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A new study published recently by the Danish Medical Journal indicates that bans on asbestos are slow to drive down the number of mesothelioma diagnoses as a whole.
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While our Boston mesothelioma lawyers can certainly appreciate that progress takes time, we worry that asbestos defendants will attempt to twist these findings to somehow indicate that their culpability has been overstated.

The truth of the matter is that mesothelioma, an aggressive and terminal cancer that attacks the delicate lining of the lungs and/or stomach, is caused by asbestos, and only asbestos. The problem in proving claims has historically been this very issue of latency. The disease displays no symptoms whatsoever until it is in its advanced stages. By then, the patient is typically given a few years to live.
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The closely-watched Chapter 11 bankruptcy trial of asbestos defendant Garlock Sealing Technologies has concluded, and it’s still unclear to both sides at this point how much the manufacturing giant will have to fork over to settle current and future claims of injury.
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Our Boston mesothelioma lawyers know that on the one hand, Garlock, a manufacturing giant, has low-balled the estimated amount it should be held liable at somewhere around $270 million. However, those testifying for the existing plaintiffs put the suggested sum at closer to $1.3 billion.

As of the day the trial had ended, there was no clear indication from the judge of which way he might be swayed or if the final decision would end up somewhere in the middle. The judge must sift through a near literal ton of evidence, as some 900,000 plaintiffs have made injury and wrongful death claims against the firm, relative to its production of asbestos-laden products and failure to warn employees and the public of the known dangers.
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The world could use more Charles Varnadores, whose complaints regarding workplace safety at his Tennessee lab ultimately resulted in enhanced whistleblower protection and shed light on dangerous working conditions – including those involving asbestos.
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Varnadore passed away recently, at the age of 71, in his home in Knoxville. Our Boston mesothelioma lawyers understand his passing in March occurred with little fanfare, with no more than a short blurb in the local newspaper. It wasn’t until The New York Times received word of it that they ran a full-length, feature obituary, detailing his contributions to safety for all American workers.

Varnadore’s story began back in 1990. At the time, he worked as a technician at the Oak Ridge National Laboratory in Tennessee, the country’s largest energy and science laboratory, operating under the Department of Energy. The federal nuclear research center had a part in helping to develop the atomic bomb.

Varnadore became aware of numerous safety practice violations that jeopardized the well-being of workers at the facility. He had just returned to work following a colon cancer surgery, and discovered that the person who replaced him had not been cautious in handling certain lab samples. He reported this to his employers, who then moved him to a new assignment.

However, the new position involved operating a mechanical arm that handled radioactive materials. The problem was that he had been blinded in one eye as a child, so his depth perception was off. This posed a critical safety risk in his operation of machinery. He said he tried to do the work, but ultimately made a mess and put other workers in harms’ way.

Suddenly, after many years of positive reviews, his employment evaluations were all negative. He was shuffled from assignment to assignment so frequently, his co-workers began to joke about his being a technician on roller skates.

A year after his return to work, he was given a storage room to serve as an office. Inside that storage room were bags of asbestos, chemical waste and radioactive waste.

Still, he was not silenced. He took his concerns to CBS Evening News, where he went on the record to say he was deeply concerned about the heightened risk of cancer that he and his co-workers faced. At that point, he filed the first of what would be several whistleblower complaints to the Labor Department.

A whistleblower complaint is one in which an individual invokes the promise of immunity in order to come forward to report a dangerous situation.

While the company didn’t deny that Varnadore was put into an office with all of these dangerous materials, it argued that such substances weren’t present in quantities that were large enough to be dangerous to his health.

In early 1992, the agency’s wage and hour division ruled in his favor. However, the case dragged on through a series of appeals, and there were a number of high-level reversals that were ultimately upheld.

In this sense, one could say that Varnadore lost the fight. However, his former attorneys point to a number of changes that came about as a result of his efforts. Those included:

  • A renewed willingness among nuclear workers to report safety concerns;
  • Energy Department reforms that resulted in overall safer practices within the industry;
  • Increased protections established for whistleblowers soon after his high-profile fight.

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Recently in Pennsylvania, a 62-year-old man alleges that his lung cancer diagnosis was due to his work in and around asbestos-containing products for decades, starting in the 1960s.
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He filed his claim against nearly 30 different companies earlier this month, including:

  • General Electric
  • Georgia Pacific
  • Honeywell International
  • Pfizer
  • Sears Roebuck and Co.
  • Union Carbide Corp.
  • Certainteed Corp.
  • DAP Inc.
  • Ford Motor Co.
  • Owens-Illinois

Our Boston mesothelioma lawyers recognize that what makes this case noteworthy is that the plaintiff is a lifelong cigarette smoker. His medical records revealed that he smoked about one pack of cigarettes daily from 1966 to 2010.

While his case will be more of an uphill battle than most, it’s not impossible for asbestos exposure victims who smoke or formerly smoked to attain a favorable verdict.

What will make this case a little tougher is that he was diagnosed with lung cancer, and not specifically mesothelioma. While lung cancer has been known to have a variety of different causes – cigarette smoking high on the list of those – mesothelioma is far more rare. The only known cause of mesothelioma is exposure to asbestos.

No doubt, the deep-pocketed defendants in this case are going to make this man’s smoking history an issue before this case ever gets to trial. Still, there is the potential for him to win, based on the strong evidence that he was routinely exposed to asbestos throughout his career and we know that asbestos exposure in any amount is deadly.

Court documents reveal that the plaintiff for a time worked as a deliveryman, loading and unloading various asbestos-containing products, including rolled roofing materials and shingles. Then as a machinist and laborer, he was reportedly exposed to asbestos while working in close proximity to asbestos-containing valves, pumps and boilers. In his role in automotive work, he toiled closely with gaskets, clutches, brakes and mufflers that all contained asbestos. He also conducted a number of home renovations in which he was exposed to asbestos in various construction material, including drywall, joint compound, caulk, floor tiles, insulation and paint.

All of this would suggest the plaintiff has a high likelihood of developing an asbestos-related disease. It establishes a strong foundation for proving his illness was caused, at least in part, by those products.

A person who smokes and was exposed to asbestos is likely going to be at a much higher risk of developing some form of cancer. This is referred to in medical journals as a “synergistic effect,” and it’s been well-documented in research. But while cigarette smoking may increase your risk of developing a lung-related illness, it does not allow asbestos manufacturers to be off the hook. However, it could mean a lesser award than you might have otherwise received had you never smoked, as the court will dole out a percentage of responsibility to each party.

For example, the court might find that the plaintiff in this case is 20 percent responsible for his own disease, while the 10 companies listed bear 8 percent responsibility each.
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Massachusetts law requires that if asbestos is discovered in the course of a renovation or demolition project, you must tap a contractor qualified to properly handle the deadly material.
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Our Boston asbestos exposure attorneys know that these are firms you are supposed to be able to trust to safely dispose of the material in a way that is going to minimize the health risk both to the workers themselves, as well as the general public.

However, one company based in Worcester was reportedly failing in that duty. The firm was red-flagged following an inspection in which the employees were seen mishandling the removal of shingles that contained asbestos from a home in Worcestor.
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As the bankruptcy trial for Garlock Sealing Technologies has continued, a major point of contention continued to be how much the company should set aside for victims of its asbestos exposure.
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Keep in mind: Garlock isn’t broke. In fact, it is the nation’s largest manufacturer of industrial gasket products and has distribution centers established in some 75 countries.

With the bankruptcy trial, the goal is to continue to stay in business by purging itself of liability for the more than 25,000 asbestos exposure claims pending against it. By filing for bankruptcy and establishing a federal trust, from which victims can make claims directly, the company can continue to operate without ongoing bother from those who have been diagnosed with mesothelioma as a result of the asbestos in its mass-produced goods.

Our Boston mesothelioma lawyers know that Garlock previously attempted to set the trust compensation amount at $125 million.

A consultant for the claimants, however, says that the figure should be closer to $1.3 billion to cover current and future claims.

Part of what Garlock is attempting to argue is that plaintiffs are exploiting the confidentiality claims granted by other asbestos trusts founded by other companies. As a result, an individual is able to make multiple claims against multiple companies, alleging that each is responsible for his or her illness.

But here is where that argument falls flat: First of all, outside investigation by federal watchdogs has already established there is little to no evidence of plaintiff fraud as it relates to trusts. Secondly, it is completely plausible that asbestos from more than one manufacturer contributed to a person’s illness.

Asbestos products were very common in a multitude of products throughout the last century. That a person could have been exposed to more than one of those, which significantly contributing to his or her illness, is not out of the question. No amount of exposure to asbestos has been deemed safe, which means even exposure for short periods of time could result in manufacturer or distributor liability.

Interestingly, for all its talk of transparency, Garlock was able to successfully lobby to have certain proceedings in the bankruptcy trial closed to the public, arguing that information regarding specific settlement agreements and discovery amounted to trade secrets and confidential business information.

Garlock has historically been one of the most ardent defenders against asbestos exposure claims, employing tactics that kept victims strung along for years on end. Many times, the cases had to be transferred to family members because the direct plaintiff had succumbed to his or her illness. In the end, it filed for bankruptcy after buckling under the sheer number of liability claims that were pending.

Although Garlock defense lawyers adamantly reject the assertion that their clients are $1.3 billion indebted to plaintiffs for these claims, the plaintiff consultant reported she factored in the following to reach that figure:

  • Historical trends involving asbestos claims;
  • Estimated future claims figures;
  • The cost for legal representation, as covered by the trust;
  • Administrative costs required to operate the trust.

The trial is predicted to wrap later this month.
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Improper removal of asbestos at a Fitchburg power plant site being renovated last year has resulted in a Haverhill company facing at least $3,000 in fines by state regulators.
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One one hand, our Boston asbestos exposure attorneys are grateful that state regulators are being vigilant with regard to ensuring companies are held accountable when they violate state laws intended to protect workers, the environment and the general public. On the other hand, we must wonder how seriously companies take these matters when the fine is so miniscule.

When the cost to properly strip, handle and dispose of this toxic material is more than what the company is going to pay in fines if they don’t, it’s almost seen as a cost of doing business. Most just hope they don’t get caught.

This not only puts dishonest companies at an advantage, it potentially puts all of us at risk of illness. It especially puts workers’ health on the line.

According to media reports, the contractors, while working a job last summer, failed to follow asbestos removal procedures as laid forth by the Massachusetts Department of Environmental Protection.

An inspection of the former Gas and Electric power plant in Fitchburg last August revealed that the contractors were careless with asbestos waste material. Specifically, workers were seen putting pipes insulated with asbestos in a wide open container without properly wetting the material. Neither did the workers properly seal the pipes in properly-labeled, leak-resistant containers. These are all things required by the MassDEP in handling asbestos waste.

Thoroughly wetting asbestos and asbestos-containing materials during the process of removing, handling and packaging it all for disposal helps to prevent the toxic fibers from becoming airborne. This helps to minimize the danger to workers as well as the general public.

What is especially concerning about this case is that it involved a licensed asbestos contractor. So this is a company that most certainly knew better – or should have known better. Their practices and procedures should be air-tight. Andy deviation from that is either a dangerous cost-cutting method or simple carelessness that cannot be tolerated.

Statute 310 CMR 7.15 requires that property owners and/or contractors notify the MassDEP at least 10 working days prior to disturbing asbestos. the owner/contractor also has a responsibility to ensure that any and all asbestos-containing material is properly handled and disposed. The state regulator doesn’t issue site-specific permits, but it will randomly inspect job sites to ensure that work is done in accordance with its rules.

That includes regulations that mandate specific measures to prevent the fibers from becoming loosened or uncovered and provisions to shield workers coming in direct contact with the material by providing adequate respiratory protection gear.

Still, we strongly believe that the threat of stiffer fines would serve as a greater deterrent in the circumvention of safety rules.
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While renovating a town building in Hyannis, workers fear they were not only exposed to asbestos, but town officials in Barnstable knew it and didn’t tell them.
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Cases like this reveal why our Boston mesothelioma attorneys know that diagnoses of this deadly cancer aren’t going to disappear completely this century. The disease stems solely from airborne contact with this toxic organic fiber, and it’s everywhere – in homes, school and government buildings, motor vehicle parts, construction materials and insulation – the list goes on.

It’s bad enough that the workers who originally installed it likely became ill due to their exposure, about which their employers knew the risks but failed to warn. But now, we are seeing a whole new generation of workers being placed at severe risk for illness when these older structures require renovation or demolition.

The dangers are more widely known today by the general public than they were 40 years ago. However, workers rely on their employers to conduct due diligence in not only determining whether asbestos is present in a structure but in then following state and federal law to minimize the danger in its handling and disposal. Responsibilities also include informing workers when asbestos is present and providing respiratory protection when necessary.

A union leader for the workers says that whether the actions of the town’s management were intentional is not yet clear. But if the town didn’t know asbestos was present in the construction site, they had a responsibility to know. At the very least, the union leader pointed out, a failure to warn and protect workers would rise to the level of gross negligence.

The renovations were being conducted to a building to that houses a number of the town’s government offices, including school administration.

The material was discovered by a number of workers, shortly after the renovations got underway. The workers took the material to their supervisors, and demanded to know whether the material was in fact what they suspected it was. They wanted it tested.

However, the supervisors assured them that no asbestos was present in the area where they were working, as the town had already conducted appropriate testing. The workers kept pushing to have the material tested. It eventually was tested, and the results were sent to the town within 24 hours. The test was positive.

Yet that finding wasn’t shared with the workers until almost a month later, and even then only after the workers filed a labor grievance.

The testing revealed that the materials contained chrysotile asbestos, known definitively to cause mesothelioma, even with minimal contact.

The workers have grave and legitimate concerns because at one point during the project, an industrial-strength vacuum cleaner was used to blow some of the asbestos material into the air as part of the clean-up. None of the workers in the area wore masks or respirators. Some were covered with dust. They wiped their hands on their faces and, in some instances, they were eating immediately afterward.

Still, town officials insist that the asbestos material was limited to part of the floor that hadn’t yet been removed. We question this, however, because the workers reportedly came in contact with enough of it to provide a sample for testing.

Workers are now demanding that the state’s attorney general launch an investigation into the matter.

Although mesothelioma isn’t likely to reveal itself for years if not decades, early detection is critical, so we would encourage anyone who might have been exposed to visit with their doctor and be vigilant regarding any symptoms as time wears on. We would also encourage at least meeting with an asbestos injury lawyer to learn about your possible options for compensation.
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Less than a week after OSHA slapped Ford Motor Company with a substantial government fine for failing to protect workers from the asbestos-laden products it continues to use, the company lost an appeal on another asbestos case.
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Our Boston mesothelioma lawyers have learned that Maryland’s highest court upheld a lower court’s ruling against the firm, awarding $15 million to the family of a woman who died of asbestos exposure from her husband’s work clothing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If it wants to take measures to make it tougher for claimants to be compensated – even if that’s in the name of anti-fraud efforts – those tactics should be made public.
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