Mesothelioma Lawyers Blog

Debbie Brewer loved her father.

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

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

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

Terminal illness and death is the price they are paying.

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

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

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

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

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

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

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

We are committed to working closely with these individuals and their families to fight for compensation.
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Dr. Bill McQueen’s hands had healed many in his extensive career as a renowned ear, nose and throat surgeon.

But for all his skill, experience and education, he could not save himself against the most formidable medical enemy he ever faced: Mesothelioma.

Our mesothelioma lawyers understand the Texas doctor died earlier this year, two years after his diagnosis, following a whirlwind of aggressive treatments and the initiation of litigation that is now being carried on by his widow, only in her early 60s.

McQueen’s case, chronicled recently by The Wall Street Journal, serves to shatter the misconception that mesothelioma affects only blue collar shipyard workers, mechanics and other tradesmen.

In fact, the surgeon never worked in any of those fields. He did, however, work closely with his father in the family greenhouse as a teenager. He also helped extensively with home improvement projects around the house with his dad. Unbeknownst to father and son, many of the products they used to complete their various chores were laden with asbestos. Exposure to these fibers is the only known cause of mesothelioma, which lies dormant for decades before revealing itself in a terminal diagnosis.

In terms of litigation, these cases can present more challenges than those brought by tradesmen who worked in industries known to have extensively used tools and products manufactured with the deadly substance. In the latter, the point or points of exposure may be easily identifiable. Plaintiffs can clearly say, “I worked at XYZ manufacturing plant between this year and that year, and the products used during the course of my duties contained asbestos fibers, for which I was neither warned nor protected.”

But it’s tougher when the exposure occurred during a home improvement project. You might remember a major kitchen renovation 40 years ago. But you wouldn’t likely have the receipts to prove that the flooring or the roofing or the plumbing or the insulation was a brand that was later found to have contained asbestos. That’s if you even remember the brands used at all. It gets even tougher if the exposure was a result of minor, incremental projects, as alleged here. Asbestos was contained in products as inane as caulking materials, adhesives and various mastics.

A recent study by an economic consultant analyzing the asbestos litigation filings of a court in Philadelphia discovered that nearly 50 percent of the asbestos injury claims made between 2006 and 2010 were filed by plaintiffs who cited exposures from do-it-yourself construction or mechanical products. Prior to 2000, these plaintiffs made up just 3 percent of the total.

Anyone diagnosed with mesothelioma – or who has had a loved one pass from this awful disease – likely has a strong case for damages. But recovery of damages is going to depend on your ability to prove exposure. Our Boston mesothelioma law team has extensive experience in representing clients whose exposure arose from non-traditional sources. We know how to investigate these cases and how to improve your chances of winning the compensation you deserve.
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A five-year prison sentence looms large for a former Nestle plant owner who illegally removed asbestos from his property in violation of the federal Clean Air Act.

Our Boston mesothelioma lawyers understand that the 47-year-old defendant has pleaded guilty to allegations by the U.S. Attorney’s Office that he damaged and removed some 2,000 feet of friable asbestos installation without filing the proper notification with the Environmental Protection Agency.

During the course of the work, prosecutors say the owner hired unlicensed and inexperienced labor to remove the asbestos. Throughout the removal process, the workers failed to keep the asbestos wet. This is a critical step in asbestos removal that helps to ensure the fibers don’t become airborne, posing a risk that it will be inhaled by those nearby.

Inhalation of asbestos can be deadly.

Asbestos exposure leads to a number of serious illnesses, including chronic asbestosis and mesothelioma, which is fatal.

In addition to improperly removing the material, prosecutors say the workers weren’t given protective respiratory gear. Topping it all off, the asbestos wasn’t taken to a previously-approved landfill site for proper disposal.

In this case, it was the workers who tipped off investigators with the U.S. Justice Department that what was happening at the New York work site was not right.

The U.S. Clean Air Act, incorporated into Title 42, chapter 85 of U.S. Code, holds that any personnel working on asbestos activities in public, schools or commercial buildings must be accredited. These personnel include workers, inspectors, supervisors, management planners and project designers.

The National Emission Standards for Hazardous Air Pollutants for Asbestos, which falls under section 112 of the Clean Air Act, lays the groundwork for safe work practices that will help minimize the release of deadly asbestos fibers during the processing, handling and disposal of materials that contain asbestos.

Prosecutors say this is a serious problem, and unfortunately, not an isolated one. The U.S. Attorney’s Office in the Central New York reports they have prosecuted more than 100 such cases in the last 15 years.

Boston too has had its fair share of these cases, revealing that the prevalence of this negligence ensures we will be seeing asbestos exposure liability claims for many years to come. For example, in 2011, a contractor and a real estate agent were fined $42,000 for improper asbestos removal from a property in Worcester. In another case in 2012, Swampscott, a demolition company was ordered to pay $100,000 for improper removal and disposal at a number of locations throughout the state.

The list goes on and on.

Prosecutors in the recent New York case say the fine amount – which could reach as high as $250,000 – should take into account the fact that the city has had to hire its own, licensed asbestos abatement firm to conduct proper removal of the hazardous material that remains on site.

Workers who are negligently exposed to asbestos and suffer illness as a result are entitled to civil compensation.
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A new study conducted by researchers in Washington state reveals that cancer patients were more than twice as likely to file for bankruptcy than those who had never been treated for cancer.

Our Boston asbestos litigation lawyers know that the financial burden tends to be higher for those who suffer from rare and aggressive forms of cancer, such as mesothelioma. Their treatments, medications and procedures are often more intensive, invasive and ultimately more expensive than more common types of cancer.

Part of that has to do with the fact that when a cancer is commonplace, the drugs are mass-produced, more readily available – sometimes even in generic form – and ultimately cheaper. Also, treatments and surgeries for common cancers may be less expensive because more physicians and surgeons are trained to conduct them, whereas mesothelioma patients may need to seek out skilled specialists whose services may not be as readily available.

Most cancer patients have nothing to blame but bad genetic luck for their misfortune. Mesothelioma patients, however, can always point to a specific cause: asbestos. In many cases, patients can even identify exactly when they were exposed. Often (though not always), it was an occupational exposure, stemming from work in shipyards or construction or other industrial occupations. Many of the firms that produced asbestos-laden products knew that they were dangerous, and yet did nothing to alter the product or warn those who regularly used them. Nor did they provide appropriate protections that might have shielded victims from inhaling the deadly fibers.

It is primarily for this reason that mesothelioma sufferers should seek compensation through civil litigation or a claim to one of the several dozen asbestos bankruptcy trusts. Holding these firms accountable continues to be of great importance.

But so too is the financial solvency of your family and those you will leave behind. Spouses of mesothelioma victims can be left not only with the devastating loss of their life partner, but many times, they are left to cope with financial ruin.

According to this study, published in the journal Health Affairs, the researchers mined data from some 400,000 adults, who were evenly split between those who had been treated for cancer and those who had never had cancer. The researchers then cross-referenced that information with bankruptcy filings between 1995 and 2009. Those who had cancer were 2.5 times more likely to endure a bankruptcy during that time frame.

The study didn’t break down which of those cancer sufferers had insurance, but there has been prior research that strongly suggests that many of those who cite significant health issues as the catalyst for their bankruptcy filing did have health insurance.

The greater disparities are reportedly seen when the information is broken down by demographics. For example, minority patients were more likely to suffer a bankruptcy than their white counterparts.

The release of the study coincided with an effort to reduce the cost of cancer drugs, with more than 100 doctors criticizing Big Pharma firms for making critical cancer drugs too pricey for most people to afford.

Certain federal budget cuts have also forced some cancer patients to delay important treatments.

Time is something many mesothelioma patients don’t have in great supply.
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“Nice try, but not happening.”

That was basically the response given by a a federal bankruptcy judge to RPM International Inc., the parent company of Bondex and Specialty Products Holding Corp., in its efforts to limit its liability on future asbestos exposure litigation claims.

Judge Judith Fitzgerald called the company’s attempt a “novel theory,” but ended up flatly rejecting it in a 51-page ruling issued from her position in the U.S. Bankruptcy Court in Wilmington, Delaware.

Our Boston mesothelioma lawyers believe Fitzgerald’s ruling contains sweeping language that is expected to have implications for future asbestos exposure cases.

Bondex, as you may know, is a joint compound that was used by everyone from plumbers to home builders to do-it-yourself motor vehicle mechanics. Products made from this asbestos-laden material included ready-mix joint cement, liquid aluminum coating, fibered masonry coating and ready-mix finish.

Bondex and its direct holding company, Specialty Products Holding Corp., were later purchased by RPM, who continued to market many of these same, dangerous products.

Then, as so many companies beset with asbestos litigation later do, Bondex and SPHC filed for a Chapter 11 bankruptcy protection. RPM was not a part of the filing, but the bankruptcy was intended to initiate the establishment of an asbestos section 524 (g) trust that would serve to compensate existing and future asbestos victims. If approved, it would not only cap the value of future claims against the two subsidiaries, it would hold RPM blameless in future litigation.

As part of setting up this trust, the companies had to estimate what their actual current and future liability is. Part of that involves determining the history and value of past claims. This is where Bondex tried to get tricky.

Both companies said their liability should be between $300 million and $575 million. The firms argued that in delving into the history of these claims, there were a number of cases that couldn’t be counted. The reason? The companies said they had only settled them because they were “nuisances,” and doing so was not an admission of guilt, but rather an effort to reduce the cost of litigation. By weeding out these “nuisance” claims, the companies argued, they could significantly reduce their future liability amount.

No way, said the judge, ultimately holding that the liability of both firms is somewhere closer to the $1.2 billion range. In her reasoning, the judge said that the historical information – ALL of it – is relevant. These were claims the company chose to settle, and they can’t now come back and say they don’t count, though the judge called it a “novel theory.”

It’s true that some companies will settle certain claims on the basis of factors other than merit. However, allowing the companies to determine which claims are which, particularly when we’re talking about how much money they should set aside for future cases, is a little like allowing the fox to guard the hen house.

The companies have said they intend to appeal, a process that could take another three years.
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A mesothelioma lawsuit brought by a Massachusetts widow seeking compensation following her husband’s death was recently dismissed by a state appellate court, which ruled the plaintiffs had failed to bring enough evidence to prove the decedent’s illness was caused by the negligence of the defendant.

Our Boston mesothelioma lawyers did not represent the plaintiff in this case, Whiting v. CBS Corp. From the outside looking in, we can see how the case failed, and we can take from it lessons moving forward in similar litigation actions.

The case was first filed in May of 2008. At that time, the plaintiff’s husband had died of malignant mesothelioma. It was alleged in court documents that he had become sickened by his exposure to asbestos during his Navy service in boiler and engine rooms while aboard the U.S.S. Guadalcanal between 1968 and 1972.

Contained in the bowels of the ship were turbines and valves that were manufactured by the defendants. There were also pumps, pipes and valves that used insulation, packing and gaskets that contained asbestos.

The plaintiff sued CBS Corporation, the maker of those turbines, saying that her husband’s exposure to the defendant’s asbestos-containing products had made her husband sick and ultimately killed him. The defendants were accused of failure to warn of product dangers.

Unfortunately, the Massachusetts Superior Court granted the defendant’s motion for a summary judgment, on the basis that there was no evidence proving that the defendant’s product had contained asbestos.

It is the burden of the plaintiff lawyer, the court ruled, to prove that not only did the product in question contain asbestos but that the asbestos exposure from that product likely caused the plaintiff’s illness. CBS Corporation, previously known as Westinghouse, has approximately 104,000 asbestos-related claims pending against it. There is no question that a number of the company’s products contained asbestos.

The primary problem in this case appears to have been linking the plaintiff’s husband’s illness to the product. This is a challenge in many of these cases, as we are often many decades removed from the events in question and locating witnesses and securing documentation can be a challenge. A diagnosis alone won’t be enough to prove the case, even though we know that mesothelioma is caused solely by asbestos exposure.

Here, the only real evidence of the husband’s exposure to asbestos came from the testimony of a single shipmate, who said he couldn’t recall the decedent specifically working on the turbines, but said that he “would have” done so in the course of his work.

Other than that, the plaintiff lawyers provided no other direct evidence that the company’s valves were supplied with packing or gaskets, much less with packing or gaskets that contained asbestos. Plus, the materials that were in those boiler and engine rooms where so many veterans worked were produced by a number of different manufacturers. The plaintiff should have gone after each of them, and then perhaps the liability could have been divided.

No law firm can guarantee you results, but the reality is that there are too often basic errors and oversights that could have been avoided. It’s heart-wrenching because we know that this woman has not only endured the loss of her husband, but now also five years of litigation with no results.

Our attorneys have proven results in these cases. We know how to approach them. We know what works and what does not, and we have experienced legal teams dedicated to ensuring that each case gets the research and resources necessary to win.
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In the same month that we celebrate the immense sacrifices made by our nation’s brave soldiers and their families, the House of Representatives delivers them a slap in the face with the committee passage of the Furthering Asbestos Transparency Act.

Our Boston mesothelioma lawyers understand that just a week before Memorial Day, the House Judiciary Committee passed legislation that not only dilutes the rights of veterans to compensation for certain injuries inflicted while serving, but also compromises their medical privacy.

Proponents of this measure would have you believe that it’s about reduction of fraudulent claims to asbestos trusts, which in turn would preserve funds to cover future claims. It’s a nice idea, but it’s not based in reality.

The fact is, numerous independent researchers – including the Government Accountability Office – have found no evidence of fraud being perpetuated on these trusts. These trusts were established to ensure victims of asbestos exposure – veteran’s comprise 30 percent of those – could continue to collect compensation from negligent companies even after they filed for bankruptcy due to the litigation. Make no mistake – these firms were not victims. High-ranking officials within these companies knew that their product was exposing people to the risk of mesothelioma, a fatal, aggressive cancer that lies dormant for decades. And yet, these firms continued to sell it, continued to conceal the risks from those who came in contact with it and continued to deny them equipment that could protect them from it.

U.S. veterans account for 8 percent of our population, and yet they account for 30 percent of mesothelioma victims. Most frequently, those on post-WWII Navy ships were at the greatest risk for exposure. In many cases, the asbestos was present in the ship’s insulation products.

So now, we have the FACT Act. This measure would require:

• That the trusts disclose extensive information about individual claims made to the trusts;
• Allow asbestos defendants to make demands on any additional information regarding those claims at any time and for pretty much any reason;
• Allow defendants to retroactively request reviews on individual claims, dating back to the initial creation of the trust.

Unlike litigation, the trusts were seen as a faster method to compensation. This is critical for many families as mesothelioma, once diagnosed, is fatal in a matter of a few years, if not months. Under this measure, many victims are going to die before their cases are ever resolved.

What’s more, it allows the public release of personal, identifiable information of victims, but yet allows the defendants in the case to maintain a shroud of confidentiality during the process.

Veterans could potentially face the disclosure not only of their public service information, but also of their private work histories, the details of their asbestos exposure, the last four digits of their Social Security number and, in some cases, even personal information pertaining to their children.

What have these individuals done to deserve this?

What’s happening is that elected officials are placing the interests of deep-pocketed corporate entities ahead of not only the average American, but above those who have given so much to ensure we live in the country we do today.

For that service, they are left grappling not only with a terminal illness, but now also an invasion of privacy. It’s not right.

Our mesothelioma lawyers would encourage you to contact your representative, urging them to vote “No” on the FACT Act.
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