Articles Posted in Mesothelioma Case

Our Boston mesothelioma lawyers have become familiar with a range of under-handed legal tactics used by asbestos defendants.

These involve obvious efforts to delay, skirt the primary issue or deny.

Even when these motives are so obviously transparent, they require the plaintiff’s attorney to be dexterous in eliminating such strategies.

The most recent attempt has been the fraud allegations that Garlock Seals Technologies has lobbed against a Texas mesothelioma law firm. The company’s claims are in fact so egregious that an organized group of personal injury attorneys are petitioning the judge in the case to allow them to intervene, stating such claims are not based in fact, but rather a calculated strategy as the company moves through the bankruptcy process.

The fact is, companies know that they have played a role in both employees and consumers contracting the aggressive and terminal cancer known as mesothelioma, which strikes those who have been exposed to asbestos. They also know that their negligence is likely to be very costly to them. It’s less expensive to drag the cases out for years and make spurious claims.

In this case, Garlock is alleging that the mesothelioma attorney has made repeatedly inconsistent claims about the origin of their client’s mesothelioma.

First, it’s worth noting that the prevalence of asbestos in a large variety of products often makes it difficult to pinpoint exactly which exposure resulted in illness. That’s why plaintiff attorneys will look extensively at a person’s work history and background, as it is often the result of some exposure during employment. But this is also why you will often see more than one defendant in these cases. Often, multiple companies may be responsible for exposure.

The personal injury lawyer organization contends that Garlock has made a host of similar claims since it entered bankruptcy proceedings in 2010. Garlock is one of 60 companies to be compelled to establish a bankruptcy trust as a result of mesothelioma litigation.

The fraud allegations, the group contends, have a clear bearing on the issues Garlock is litigating; namely, how much the company will have to set aside in its bankruptcy trust.

In the case in question, the plaintiff was a man who had worked at a company that sold asbestos-containing gaskets and other parts back in the 1960s. The plaintiff lawyers allege that the illness was caused by crocidolite, a rare kind of asbestos that is derived solely from Garlock products. However, Garlock claims the plaintiff attorneys were pursuing a similar claim against another company at the same time. It further contends it was roped into larger settlement than it would have paid had it been allowed to separate itself from the other defendants. (In Texas, juries are allowed to allocate a percentage of liabilities to third-parties.)

A judge has set the next hearing for the case for Oct. 11.
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The widow of a Navy veteran who died due to complications from mesothelioma has had her $2 million award for pain and suffering reinstated by a state supreme court.

Boston mesothelioma lawyers were pleased to hear the action taken by justices with the Virginia Supreme Court regarding the amount owed to the retired seaman’s widow.

The reason this case was so closely watched by mesothelioma attorneys is that the victim, who passed away before trial, had sued under general maritime law. He had alleged that he was exposed to asbestos fibers, dust and particles that were in products manufactured by John Crane Inc., as well as nearly two dozen other defendants.

When the plaintiff passed away, the lawsuit was refiled by the widow, as executor of her husband’s estate, as a wrongful death action.

The majority of the defendants chose to settle with her, rather than go to trial. But John Crane Inc. fought back.

Before the trial even started, JCI filed a motion in limine that would have excluded all evidence of nonpecuniary damages. These are damages that are outside the scope of monetary damages. In other words, evidence of pain and suffering, loss of consortium, etc., would not be allowed to be heard at trial.

The company’s motion was denied by the City of Newport News’ Circuit Court.

Eventually, JCI and the widow agreed to a jury instruction that would divide the cost of damages among Garlock, Crane Company and JCI. (The other two companies, which had settled prior to the trial, manufactured the asbestos-laden valves and gaskets.)

The jury awarded the widow approximately $6 million, with 50 percent of that to be paid by JCI. That verdict included $2 million for pain and suffering, as well as $2.5 million for the loss of her husband’s services and income, another $320,000 for medical expenses and about $8,000 for funeral expenses.

But after the verdict, the company appealed, contending that the widow’s own liability theory was based on the fact that her husband had been exposed to the asbestos fibers while on board Navy ships, which were traveling at sea or docked in foreign ports. As such, they contended she would have only been entitled to damages under the Death on the High Seas Act, which is spelled out in 46 U.S.C. Sec. 3031. This act says that when the death of an individual is caused by a wrongful act or default that occurs on the high seas, defined as 3 nautical miles form the U.S. shore, a personal representative of the family may bring civil action against the person or vessel responsible. Part of what that law also says is that this general maritime law limits an award to monetary (or pecuniary) damages.

The case made it all the way to the Virginia Supreme Court, where it vacated the $3 million award that JCI was responsible. However, the widow then asked for a re-order, and the judges agreed to reinstate $2 million of that for her pain and suffering.

The justices cited the Jones Act, which holds that a seaman (or his representative) may seek recovery of losses or pain and suffering sustained during his lifetime. So essentially, the widow was granted the award based on her husband’s pre-death pain and suffering.
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A recent mesothelioma case out of Washington state raises an interesting question with regard to responsibility: Can a company that manufacturers respirators designed to protect against asbestos be held liable when someone gets sick?

Boston mesothelioma lawyers know there are a lot of companies that knowingly manufactured products containing asbestos and for years, exposed their workers to the airborne particles that cause this deadly cancer.

This case was unique not only in the question it posed, but in the fact that exposure reportedly occurred in the 1980s, 1990s and 2000s, when the dangers of asbestos were fairly well-established to the public.

So can a respirator company be held liable? In short, yes. But it’s important to note that Macias v. Saberhagen Holdings, Inc. came with a very specific set of circumstances that made victory possible.

Here’s what happened:

The plaintiff since the 1980s had been employed in a shipyard in Washington state. He was a tool keeper, and part of his job required that he maintain the respirators that the other workers used to filter out any contaminants while on the job.

Those contaminants included asbestos.

The workers would then return those respirators to the tool room where Leo Macias worked. Macias was responsible for cleaning out the respirators by replacing the filter cartridges in the masks.

Macias said that when he would go to swap the filters on the respirators, he would toss the filters into a nearby basket, causing what he described as a “little poof” of dust.

Additionally, when the basket was full, he said there was dust, sand and dirt everywhere.

This was done over and over again for a number of years. He was employed at the company from 1978 until 2004. It was at the tail end of his career that he was diagnosed with mesothelioma.

His complaint maintains that not only was the shipyard liable for its failure to take more stringent measures to protect him, but that also the respirator company was responsible because it had failed to instruct anyone cleaning the masks on the dangers of doing so without themselves wearing protection.

The respirator manufacturers moved for a summary judgment in the case, saying they were under no obligation to warn workers about how to safely clean the devices. The trial court denied that motion.

However, the case was then appealed, with the Court of Appeals ruling that state law in Washington didn’t provide a basis upon which to find the respirator manufacturers liable because they hadn’t made the dangerous product.

But when the case made it to the Supreme Court of the State of Washington, justices reversed that ruling. They held that while a manufacturer generally doesn’t have a responsibility to warn consumers about the dangers of products that they do not make, supply or sell, this was different. This case involved the duty to warn with regard to the danger of asbestos exposure inherent when using and maintaining the respirators – which were the products’ sole purpose.
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In some ways, a mesothelioma diagnosis can be worse than a gunshot wound.

For one thing, a bullet wound is quick.

You are able to tell right away exactly where it is and what it is. Plus, being shot isn’t necessarily a death sentence.

Our Boston mesothelioma attorneys know that mesothelioma is the opposite of all these things, as one California gun shop owner is learning.

According to a report in the Tracy Press, the businessman began getting sick several years ago. He was experiencing a tightness in his chest and breathing problems. He suspected it might be mold in his older office building.

But when inspectors were called to look, they weren’t able to find anything.

It wasn’t until later that he determined that asbestos was present in the building. That in and of itself might not have been enough to cause alarm, but it was determined to have been airborne – the element that makes the compound deadly.

The shop owner later said he suspected that the substance may have been kicked up during a burglary a decade ago. That’s when a pair of thieves reportedly sliced into the roof and ceiling – and through the asbestos-laden ceiling tiles – to get to the guns.

It was later determined that the building’s wallboard and joint taping compound also contained asbestos.

Doctors told him that this was likely the cause of his “mysterious” illness, and he needed to vacate the premises immediately.

Asbestos was used in a large number of manufacturing products up through the 1970s. It was particularly favored for insulation and other building materials because of its flame-retardant properties.

However, the companies that manufactured these products knew more often than not that the asbestos was harmful, both to workers and potentially consumers.

It’s common to find asbestos in older homes or structures. It’s not necessarily inherently dangerous in and of itself. The problem is when those particles are disturbed and become airborne. That can happen either during renovations, or demolitions – or burglars cutting through the roof.

The entrepreneur closed shop immediately after doctors discovered abnormalities in his lungs, though it has yet to be determined whether the ailments are mesothelioma. If in fact it is mesothelioma caused by exposure to asbestos from that burglary, it could be years before he gets a definitive diagnosis. That’s because mesothelioma is a disease that takes years to develop following the initial exposure – although it’s not surprising this individual is already experiencing symptoms, 10 years later.

In this case, it appears the repairs weren’t properly made as to contain the asbestos dust.

In a situation like this, one may be able to hold the landlord or his contractor liable for the exposure, particularly if they knew or should have known asbestos was present in the building and failed to address that issue during the course of repairs following the burglary.

Catching the disease early is key to ensuring sufferers live the longest and highest quality lives possible. This individual may have been relatively lucky, in that it seems he discovered the cause of his illness within just 10 years. It often takes much longer than that for the disease to manifest and for doctors to issue a firm diagnosis.
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There are 55 countries in the world that have banned the use of asbestos, the material proven to cause mesothelioma cancer.

The U.S. is not one of them.

Our Boston mesothelioma lawyers understand that one man in Illinois had set out to change that. Sadly, he passed away late last year of the disease, at the age of 46. Now, as the Pekin Times reports, his wife is picking up his torch.

In an interview late last month, she was quoted as saying that the disease took his life, but it never stole his spirit or passion – or his desire to see asbestos barred from use in this country.

His wife is now hosting a memorial motorcycle ride in her husband’s honor, to raise funds for mesothelioma research and also to promote awareness about the U.S. government’s failure to enact a ban on asbestos.

In fact, asbestos was banned for a short time in certain products. Back in the 1970s, the U.S. Consumer Product Safety Commission had banned the use of asbestos in certain products, like wall patching compounds and textured paint. In July of 1989, the Department of Environmental Protection issued a final rule banning most products containing asbestos. It prohibited the manufacturing, importation, processing or commercial distribution of many asbestos-containing products. However, the regulation was overturned by the Fifth Circuit Court of Appeals in New Orleans in 1991.

According to the EPA, the products that are still banned include:

• Rollboard;
• Commercial paper;
• Specialty paper;
• Flooring felt;
• Corrugated paper;
• New uses of asbestos;

It’s also banned for use in fireproofing and insulation and “decorative” purposes.

Still, there are numerous asbestos containing products that aren’t banned in the U.S. Those include:

• Asbestos-cement flat sheet;
• Asbestos clothing;
• Pipeline wrap;
• Roofing felt;
• Asbestos cement-shingle;
• Millboard;
• Automatic transmission components;
• Vinyl-asbestos floor tile;
• Disc brake pads;
• Brake blocks;
• Brake linings;
• Non-roof coatings;
• Roof coatings;
• Gaskets;

What’s more, the EPA doesn’t track the manufacturing, processing or distribution of products that contain asbestos in the U.S. The agency instructs, “It would be prudent for a consumer or other buyer to inquire as to the presence of asbestos in particular products.”

But consumers shouldn’t have to ask whether the products they are purchasing contain a substance that could kill them.

And that’s the point made by the widow in Illinois. Had asbestos been banned in this country during his life, he would probably still be alive today.

His widow believes that he most likely was exposed to asbestos while serving on a ship in the Navy.

All proceeds from the memorial ride are going to a scholarship fund in her husband’s names, as well as the Asbestos Disease Awareness Organization and the Mesothelioma Research Foundation.
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Those diagnosed with mesothelioma after their contact with asbestos-laden ship materials made by Skinner Engine Companies Inc. have had a difficult road over the last 30 years.

Our Boston mesothelioma lawyers know that this company, like so many others that have gone under in the wake of asbestos exposure litigation, has been duking it out with creditors in bankruptcy court since 2001. A big part of the contention is how present and future claims against the company by mesothelioma patients will be handled.

Although this appeal was based primarily on a technical bankruptcy issue as it relates to this one company, it sheds light on the inner workings of companies that are fighting mesothelioma litigation.

Some background:

Claims of exposure to asbestos by former employees and their survivors have been lodged against the company since the 1980s.

In fact, by the time the company filed for bankruptcy, there were nearly 30,000 asbestos claims pending against it, mostly from merchant mariners. Because those claims fell under federal admiralty jurisdiction, they were put on a special maritime docket. Then in 1991, those cases were consolidated with nearly 90 other asbestos claims pending against other Pennsylvania companies. In 1996, the bulk of these asbestos claims were dismissed without prejudice because the court determined that the plaintiffs hadn’t been successful in producing solid medical proof or exposure history.

This points to a difficult part of many mesothelioma cases, which is that because the disease is latent for decades, proving the exact point of exposure can be challenging. This is where having an experienced lawyer comes into play because our team is thoroughly familiar with how to research these cases – and how to prove them in court.

After these cases were dismissed, there were still a dozen still pending against Skinner. More have been filed since, as more and more people receive mesothelioma diagnoses.

This brings us to the U.S. Court of Appeals for the Third Circuit’s recent ruling In Re: Am. Capital and Skinner Engine Companies Inc. It was ultimately decided that the bankruptcy court did not err in reversing the company’s bid to undergo a Chapter 11 bankruptcy, which involves a restructured payment plan, instead converting it to a Chapter 7 liquidation bankruptcy. The reasoning provided by the justices in this ruling came down to the fact that although the company and its attorneys had come back with five different repayment plans under the Chapter 11 model, those plans were either rejected by creditors or considered by the court to be unworkable in a way that would be fair to asbestos plaintiffs.

The bankruptcy and district courts had ruled that part of the reason for dismissing the fifth financial restructuring proposed by Skinner in its effort to solidify terms for its Chapter 11 were collusive – or an action to defraud another or to obtain something illegally.

While the U.S. Appeals court couldn’t find any direct evidence of collusion, it did find that it’s plan for restructuring was not feasible and wasn’t reached in good faith.

Skinner is a defunct company. It was purchased by American Capital Equipment, but on its own doesn’t have any employees or assets.

The idea was to work out a trust fund to support future asbestos pay-outs. However, the way the company had structured that trust was not going to work, the court ruled. The money would be depleted in short order, particularly if mesothelioma victims chose to go to court rather than accept a settlement directly from the trust.

Mesothelioma victims deserve not only to have their day in court, but also ensure there will be compensation available to them when they win.
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An advocate battling for a cure to mesothelioma has died – though his cause has not.

Our Boston mesothelioma lawyers were saddened to hear of the passing of Larry Davis, a Florida runner who raised tens of thousands of dollars for mesothelioma research, and always ended his e-mails with the phrase, “Believe in a Cure – believe in yourself.”

Sadly, this disease is not discriminatory. Given that its root cause is airborne exposure to asbestos, which used to be contained in thousands of everyday products in regular use by average Americans, its reach appears to know almost no bounds. It’s estimated that about 3,000 people in the U.S. are diagnosed with mesothelioma every single year.

Although research is ongoing, a diagnosis is currently akin to a death sentence. It becomes not if, but rather when.

If the companies that produced these products – which ranged from shipbuilding material to insulation, automobile parts and textiles – didn’t know the damage that was being caused, this would be a terrible tragedy.

The fact of the matter is, though, that most of these manufacturers were aware of the danger in which they were placing their workers and consumers, and yet they allowed greed to fuel their continued production anyway – and that’s an outrage.

While the disease has claimed a number of famous individuals (Steve McQueen, Warren Zevon and Merlin Olsen, among them), Larry Davis was not famous in the traditional sense of the word. But he did make quite a name for himself, particularly in his last years as he fought tirelessly for a cure.

According to the Sun-Sentinel, Davis was 61-years-old when he was diagnosed with mesothelioma. Doctors at the time gave him six months to live.

That was six years ago.

Given the aggressive nature of this disease, it’s practically miraculous he survived as long as he did.

In the years following his diagnosis, he raised close to $80,000 during his 8K races in Boca Raton, called Miles for Meso. Additionally, he competed in races and even triathlon throughout the country, at each one making it a point to raise awareness about the disease and the fight for a cure.

He competed in one triathlon prior to his fifth abdominal surgery since his diagnosis. His wife was an eight-time finisher of the Boston Marathon, and he traveled here with her in April to watch her compete one last time.

Davis was one who beat most odds. Most patients live about 18 months after they’re diagnosed. Those who are Davis’ age have only a seven percent chance of living another five years.

What’s more, Davis’ father had died of mesothelioma as well.

A scholarship has been established in his name through the Runner’s Edge Foundation, which will be awarded on a yearly basis to a high school senior devoted to community.

While the cure was not found in his lifetime, we could all be served by following in his tracks.
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The widow of the late actor Steve McQueen, who died of mesothelioma, is slated to testify before the U.S. House of Representatives, urging lawmakers to formally ban the import of asbestos into the United States.

Boston mesothelioma attorneys know it’s a widely-held misconception that asbestos is illegal in the U.S. The fact of the matter is, the U.S. Environmental Protection Agency had issued regulations that would have completely phased out the use of asbestos in all products made here. However, the asbestos industry opposed those regulations and won in a court challenge in 1991.

So while it’s certainly no longer widely-used, it’s not illegal.

This is an extremely important issue to address, given that currently, the only prognosis for someone diagnosed with mesothelioma (caused by airborne asbestos exposure) is death – and usually a very swift one.

Because of the extended latency of the disease, those who were exposed decades ago – when asbestos was commonly used in a wide array of products – are only just now learning of their diagnosis.

While many U.S. manufacturers and builders today do tend to shy away from the use of asbestos in their materials, given the tidal wave of legal action that has ensued, they’re still not legally forbidden from using it.

And therein lies the problem that Barbara Minty McQueen hopes to address in her July 24th testimony on Capitol Hill, which will be on behalf of the Asbestos Disease Awareness Organization.

Steve McQueen, who was dubbed, “The King of Cool,” died at age 50 in November of 1980 after receiving his diagnosis of mesothelioma less than a year earlier. He passed away on an operating table in Mexico, where he had sought a number of unconventional treatments for his mesothelioma after doctors in the U.S. told him there was nothing more they could do.

He was a veteran of the U.S. Marine Corps from 1947 to 1950. Although Minty McQueen says he was very proud of his service, it was during this time, he believed, that he was exposed to asbestos. He reportedly removed asbestos-filled insulation from large pipes in the ship’s hold while he worked in the Navy Yard of Washington, D.C.

There is also the possibility, he believed, that he could have contracted mesothelioma from the asbestos contained on sets and soundstages in Hollywood and New York, or even possibly in the racing suits and helmets he wore as an avid motorcycle racer.

The fact that there were so many products he came in contact with that could have caused his mesothelioma is a testimony to just how pervasive the problem is.

His widow will be speaking at a staff briefing entitled, “Asbestos: Environmental and Occupational Exposure Continues.” She recently penned a book about her husband’s last days, entitled, “The Last Mile…Revisited.”

Her efforts to urge legislators to formally ban asbestos in the U.S. is a noble one, and we support her in it.
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Our Boston mesothelioma lawyers are encouraged anytime we hear about sizable verdicts in mesothelioma cases – not just here in Massachusetts, but all over the country.

In a sense, even though we work for different law firms, we view other mesothelioma attorneys as fighting the same fight – not only to win compensation for mesothelioma sufferers and their families, but to hold accountable those companies who for years turned a blind eye to the grave risk they perpetuated against their employees and the public at large.

(That said, not all mesothelioma attorneys are the same – do your research and don’t commit until you’ve found a firm with a record of success!)

In this case, we were pleased to learn about a case out of Southern California, in which a retired cement contractor/construction superintendent and his wife were awarded nearly $50 million by jurors following a six-week trial.

Media reports indicate that the 86-year-old, who also served as a former local city councilman, was given $30 million in compensatory damages and another $18 million in punitive damages. Compensatory damages are monies that the jury believes will compensate the victim for his or her injuries. Punitive damages are enacted for the purpose of punishing the defendant.

This verdict is reported to be the largest of its kind in the country this year.

The lawsuit, which was filed last year, had alleged negligence against a number of companies, including Union Carbide, Riverside Cement and California Portland Cement Co.

According to court documents, the plaintiff had worked as a construction superintendent and cement contractor between 1947 and 1980 at a number of locations in the Southern California, Los Angeles-area.

Part of that work meant that he was involved in building hundreds of commercial buildings and residential structures and even a few churches. In doing all of this work, he claimed that he was using asbestos-containing products, manufactured by the above-mentioned companies. Additionally, he was involved in remodeling a number of those structures, and was using those same products in the course of those projects as well.

Although he hadn’t been doing that type of work since the early 1980s, he only last July learned that he is suffering from mesothelioma, due to the exposure to asbestos.

His wife was also named in the suit, alleging loss of consortium, or companionship.

The couple’s attorney said the not only were the named companies responsible for selling dangerous products, but they spent millions of dollars trying to hide the fact that they were dangerous.

One of the companies, Union Carbide, reportedly put numerous “expert” witnesses on the stand, claiming that their brand of asbestos was not cancer-causing. However, there was documentation and internal memos that suggested the company’s staff doctors chastised those in the marketing departments for telling customers that their asbestos wasn’t dangerous, when in fact it was.
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