Articles Posted in Boston Mesothelioma

Following Ohio’s passage of an asbestos claim “transparency” bill, requiring those claiming illness due to asbestos to disclose all current and previous defendants, Mississippi is now jumping on the bandwagon.

Our Boston mesothelioma lawyers are troubled by this trend, as it is being pushed by asbestos defendants in an effort to limit individual liability. The fact that these bills are being characterized as a way to increase “transparency” is unfortunate and misleading. In reality, the ultimate aim here is to disenfranchise mesothelioma sufferers and force them to jump through more hoops in order to obtain the compensation they are rightfully owed.

Further, this is not something only Ohio and Mississippi claimants should be concerned with. In addition to the fact that other state legislatures may be considering similar measures, a federal law was proposed last year. HR 4369 (112th), the Furthering Asbestos Claim Transparency Act of 2012, would have amended Title 11 of the U.S. Code by requiring public disclosure of asbestos trusts, established by section 524(g), to file quarterly reports with detailed information regarding all asbestos injury claims, to federal authorities. Again, the purpose is to limit a plaintiff’s ability to collect damages from multiple sources. However, we are well aware, many of our clients were indeed exposed to asbestos by multiple sources, and as such, have a right to claim damages from each. HR 4369 died in committee.

The Mississippi bill, HB 529, would mandate that anyone filing an asbestos-related claim provide a sworn statement detailing all existing claims made either by them or on behalf of them. Those statements would have to include any and all material pertaining to those claims and would have to be disclosed within a month of the discovery phase of the case. If subsequent claims are made after that time, the plaintiff would have a month to disclose those as well. If the defendant found there to be any conflicting information (as it no doubt will, given the common defense propensity to throw up any possible roadblock to drag out the process), it would have 75 days in which to request a halt to the proceedings. And that’s not all. If a claimant files a claim with an asbestos trust after a judgment has already been found in another case, the court would actually be allowed to re-open the original case and reduce the damages awarded.

If it is passed, the measure would be applicable to all filings after July 1 and any that are pending but haven’t yet proceeded to trial.

The U.S. Government Accountability Office estimates there are some 8,500 firms that are or have been defendants in asbestos cases. Currently, trusts have amassed about $40 billion in assets to pay out these claims. Mississippi legislators say too many are being unfairly penalized by plaintiffs who file claims against multiple firms.

However, we would posit that asbestos claimants deserve compensation from each of the companies that knowingly and negligently exposed people to this deadly substance. The relevance of other exposures channels is limited.
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Efforts by court administrators to reduce the number of out-of-state mesothelioma cases being filed there have reportedly been successful – which is not great news for potential plaintiffs here in Boston.

Our Boston mesothelioma attorneys know that effective changes made to Philadelphia Court of Common Pleas actually took place last year. However, we are just now learning about the chilling impact.

First, some background:

There were actually multiple reasons why Philadelphia was such a hub for cases of asbestos litigation.

For starters, it is in this location where hundreds of thousands of soldiers have served over the years in the Philadelphia Naval Shipyard. It was actually the first naval shipyard in the country. The site is now home to a booming industrial complex. But for years, it was a site were countless workers were exposed to inordinate amounts of asbestos – the material containing fibers that cause mesothelioma.

This alone makes it unsurprising that many mesothelioma lawsuits were later filed there.

Secondly, it is no secret that the city had become known for high jury awards in cases where plaintiffs were successful. But this was only part of it. The fact is, mesothelioma cases were far more likely to actually be heard than in many other parts of the country. The city was renowned for its effective handling of mass tort cases through the creation of the Complex Litigation Center.

This was a separate court system founded in the early 1990s and equipped to handle a flood of incoming asbestos litigation. The general idea had been that having a separate division of the court, staffed with its own full-time judges familiar with the complex legal issues and complicated science that consumed these cases, would be far more effective.

And they were right. The court was renowned nationwide for its phenomenal ability to process a large number of highly technical cases through the system quickly and efficiently. It worked so well that the Complex Litigation Center began taking on the influx of pharmaceutical cases as well.

So it’s no wonder out-of-state attorneys sought to have their cases heard there – in hopes they might actually be heard. But the local courts contended they were being overburdened. As such, a number of changes were made.

Among those changes, punitive damages in mesothelioma cases are automatically deferred. For a while, all discovery in mesothelioma cases was required to actually take place in Philadelphia – a clear deterrence to out-of-state lawyers – though that requirement has since been reversed. And finally, asbestos cases were consolidated into groups of eight with similar medical issues, with only three in each group at any given time allowed to proceed at trial. It’s expected the rest will then either be settled or regrouped for a later trial date.

Court administrators note that these changes have resulted in a reduction of mass tort filings in the area from nearly 2,700 in 2011 to about 815 last year.

What our Boston mesothelioma legal team wants to ensure our clients recognize that such measures won’t deter us from filing out-of-state if we feel that is in the best interest of the client and/or the case. We also want to assure those with legitimate mesothelioma claims that you and your family ARE entitled to compensation, and that we are fully committed to helping you obtain it, regardless of the hurdles laid before us.
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The Supreme Court of Virginia has ruled that a legal error by a judge in a mesothelioma trial means the case will have to be retried.

Our Boston mesothelioma attorneys believe in the importance of closely following such litigation across the country because it allows us to sharpen our own strategy and avoid similar potential pitfalls.

In this case, Minton v. Exxon Mobil, the court justices ruled 5-2 that the circuit court judge erred by barring evidence revealing a shipbuilding company had for years been aware of the dangers of asbestos and yet failed to take cautions to warn or protect workers. This was important because the company that was being sued, Exxon Mobile, contended that even though its ships, which were regularly repaired at the shipyard, contained asbestos, it could not be held liable to the extent that it was because it was the shipbuilding company – the plaintiff’s employer – that bore the lion’s share of responsibility for protecting and warning workers.

The circuit court judge, however, deemed this fact irrelevant and forbid Exxon from arguing it at trial. Subsequently, a jury sided with the plaintiff, awarding him $17.5 million. But Exxon appealed. Now, the supreme court has ruled a different outcome might have been reached had Exxon been allowed to present this evidence.The plaintiff is now deceased, and now his widow must contend with the ordeal of a second trial.

According to court documents, the plaintiff worked at the shipyard for 37 years, starting in 1956 and ending in 1993. Eleven years of that time was spent as a repair supervisor. There was asbestos, asbestos-containing materials and asbestos dust all over the grounds, to which the plaintiff was regularly exposed. But he never contended Exxon was responsible for this.

What he alleged was that during the years that Exxon frequently brought some 200 ships to the yard for repairs (1966 through 1977), the plaintiff was in charge of inspections of those vessels. In the course of those inspections, he was exposed to a large amount of asbestos present in the ships’ boiler rooms, engine rooms and other compartments. Exxon was aware of the dangers this exposure meant, the plaintiff said, and yet provided no protective materials and didn’t even warn workers about the danger.

Specifically, the plaintiff sued Exxon under the federal Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. 905(b). This act requires that ship owners must use “ordinary care” in the maintenance of their ship and its equipment in order that experienced workers can safely unload and load cargo. If a vessel owner’s negligence causes a worker injury, that person or company may be liable for damages.

When Exxon appealed, they did so based on numerous points of law. While the court did agree with the oil company on this critical judicial error, the court rejected the following arguments:

• That there was insufficient evidence to show Exxon actively controlled the activities/materials on its boats. The plaintiff was able to sufficiently show that even though asbestos substitutes were available as early as 1971 – specifically because of the known hazards – Exxon chose to continue to use the product anyway.
• That the plaintiff failed to prove Exxon had a duty to warn because it wasn’t proven that Exxon knew about the danger – only that it should have known. The court found this simply false, saying evidence was ample indicating that Exxon had actual knowledge of the dangers, and yet continued to use asbestos anyway.
• That the level of asbestos exposure attributable to Exxon’s ships was not necessarily enough to have caused the plaintiff’s mesothelioma and that his illness was more probably attributed to early exposure. The court ruled that there was sufficient evidence for a jury to conclude that the plaintiff’s exposure to asbestos on Exxon ships was substantial enough that it could easily have been a contributing factor in his mesothelioma.

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The Environmental Protection Agency and its local affiliates have a host of laws to ensure workers who handle, remove or transport asbestos are safe in the process.

Our Boston mesothelioma attorneys know these kinds of protections came only after years of complaints and scores of deaths directly caused by the fiber.

But now, legislation introduced by Democrat Bill Owens of New York could undermine such progress. H.R. 204, which was presented to Congress on Jan. 4, 2013, would allow the EPA to waive any asbestos standard or requirement under section 112 of the Clean Air Act (42 U.S.C. 7412) with regard to demolition of renovation of a building that has been condemned when there is a reasonable belief that the building may collapse. It’s called, “The Common Sense Waiver Act.”

On his official House of Representatives website, Owns said he was moved to action after, in 2011, he was contacted by local officials in a small village regarding an old restaurant that had fallen into disrepair. The legal owner of the structure had long since gone and could not be located. The leaders wanted to tear it down, as it seemed near collapse, but they could not afford to do so because of the high cost of the asbestos abatement required by the EPA.

On one hand, we can understand where Owens is coming from. If an asbestos-laden building has been abandoned by its owner and ends up collapsing, the dust this could cause might pose a health hazard to the public at-large.

Owens reasons that owners abandon these structures for the same reason local governments have trouble tackling them: It’s expensive. Asbestos abatement, when you follow all the EPA’s rules, can be time-consuming, tedious and costly. So these structures are left to essentially deteriorate.

However, workers safety shouldn’t be compromised under any circumstances. Owens contends that asbestos abatement, in these situations, needn’t be carried out by an experienced, licensed contractor. He goes on to say to a local reporter that while he “hopes” workers will appropriately wrap the material and take it to a proper disposal site, his bill would not make it a requirement.

Everyone from public officials to contractors has said this is a terrible idea. One solid waste department official said that while such work can be cost-prohibitive, the health risks that are incurred by those who handle asbestos are far too great to take chances by bending EPA requirements.

Asbestos abatement contractors said flat-out it would be bad – and not so much for the purposes of their livelihood but for the safety risks that workers would face. Asbestos is a known cancer-causing material. To let just anyone in to start tearing down walls could prove disastrous – not only for the workers, but for the public if the asbestos is not properly handled and safely disposed.

The Common Sense Waiver Act has thus far not gained a great deal of support among Owens’ colleagues. We think that may be a good thing.
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It’s logical that companies trying to settle a large number of mesothelioma claims are going to argue for the least possible payout.

But our Boston mesothelioma lawyers know that such offers fall far short when you calculate the sheer number of people sickened and the devastating impact that this lung disease has on those affected.

In a federal bankruptcy court in Pittsburgh, a judge is sifting through a weeks’ worth of testimony – 17 hours from each side – to close the gap in the disparity of how much both sides think proven and legitimate victims should get now and in the future.

It’s called an estimation hearing, and it stems from a Chapter 11 bankruptcy petition filed three years ago by three companies that specialized in making an asbestos-containing joint compound for at-home projects and renovations. In all, the companies were facing down some 15,000 claims of liability from people who said they suffered illness after using these products. Nearly 3,000 of those claims were from people who had developed mesothelioma. Others developed chronic lung ailments, such as asbestosis.

Filing for bankruptcy allows these companies to insulate themselves from a barrage of lawsuits. But they don’t get to simply walk away. They have to establish what is known as a 524(g) trust fund, from which future claims meeting certain criteria can be filed and paid.

The American Bar Association reports that in 2011, there were 56 asbestos trusts paying out hundreds of millions of dollars in claims annually, with the number of claims and the amount of reward steadily increasing each year. It’s estimated that the total assets of these trusts is right now somewhere in the neighborhood of $35 to $60 billion – and growing.

A recent study by the A.M. Best ratings firm calculated that the entire industry could be expected to shell out approximately $85 billion in asbestos cases when all is said and done.

At issue here is that the defendants claim they’ve essentially already had to pay more than is reasonable. Nearly 15 years ago, when a flood of mesothelioma claims began to be filed, many companies chose to file bankruptcy and create trusts. These companies did not.

As a result, in certain districts that employ methods of liability known as joint and several, the businesses that had not filed bankruptcy but were sued alongside those that had were stuck paying the whole amount of damages in civil cases they had lost. In other words, they had paid for the liability of other companies, as well as their own.

So now, they are attempting to argue that they shouldn’t have to set aside as much as other firms have in the past.

Additionally, they are trying to argue that the type of asbestos they used, called Chrysotile asbestos, isn’t as deadly as other forms (despite ample evidence to the contrary). Another aspect of their argument is that the number of pending claims when compared to their market share doesn’t add up. In other words, they say it’s improbable that so many people got so sick using their product just a few times.

This last argument is sometimes known as the “safe exposure” theory, which purports that the level of your sickness is relative to how much asbestos you came in contact with. However, as the federal Occupational Health and Safety Administration has repeatedly pointed out, there is no safe level of exposure when it comes to asbestos.
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Insurance companies are pleading with justices in the U.S. Supreme Court to consider forcing class action cases to federal court, arguing that plaintiff lawyers artificially lower the monetary amount sought in order to keep the cases in the more claimant-friendly state courts, versus the more business-friendly federal courts.

Our Boston mesothelioma lawyers know that a decision probably won’t have a major impact on asbestos litigation, as most of the recent cases filed are done on an individual basis.

It wasn’t always so. A little history: Back in the early 1990s, when an overwhelming number of asbestos lawsuits were first being filed, judges began to recognize the difficulty that would result from trying to manage them all. In 1991, federal asbestos cases were all consolidated into one that would be heard in the U.S. District Court for the Eastern District of Pennsylvania. Soon after those cases were transferred, the Center for Claims Resolution, comprised of a group of asbestos manufacturers, worked closely with plaintiff lawyers to certify a class and propose a settlement. They were successful, and the settlement became known as the Georgine v. Amchem Prods., Inc.

This decision involved the establishment of a priority system of handling claims – unimpaired plaintiffs versus impaired plaintiffs (or those who had been diagnosed with mesothelioma and those who had not yet). It then set up a tier system for payouts.

However, the U.S. Supreme Court later broke up the class, saying it was too large and involved too many varied interests. Plaintiffs’ common points of fact were too few, the court found.

Since then, federal courts haven’t tended to favor class action with asbestos cases. There was another attempt in 1999 with Ortiz v. Fibreboard Corp., but the high court again declined to certify the class.

Asbestos class actions do exist, but anyone who joins one should carefully weigh their options with a private mesothelioma attorney first, as your case may be strong enough to warrant a much larger amount of compensation than you would receive by jointing a class.

The current case before the court involves a practice that the insurance companies claim is common: the artificial limitation of class members and damages sought in order to keep the case in state courts. A federal law passed in 2005 indicates that any class action over $5 million is automatically forwarded to federal courts, but anything under that can remain in the state’s jurisdiction. In some cases, attorneys for the insurance firms argue, attorneys are getting around the current law by filing multiple class action cases in different districts, each under $5 million.

Insurance lawyers say that this strategy prolongs litigation unnecessarily and makes the potential payout so high that it forces them to settle, even in cases that may not be as strong.

Still, moving all class action cases to federal court then puts plaintiffs at a potentially unfair disadvantage.

A decision by the Supreme Court justices on this matter is expected by spring.
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The Lowell Housing Authority has agreed to pay for asbestos poisoning tests for its maintenance workers, who it’s believed were exposed to the deadly fibers through improper handling in the course of a renovation project.

Our Boston mesothelioma attorneys understand that the decision came following months of concern by union members representing the workers, after asbestos was found in at least one of the areas where work was ongoing.

The Lowell Sun reports that the union president said the idea was born after an environmental consultant was called in to figure out the level of asbestos present during all major projects. That was months after city council raised concerns about whether the agency failed to properly handle the disposal of asbestos during updates to North Common Village, a four-year project that was completed in 2011.

Asbestos was located by the consultant in the second layer of floor tile in the structure during testing conducted over the summer. Many of the workers subsequently – and rightfully – became worried about their exposure to the asbestos.

When the material is airborne, the fibers become caught in the lung tissue, causing scar tissue that over time will develop into mesothelioma.

The housing authority director said the testing proposal includes awareness measures to inform all eligible members of the testing availability. Additionally, those measures would include the recommendation that those who had worked at the agency the longest make testing a priority, as a large number of the buildings owned by the authority were full of asbestos. A fair amount still remains, he said.

He went on to say that the testing should “put their mind at ease,” as many of the older workers had been working with asbestos-laden materials for years.

We would add that one round of testing may not be enough. Mesothelioma takes years, often decades, to develop after exposure. Often, there is little indication that a person is sick until many decades later. By then, the disease is aggressive, and typically fatal within a few years.

The union, for its part, says it is satisfied that the authority has agreed to specific testing times and is offering to pay for it. In addition to testing for asbestos exposure, workers can also be tested for exposure to lead from the paint and other harmful materials they may have encountered in the course of their work.

Approximately 50 workers are eligible for the testing.

Additionally, the board is contracting with an asbestos removal company for nearly $60,000 to seal off underground pipes that contain the material. While the board was praised for being proactive, it seems to us they failed in that regard, and that similar action should have been taken much sooner during previous renovation projects.

Our Boston mesothelioma lawyers want to make sure that those workers who end up contracting an asbestos-related illness understand they may be entitled to financial compensation. Those individuals should meet with a qualified and experienced mesothelioma attorney upon diagnosis.
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You have to hand it to asbestos defendants battling against claims of liability for mesothelioma: They will deny liability to the point of absurdity in an effort to avoid paying damages to those they have harmed.

Our Boston mesothelioma lawyers understand that most recently, a consortium of companies in the midst of Chapter 11 bankruptcies due to thousands of pending mesothelioma claims is now attempting to raise doubt about their liability.

We know that asbestos is the direct and only known cause of mesothelioma. This is a fact. However, these companies – Bondex International Inc., RPM International Inc. and Specialty Products Holding Corp. – are attempting to raise doubts about whether the compound they used, called Chrysotile asbestos, is as harmful as regular asbestos.

The argument was raised at an estimation trial in Pittsburgh, where the bankruptcy judge is attempting to determine how much money the companies should be made to set aside for current and future mesothelioma claims. The establishment of bankruptcy trusts is a common way that larger companies at the center of hundreds or thousands of asbestos lawsuits can continue to operate without having to contend day-to-day with potentially decades of litigation and associated costs.

Chrysotile asbestos, sometimes referred to as “white asbestos,” accounts for about 95 percent of the asbestos that’s currently in place in the U.S. Last year, the Department of Population Health Sciences in the School of Medicine and Public Health at the University of Wisconsin conducted an extensive study on Chrysotile mesothelioma, amid numerous claims that it doesn’t actually cause pleural or peritoneal mesothelioma. The researchers concluded that Chrysotile asbestos – along with all other forms of asbestos – has caused mesothelioma. The scientists went on to say that a worldwide ban is necessary in order to halt the epidemic of mesothelioma.

And yet, a Canadian epidemiologist was brought to testify on behalf of the defendants in this bankruptcy proceeding that Chrysotile asbestos is “much less likely” to cause mesothelioma and that this product alone doesn’t lead to mesothelioma. He testified in fact that it “hardly ever” leads to mesothelioma deaths.

Not only is this blatantly wrong, it makes no sense. If 95 percent of the asbestos used over the last 50 years was not dangerous and didn’t cause mesothelioma, we wouldn’t be seeing cases reported in such high volume.

It’s noteworthy, though, that the doctor testified he had only reviewed a small sampling of the claims against the companies and even in those cases, he wasn’t given access to examine the actual lung samples to presumably say that something other than Chrysotile asbestos caused their mesothelioma.

The doctor said that while he had never conducted or published a study on the matter, he said he came to his conclusion with several decades of “practical applicability.” He went on to say that published academics sometimes get it wrong, and may be no more reliable than any other researcher.

We might beg to differ.

It’s a weak argument, at best, and an outright fabrication at worst. We hope the bankruptcy judge will see through the ruse.
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Our Boston mesothelioma lawyers were disappointed to hear about the conviction of a doctor in West Virginia and two attorneys from Pennsylvania on charges of falsifying information in asbestos lawsuits – of which they had filed thousands.

Defendant asbestos lawyers have, of course, seized on this case as evidence of some wider problem with asbestos-related claims.

However, the truth of the matter is that the overwhelming majority of mesothelioma claims are legitimate. It’s incredibly upsetting that the alleged irresponsible actions of a few individuals will reflect poorly on so many legitimate victims. Nor is it in any way an accurate reflection of the deep commitment we personally hold for obtaining justice and compensation for our clients who were legitimately wronged.

What this will mean moving forward is that claims of asbestos-related injury may endure a higher level of scrutiny.

This makes it even more critical for mesothelioma patients and their families to put their trust in a law firm with proven experience and dedication to an accurate and thorough pretrial investigation. We take the time to analyze every aspect of your case in advance of trial. We can anticipate the tactics and angles of the defense – because we’ve been there so many times. We work to make sure you’re well-prepared for depositions, as well as trial. We know what to expect, and we know how to win – the right way.

In this case, the jury found this kind of diligence did not take place, though the men convicted say the jury got it wrong.

According to The Associated Press, the law firm filed an estimated 14,000 asbestos cases against CSX Transportation, a Florida-based company, on behalf of supposed victims, whom this one doctor diagnosed.

It was the radiologist who first came under fire in 2005, when a judge in Texas heard reportedly questionable testimony from the doctor regarding a patient with a lung disease called silicosis. Then the next year, CSX Transportation filed a lawsuit against the doctor and the Pennsylvania lawyers, saying hundreds had been falsely diagnosed with asbestosis, their cases taken to trial. (This is a lung disease which, like mesothelioma, is caused by breathing in asbestos fibers. Asbestos tends to be more of a chronic condition, while mesothelioma is acute and quickly fatal.)

At trial, CSX argued that the radiologist had initially found hundreds of patients to be free of asbestosis. However, the doctor had later changed his diagnoses in those cases. While CSX couldn’t present each of those claims in court, it did highlight its case with 11 instances.

The Pennsylvania lawyers, however, countered that CSX was only able to show that 11 out cases out of 14,000 had no reasonable basis. Other witnesses testified on behalf of the attorneys and doctor, saying that even in those 11 cases, x-rays were consistent with asbestosis.

However, the jury still found the attorneys and doctor guilty of conspiring to fabricate claims and civil racketeering. They have been ordered to pay at least $430,000, though that fine could be tripled, due to the racketeering charge.
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Once again, a company is in trouble for violating environmental laws designed to protect workers and the public from asbestos exposure.

While our Boston mesothelioma lawyers focus primarily on cases in which individuals have already been diagnosed with asbestos-borne cancers, we believe it’s important to highlight the fact that abuses are still ongoing.

We have heard arguments from some who say that the payouts in mesothelioma cases are too high or that there are far too many cases in general. However, situations like this illustrate why we will likely be seeing mesothelioma litigation cases filed for years to come. It has to do with companies failing to take proper – and lawful – precautions to protect workers, consumers and the public.

In this case, as reported by The Cordova Times in Alaska, a copper company was charged and eventually convicted with violation of federal environmental laws – specifically, the Clean Air Act – for its release of friable asbestos into the air at a property in the downtown area of the capitol, Anchorage.

The chief district court judge overseeing the case sentenced the company to three years of probation and payment of a $70,000 fine. Additionally, the company was ordered to hire an environmental consultant full-time to help make sure that no further violations take place.

According to the newspaper, the copper company owns and manages several buildings downtown – a cluster of which it purchased in 2009. At the time, the company was aware of the fact that these properties contained asbestos throughout – in the floors, ceilings and walls. Further, the company knew that certain precautions were required for handling and disposal would be required in order for them to be demolished or renovated.

Despite having this knowledge, the company moved forward with demolition of one building and renovation of another. They took no steps to hire a specialized asbestos abatement company, and perhaps even worse, the employees asked to do the work had no idea that there was asbestos in the building or that they were being exposed to a deadly hazard. These workers, who had zero training in removing asbestos and were not given personal protective gear, were placed in imminent danger of serious bodily injury.

The truly sad part is those workers will likely not know for many more years whether their exposure to the airborne asbestos has made them sick, as mesothelioma and asbestosis take years to manifest.

Similar cases in Massachusetts abound. As we recently reported in our Boston Mesothelioma Lawyers’ Blog, last month a Boston lobster company was fined $100,000 for failure to properly handle asbestos during numerous projects.

The U.S. Clean Air Act, as defined in U.S. Code Tittle 42, Chapter 85, requires that companies take certain precautions when conducting renovation or demolition projects on structures containing asbestos, as well as with regard to disposal of the material.
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