Articles Posted in Boston Mesothelioma

It’s been about 40 years since asbestos was regularly used in the construction, automobile and manufacturing industries in the U.S.

And yet, our Boston asbestos injury lawyers know that diagnosis of mesothelioma, the terminal cancer caused by exposure to asbestos, has yet to taper off to any significant degree.

This anecdotal knowledge was recently affirmed by research published in the International Journal of Occupational and Environmental Health. The study focused on an analysis of available cancer data in determining whether mesothelioma was yet in decline.

It’s not.

In fact the Surveillance Epidemiology and End Results Program determined that the annual incidence rate of mesothelioma in this country is about 3,000. That’s where it has remained for the last three decades.

Eventually, it will decline. However, we’re not likely to see evidence of that for at least another decade or so. The reason has to do with our nation’s history of asbestos use, as well as the way that mesothelioma affects the human body.

Asbestos was widely used throughout the 20th Century for a vast array of commercial purposes. It was prized for the fact that it was durable, fire-resistant and cheap. However as it turns out, it’s also deadly. The material fibers, when airborne, are ingested and create scar tissue surrounding the lining of the lungs that, over time, can develop into mesothelioma, which is fatal.

Manufacturers have known of the risk since the 1930s, but they continued to use it in abundance until the 1970s. In 1973, America was at its peak use of the material, consuming nearly 805,000 metric tons of it.

In 2011, the country consumed just 1,180 metric tons. (It’s undoubtedly a significant drop-off, though we’d rather see that figure at 0.)

Still, the reason we haven’t seen any major reduction in mesothelioma rates is the latency period, which stretches anywhere from 10 to 50 years, averaging 30 to 40.

That means someone who worked with the material in 1975 might just now be learning of the diagnosis. That’s why those who were employed in manufacturing, shipbuilding, construction and electrical jobs prior to the early 1990s (and sometimes even since) need to keep a close watch on their health, as early detection is key for mesothelioma sufferers to prolong life as much as possible.

The other reason we aren’t likely to see mesothelioma rates plummet anytime soon is that it still exists almost everywhere around us. In just about every product or structure built before the mid-1980s, you are likely to find the presence of asbestos. What’s especially troubling is that it gets even more dangerous when it ages or when it’s disturbed.

This is why you have state and federal requirements about asbestos removal. However, those standards aren’t always followed.

We are likely to see many additional cases of mesothelioma in America, though we do look forward to the day when we can say it’s finally abating.
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Asbestos defendants have developed a keen knack for deflecting blame for their own egregious negligence by attacking the integrity of others.

Our Boston mesothelioma lawyers have learned the most recent example of this is out of Baltimore, where defendants are suggesting that a doctor who worked as a consultant for the Orioles’ baseball team and also diagnosed numerous blue-collar workers with asbestos somehow had an ulterior motive and may have been untruthful.

The doctor is understandably incensed, calling such allegations not only entirely false but insulting.

This situation has arisen from an attempt by a large legal firm out of Baltimore that is hoping to revive some 11,000 dormant asbestos cases. Two decades ago, the city set up a tiered system to deal with the flood of asbestos litigation, prioritizing the cases of the sickest individuals. The law firm now contends that many of those who were exposed to asbestos prior to the 1990s but had no real symptoms are very ill now, though the tier system is such that they aren’t likely to have their cases heard in court before their deaths.

The firm is trying to change that by proposing a large number of these similar cases be heard at once. It would give the Baltimore court system a chance to clear the backlog and it would allow these plaintiffs to finally have their day in court.

It’s unsurprising that the defendants in these cases are fighting back with everything they’ve got.

This latest approach is not the first time defendants have attacked the credibility of medical professionals, though this time it is gaining a lot of attention due to the high profile position of both the doctor and the lawyer.

Defense lawyers for chemical company Union Carbide say that they oppose the contention that these asbestos exposure cases have enough in common to be lumped together because prior medical evidence turned over by doctors who diagnosed a large number of patients has proven unreliable.

At the time that the doctor was diagnosing these mesothelioma patients, he worked as a consultant for the Orioles, a team that is owned by the lawyer taking up the dormant asbestos case cause.

It’s worth noting that first of all, the attorney wasn’t representing those mesothelioma patients at the time they received their diagnosis. Secondly, to insinuate in court filings that a medical doctor would falsely diagnose someone with a serious and fatal illness as a favor is a gravely serious charge bordering on libel.

The doctor holds that his work with asbestos exposure patients predated his work with the Orioles.

The defendant argues that it would be impossible for a doctor to diagnose 77 patients with mesothelioma in a single day, as this doctor is alleged to have done. However, as the doctor pointed out, filing numerous diagnosis reports in a single day doesn’t mean those patients were all examined that day. Indeed, an examination would require a half an hour at the very least, and probably would need to be followed up by X-ray, medical history reviews and other tests.

The doctor did not work alone at this practice, either, so a lot of that other work was carried out by other medical staffers, including other doctors.

Now, most doctors might not have such a high rate of asbestos patients, but this particular doctor had an arrangement with local labor unions to conduct screenings for workers.

The defense attempts to discredit doctors are feeble at most, and they reveal a level of desperation – particularly when the firm has made no effort to further scrutinize the medical records produced by that doctor and available at their disposal.
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In a recent interview with The New York Times, the director of the Occupational Safety & Health Administration, David Michaels, was quoted as saying, “I’m the first to admit this is broken.”

Our Boston mesothelioma lawyers understand he was referring to the agency’s record with regard to handling workplace health threats – specifically those longer-term, silent killers, such as asbestos.

The article’s primary focus was on an adhesive chemical called n-propyl bromide, or nPB, which is widely used today in certain manufacturing plants. However, numerous references were made to asbestos, and how the lessons of this material should not be forgotten. As companies seek materials and products that are affordable and effective, they should not lose sight of worker safety, as so many makers of asbestos-laden products have done over the years.

Part of the problem with asbestos is not even so much that it was being used, but that workers weren’t warned about the dangers associated with it. And they weren’t given proper materials, such as heavy duty respirators and protective suits, in order to shield themselves and their loved ones from harm.

Michaels was quick to admit that OSHA devotes a great deal of its funding and focus to respond to dangers that are clear and present. Things like workplace falls, trench collapses or electrocution.

But while the agency has drawn up some 24 different pages on regulations relating to stairs and ladders, there are only 16 new standards written in the last 40 years regarding workplace hazards like asbestos, arsenic and lead. While stairs and ladders do pose risk to a number of workers, particularly those in the construction industry, tens of thousands of U.S. workers handle toxic substances every single day – including asbestos, which as of yet is not banned in the U.S.

(You can read more about OSHA’s asbestos standards for the construction industry here.)

Federal statistics show that some 40,000 Americans die before their time every single year from exposure to toxic substances at work. That includes mesothelioma, which is a condition exclusively caused by exposure to asbestos, though it tends to remain latent for decades before a diagnosis is received. By then, most people have between six months to year to live.

By comparison, fewer than 4,000 workers die in mine collapses, explosions and other workplace accidents that grab headlines and government scrutiny.

Economists estimate that these longer-term illnesses cost the U.S. economy some $250 billion every year in lost productivity, medical expenses and disability payments.

And yet, asbestos manufacturers continue to deny liability and responsibility. They continue to attempt to foist the blame onto others, including the lawyers representing those workers who suffered as a result of such negligence and indifference to worker safety.
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A mesothelioma lawsuit by a female plaintiff was recently moved to federal court, following her death two months ago.

Our Boston mesothelioma attorneys understand that the plaintiff alleged that her exposure came from numerous sources, including secondary exposure to her husband’s work clothing and materials from when he worked at two different power plants in the early to mid-1950s. Dust kicked up during a home renovation project was also blamed.

A number of the defendants who were previously named in this particular complaint have already settled.

Although the plaintiff had lived in Florida since 1970, where she died recently in Hospice soon after her mesothelioma diagnosis, the complaint was originally filed in West Virginia because that is where the asbestos exposure is alleged to have taken place.

Part of what is particularly interesting about this case is that it involves a female. This is not something we tend to hear a lot about, and yet women make up a significant portion of mesothelioma victims.

The fact is that while hundreds of thousands of industrial workers, military servicemen and tradesmen were being exposed daily to toxic asbestos fibers, so too where their wives and children. Even though they may not have worked directly with the fiber on a job site, asbestos covered the clothing that the men wore home. When the women began to wash those uniforms, they too were exposed – and it has proven no less deadly.

The other aspect of this case that makes it of special interest is that it highlights the hazards of home renovations. This is key because it’s a danger that continues today, even though asbestos isn’t nearly as widely used in products as it once was. Home renovation projects in structures that contain asbestos are a huge risk because while material left alone may pose little risk, asbestos that is disturbed becomes a major health hazard.

In fact, Massachusetts state law requires homeowners to know whether asbestos is in a structure that is going to be renovated. If present, it must be properly sealed or removed by an experienced abatement team.

Up until the 1970s and 1980s, homeowners might not have realized such extra precaution was necessary. Additionally, so many construction products continued to be made with the material that if the homeowner was carrying out a DIY project, he or she might have endured even more exposure to the deadly fibers.

For homeowners contemplating a renovation, the Environmental Protection Agency warns that you typically can’t tell whether a material contains asbestos just by looking at it. You may want to have a home inspection to be assured of no asbestos, prior to beginning the work or after your home has suffered some type of serious damage.

The EPA further recommends:

• Leave undamaged asbestos-containing materials alone;
• Keep activities to a minimum in areas with damaged material that could contain asbestos;
• Take every precaution to avoid asbestos-containing material;
• Have removal or repair conducted by those qualified and trained to do so;
• Don’t attempt to vacuum, sweep, dust, saw, scrape, sand, drill holes use abrasive brushes or pads to any asbestos material or material that could contain asbestos.

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The Australian government has come up with a remarkable response to the ongoing, deadly public health hazard of asbestos exposure.

Our Boston mesothelioma lawyers know this is in such sharp contrast to what we are seeing here in the United States, where the substance remains legal to purchase and use in manufactured materials – though few agencies still chance it at this point.

According to The Sydney Morning Herald, the government has established an independent body to oversee workplace health, as well as public health and environmental safety with regard to asbestos. It is dubbed the Asbestos Safety and Eradication Agency, and its offices will be fully operational by the beginning of July.

The head of the country’s Workplace Relations agency minced no words in addressing the impact asbestos has had both on Australian workers and the country as a whole. He called it the “worst industrial menace.”

The founding of this agency, he said, is a monumental step in that it puts Australia at the forefront of working to eliminate asbestos-related disease.

Why are we in America so far behind on this?

Recently in Ipswitch near Salem, local crews were tapped for an asbestos abatement project at a shuttered U.S. Air Force antenna-testing base. The facility, reportedly riddled with asbestos, was shuttered two years ago. The private owners of the land are seeking to have the on-site structure demolished.

In Australia, the government has said such abatement measures would be overseen by this central agency, to ensure uniformity and accountability.

How many times do we continue to see contractors or even individuals trying to cut cost corners by not properly conducting asbestos abatement, putting themselves and/or their workers and possibly even the public at risk for exposure? But the laws for asbestos abatement vary from state-to-state, so there is little uniformity with regard to penalties.

One of the first tasks the new federal asbestos agency in Australia intends to do is tackle the issue of illegal dumping and unsafe handling and disposal.

Globally, asbestos-related deaths are expected to peak sometime around 2020. But this is far from the end of this. Given the pervasiveness of this material, it’s not out of the question that children who are not yet born yet will die of asbestos-related diseases.

At least in Australia, it has already been banned for over a decade.

Considering that we have known definitively that mesothelioma is directly linked to asbestos exposure since 1964, this kind of non-response to the issue here in the states is truly abhorrent.

Not only that, but our lawmakers are actually trying to do more to muzzle the victims by pushing legislation that would make it tougher for mesothelioma victims to seek proper compensation.

Average onset of the disease is 64 years-old, though exposure typically happens decades before diagnosis. By the time the disease is identified, it is usually fatal within a matter of months or a few short years.

Mesothelioma is a fatal disease. But it’s also one that is entirely preventable.
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At least 150 current and former employees of Long Island’s Nassau Coliseum have filed a notice of claim, indicating they were exposed to asbestos while working at the stadium and nothing was done to protect them.

Our Boston mesothelioma attorneys understand that the workers claiming unsafe exposure include carpenters, electricians and independent contractors.

This stadium has held a myriad of riveting events, from concerts to hockey and even the circus. It’s been a popular venue for decades. It’s also the home of the New York Islanders.

Yet throughout the walls, in the piping, throughout the electrical system – a deadly material was ever present.

It’s not clear whether the presence of that material posed a significant risk to patrons who attended events there. We do know that no amount of exposure to asbestos is considered safe, which means it’s possible that even inhaling a small amount many years ago could put a person at risk for lung impairments years later. It could also potentially develop into mesothelioma, a fatal form of cancer involving the lining around the lungs.

As it stands so far at least 75 of the former stadium employees have been diagnosed with mesothelioma from their exposure. Several more have lung cancer and many are permanently bound by oxygen tanks.

It’s possible that this particular case could be lumped into a class action lawsuit, in which the plaintiffs will be seeking between $500 million to $1 billion.

Attorneys for some of the plaintiffs in this case have said that they sent a number of samples from the stadium out to three different laboratories. All three labs returned results revealing dangerously high levels of asbestos.

Even those who have yet to be diagnosed with any cancer are, quite understandably, worried sick about the implications not only for themselves, but their families as well.

It’s not uncommon that older structures would use asbestos-laden material. The fact is, asbestos was everywhere throughout the 19th Century – in insulation, flooring, roofing, electrical systems, etc. What is troubling is that the owners of this stadium – in this case, the county – would have had a responsibility to know that their building contained asbestos and that workers would need to be aptly protected from the risk of direct exposure.

State investigators say they have launched an inquiry to determine the danger, if any, to the public. Meanwhile, events continue to be held there.

The U.S. Occupational Safety & Health Administration is also simultaneously conducting its own investigation as well.

County leaders have not denied in the past that the structure contains asbestos. In providing a response to the issue of litigation, the county executive underscored his previous pleas for renovation or demolition, saying it’s the oldest, un-renovated facility in the county.

As it stands, the arena is in trouble. The Islanders ice hockey team are leaving for Brooklyn next year, and the county is scrambling to find a new tenant – or at least some way to pay to keep the arena open. Originally, there was talk of it being downsized and renovated.

But now with the added cost of safe asbestos abatement during the would-be renovation, it might make more sense for the county to shutter the stadium altogether.
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The chair of a subcommittee that had been slated to vote on the Further Asbestos Claim Transparency Act (FACT) has thankfully tabled the matter pending further discussion.

Our Boston mesothelioma attorneys know that this law is the culmination of powerful corporate lobbyists doing everything in their power to try to cut off or mitigate the claims brought against them by those they hurt: dedicated former employees, their wives and children, military veterans and even the general public.

This is their effort to deflect the blame. The fact that a measure that would try so hard to suppress the full scope of their actions should be called an act of “transparency” designed to reduce fraud is an insult to all those who have been devastated by this terminal disease. To call this bill “anti-victim” would be the understatement of the year.

In light of the backlash the measure has received, House Rep. Spencer Bachus (R-Ala.) has decided to postpone a vote on the legislation until members can hear directly from some of those who had been diagnosed with mesothelioma. The move came on the morning a vote was to proceed in the House Subcommittee on Regulatory Reform, Commercial and Antitrust Law.

The move was a bit surprising, given that the rest of the Republican majority members of the committee were insisting the vote be moved forward immediately. Bachus refused to cave in to his own party members’ demands.

It’s possible his motives were merely to save face, as numerous members of the opposing party had pointed out that the measure was supposed to be “for the victims,” and yet, not a single victim had been given the opportunity to testify prior to the vote.

In fact, at the most recent hearing prior to that one, Bachus reportedly highlighted the fact that at least two widows of mesothelioma victims were in the audience. Yet the subcommittee asked to hear from neither of those two women.

Additionally, three other widows had been specifically asked to attend the hearings, though none had been asked to testify. However, on the evening before the vote, when the widows learned the proceedings were rapidly progressing, they sent a rushed letter to the committee chair, chastising the committee members for overlooking them entirely.

They wrote feeling as if they were “invisible people.” The topic of discussion had centered on the very element that stole their husband’s lives and yet, everyone was given a chance to be heard except them. The women wrote that it was “starkly clear” that their experiences, heartache and and stories didn’t matter. It seemed as if their great losses didn’t matter.

Following this plea, they will be given the floor and the vote will be delayed another month. It’s troubling that even in spite of this appeal, so many House members were still eager to move on without hearing them. Before they cast their vote, those elected officials should ask themselves who they are really in that room to represent.
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Manufacturers of asbestos-containing products are gunning hard for bankruptcy case records of other manufacturers – in an effort to bolster their own defense.

Our Boston mesothelioma plaintiff lawyers know that these firms will be scouring these records to find any minute detail that could help them deny responsibility for their role in knowingly exposing workers and the public to this toxic material.

The most recent case came out of Wilmington, Delaware. There, documents in a dozen large asbestos-related bankruptcy cases are going to be unsealed so that Garlock Sealing Technologies LLC will be able to peer into the records of other companies that have previously set up bankruptcy trusts.

Just to offer a bit of background:

Garlock is headquartered in New York, founded back in the late 1880s and was a leading manufacturer of sealing and gasket products – both of which contained asbestos. Those products were primarily used by the rail industry, and thousands of railway workers, mechanics and their family members were sickened by the disease.

Garlock has its own asbestos trust and filed for bankruptcy back in 2010, though the reorganization has not yet been confirmed.

Many companies liable for asbestos-related illnesses, such as mesothelioma, set up trusts as a way to remain solvent while still paying up on the flood of claims that began to roll in by the 1970s. Those claims are expected to peak in the next handful of years.

Garlock alone has paid nearly $1.4 billion in indemnity payments, while insurance has covered roughly $1 billion. As it stands, the firm still has another 10,000 mesothelioma claims pending against it.

And that’s what makes this ruling out of Delaware so significant. What Garlock is after is evidence that plaintiff making claims against it may have also sought payments from other asbestos trusts.

However, to do so is not fraudulent, nor is it illegal. The fact it, many people suffered exposure to asbestos from a variety of different sources. Yes, it might be difficult to pinpoint exactly which one caused the illness. Often, there’s a good chance they all did. But what it doesn’t do is make one company any less liable for the damage they inflicted.

The bankruptcy proceedings had been sealed by a bankruptcy court judge, but that ruling was later reversed by a federal judge in Delaware.

Of course, this ruling comes amid a huge push for what some lawmakers call “transparency” with regard to asbestos trusts and litigation.

This is despite the fact that a Government Accountability Office report last year made it clear that fraud among asbestos plaintiffs was not an issue. They are all sick or dying or have already passed. They and their families are looking for just compensation.

Efforts such as these by Garlock are not an effort for virtuous transparency that would somehow benefit the greater public good. It’s about Garlock making every attempt it can to push back and deny each and every claim that comes its way. They are doing all they can to refuse acceptance of their role in these grave injustices – and their responsibility to fix it.
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The $3 million verdict awarded to the family of a man who died of mesothelioma was reduced by more than $1.3 million after a Kansas judge imposed damage caps, per state law.

Our Boston mesothelioma lawyers know that this is yet another unfortunate example of the effect that tort reform has had on asbestos litigation.

Pushed hard by deep-pocketed companies – including those that manufactured products made with asbestos – tort reform is designed to limit the amount that an injured person can collect from the wrongful party. Advocates frame it as a way to dissuade frivolous lawsuits or outrageously high damages. However, the real impact is that the awards determined to be fair by juries and judges, who have heard all of the facts laid out in detail, are not honored.

In Massachusetts, non-economic damages are capped at $500,000. Non-economic damages would be those not quantifiable, such as negligence or loss of consortium. In other words, it’s not the amount you have or will expect to pay in medical expenses or shoulder for lost wages. It’s the amount of damages you are owed for your pain and suffering.

However, there are exceptions to this cap in Massachusetts when the plaintiff can provide proof that he or she was substantially disfigured or suffered some permanent loss or impairment or when there were some other special circumstances where limiting that award would deprive the plaintiff of just compensation. A strong argument for exception can be made in cases of mesothelioma, a terminal disease with the only known cause being asbestos exposure.

Still, caps continue to be imposed in asbestos cases.

Here, with McCormick v. A.W. Chesterton Company, the plaintiff was a mesothelioma cancer patient, who died after the lawsuit was filed. He had worked for years on a number of boiler systems at an Air Force base in Kansas.

Years later, he was diagnosed with mesothelioma and sued the manufacturer of those boilers, Cleaver Brooks Co., Inc. (later purchased by A.W. Chesterton Company). This was a firm that manufactured and supplied dozens of asbestos-containing boilers that were used on base. Claims against other defendants were dropped.

Co-workers of the plaintiff testified that the defendant inhaled asbestos dust routinely while working to install, repair and replace the boilers.

It was alleged that the manufacturer was well aware of the damages its products posed, yet did nothing to warn users of that. The company, meanwhile, attempted to heap the blame on the Air force and other firms with asbestos-laden products used on the base.

The jury sided with the plaintiff, finding he should be awarded $3 million – $1.5 million for economic damages and another $1.5 million for wrongful death. However, due to tort reform and damage caps, that award was slashed down to $980,000 – $480,000 in economic damages and $500,000 in non-economic damages.

That amount isn’t final, though, as the judge agreed to stay the final judgment to allow the defense time to file additional motions.
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The New York Supreme Court has ruled that a trial court will have to determine whether an asbestos defendant purposely structured a $1 billion settlement in order to force its reinsurers to cover a disproportionate share.

Our Boston mesothelioma plaintiff lawyers know that the case, United States Fidelity & Guaranty Company vs. American Re-Insurance Co., is noteworthy and closely watched by virtue of the fact that it is one of the longest-running, most complex litigation actions in asbestos claim history – and also because of the high sums involved.

It’s a question of the degree to which an insurance company contracted with a firm later found negligent in asbestos exposure litigation can recoup losses from its reinsurers, or the firms that buy policies from original insurers as a risk management strategy.

In most cases, asbestos plaintiffs file suit directly against the company itself. If the plaintiff wins and damages are awarded, the firm must pay. But the firm can then turn and file suit against the insurance company to help mitigate the cost. The insurance company, in turn, goes after its reinsurers.

Ultimately, spreading out the cost doesn’t really impact the original plaintiff, and it may even prevent the company from filing bankruptcy, thereby extending its ability to continue to pay out future claims.

Of course, reinsurance companies are fighting back vigorously, as most did not anticipate the sheer volume of asbestos litigation that these firms would be facing when they first wrote the policies decades ago.

On that front, at least, the insurance companies may not have a strong argument. In this case, an appellate court last year affirmed the reinsurance companies’ responsibility to cover nearly half of the $1 billion settlement, about $420 million, upholding a 2010 ruling by a lower court. The justices found that reinsurance companies were bound by a doctrine called, “follow the fortunes,” which essentially means that reinsurance firms legally take on some of the burdens of insurance companies with which they are contracted.

In this situation, the insurance company first wrote a policy in 1948 for a company that was then known as Western Asbestos Co., later renamed Western MacArthur and purchased by Travelers Co. Then in the 1970s, people began to sue for damages for negligent asbestos exposure. Ultimately, Travelers paid out $1 billion to cover those claims. But then in 1993, the company filed suit against three of its insurance companies. A settlement was reached in 2002 and Western MacArthur filed for bankruptcy as a result. But now, the firm’s insurance companies are after the reinsurers to recoup a big portion of their losses.

Reinsurance companies are responsible, the court found, but the question now is whether the initial insurance firms wrote the original $1 billion settlement in such a way that it unfairly placed a heavy burden on the resinsurers. The allegation from the reinsurers is that the firm intentionally lowered the value of certain claims and inflated the value of others in order to increase the amount that the resinsurance firms would have to pay.

The state supreme court, finding there was no matter of law to be decided, ruled that the question of whether those allegations are true will have to be answered in a trial, if the firms don’t independently reach a settlement.
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