicology and chemical management. Even the research that wasn’t co-authored by that director was reportedly heavily influenced by him and each of the studies was reviewed by the company’s legal team before they were released.

But the studies failed to disclose the involvement of Georgia-Pacific in any of it, upholding itself as independent research – even going so far as to falsely claim the company had no part in it.

Now, asbestos litigation plaintiffs want the company to release the internal communications and all the raw data used to formulate those studies. Georgia-Pacific has refused, calling the records “privileged.”

In the summer of 2011, a special master ordered the records turned over for a judicial review to determine whether the records were a crime-fraud exception. Such an exception would be found if judicial services were used to commit crime or a fraud. The earlier Manhattan Supreme Court judge found that the company’s undisclosed involvement in the research constitutes a sufficient basis for a claim of fraud.
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Debbie Brewer loved her father.

Every night, when he returned home in Great Britain from his job at the Royal Navy dockyard, she would cuddle up next to him, breathing in the asbestos dust that covered his work uniform, which he would change out of after greeting his family each evening.

Now, our Boston mesothelioma lawyers have learned, Brewer has died at the age of 53, a loving mother herself. Those childhood hugs with her dad are believed to have been the cause.

While we typically think of asbestos litigation as concerning only those who worked directly with the deadly fibers, we now know just how dangerous that dust was to the immediate family members of those workers as well. It’s a testament to how dangerous the material truly is. These are people who weren’t necessarily hauling mounds of it over the course of years. But they were washing their spouse’s clothing. They were cleaning the tracked in dust from up off the floors. They were embracing their loved ones after hard days work.

Terminal illness and death is the price they are paying.

In Brewer’s case, her father died at the age of 68, also of asbestos-related lung cancer. Brewer died much younger because her exposure occurred much earlier in life. She was diagnosed the same year her father died.

The disease can lie dormant for decades before symptoms emerge allowing doctors to make a diagnosis. The prognosis is poor, with most patients given just a few years to live. Brewer, amazingly, survived seven years with the disease, most likely because of her early diagnosis and treatment.

A number of scientific journal articles examine the effects of parental asbestos work on children, and the consensus so far is that youth were unquestionably at risk by parents who returned home in their work clothing directly after their shifts.

Research in the 1960s indicated that wives were often placed at risk when they laundered the asbestos dust-covered clothing of their spouses. A 1971 study conducted by the National Institute for Occupational Safety and Health found that all family members could be placed at risk if the asbestos-laden work clothing was washed with other articles of clothing. Those fibers could then stick to the children’s clothes, and thus cause them to suffer asbestos-related illness later in life as well.

That’s part of the reason why we’re seeing younger and younger asbestos victims filing claims.

Another example of this is a 47-year-old woman from Australia, who was exposed to the “devil’s dust” as a child while watching her father cut asbestos cement sheeting in the family garage. She inhaled puffs of the dust, and received a mesothelioma diagnosis at age 45. Neither her father nor siblings have thus far developed the disease. She, however, has been given a few years to live – and that is with aggressive treatments and therapies.

An untimely death due to mesothelioma is tragic at any age. But for those who are dying so young, exposed as innocent children, by parents who no doubt would have taken every precaution against it if they’d known, is all the more unjust.

We are committed to working closely with these individuals and their families to fight for compensation.
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