Mesothelioma Lawyers Blog

As a number of states and even the federal government are looking to expand the “transparency” of asbestos trust claims throughout the country, The Wall Street Journal recently delved into the issue of alleged fraud by claimants.

Our Boston mesothelioma lawyers know, however, that not only is fraud a minimal occurrence – as indicated in a recent Government Accountability Office report, as well as numerous audits conducted by the trustees overseeing payouts – even those instances in which fraud is alleged, the situation may not always be black-and-white.

Still, there is a valid concern raised in the report, which is the question of whether the trusts will become depleted before the scourge of mesothelioma and other asbestos-related diseases is completely eradicated.

But first, let’s start with the allegations of fraud. The Journal reported that it conducted its own – admittedly non-scientific – analysis of some 850,000 claims made to one of the more than 40 asbestos trusts in the U.S. from the late 1980s through 2012. What they found was that some 2,000 claimants indicated they were exposed to asbestos before the age of 12.

On the surface, certainly this may seem suspicious. However, let’s stop to consider a few points.

To begin with, mesothelioma has a latency period of about 15 to 50 years. Someone who filed a claim in the late 1980s could have been exposed as early as the 1930s. The federal Fair Labor Standards Act, which regulated the employment of those under the age of 16, wasn’t passed by Congress until 1938. So presumably, a 12-year-old or young teen could have begun working at that point.

Secondly, you have to consider that the manufacturing industry was a major employer throughout the 19th and 20th centuries. If a father or male head of household went to work at a factory and returned with asbestos dust covering his clothing, it is likely that his wife and even children would have been exposed to the material that way and become sickened as well. The “occupation” title listed on the claim could be that of the adult family member who tracked that dust home on their clothing.

And finally, there is the possibility that there were errors on some of those dates. An error of 2,000 seems like a lot, until you consider the sample of 850,000, which means we’re talking a technical error rate of 0.23 percent.

Is there the potential for fraud? Sure, but it’s not likely to be widespread. Suddenly, this “clear” evidence of fraud has become quite muddled. As one asbestos trust advisory attorney put it: When handling such huge volumes of claims, there are going to be errors. However, errors aren’t fraud.

Legislators on the side of big industry have pointed to the fact that claimants have sought compensation from numerous funds as evidence of efforts to game the system. However, asbestos was everywhere. These companies acknowledge that and they acknowledge that their products were dangerous and they knew it. What’s more, there is no physical way to tell whether the asbestos that caused a person’s mesothelioma came from one company or another. So as long as these plaintiffs can prove that they were exposed to asbestos by the defendant and they now have an asbestos-related disease or ailment, the claim is legitimate.

One thing however that may be a real concern moving forward is the fact that assets from those trusts are being reduced at a rapid rate, despite the fact that those who seek a trust payout over a lawsuit will receive significantly less back in return. The median payout percentage has dropped to about 15 percent of what the trusts had at first figured would be the full value of a claim, in an effort to preserve as much as possible for future victims.

In order to ensure your claim is handled fairly and that you receive the compensation you deserve, contact an experienced mesothelioma plaintiff attorney today.
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Asbestos is a killer.

Manufacturers and employers knew this for decades, even as they continued to peddle products that contained the deadly material, putting both workers and consumers at risk.

Our Boston mesothelioma attorneys know that the most effective way to prevent asbestos-related diseases, such as asbestosis and mesothelioma, is to avoid asbestos. This is common sense, of course, but the problem is that the material was so widely used. It’s in flooring and roofing and insulation and drywall and textiles and duct connectors and plastics and gaskets and mastics – and so much more.

Even though it’s not as commonly used today, the remnants from more than a century of heavy use in the manufacturing, construction and automotive industries remain a constant modern threat for today’s workers.

Researchers at England’s University of Hertfordshire sought to mitigate this risk by creating a device that has sensors able to immediately detect asbestos particles in the air at the work site. The machine does not require samples to be sent to a laboratory to be evaluated – a process which is both time-consuming and costly.

This is key for those in the industry because employers who may have tried to cut safety corners in the past for the above-mentioned reasons may be more apt to use a device with instantaneous results. Ultimately, the hope is that this will be instrumental in saving lives.

A recent annual report published by a group of local unions and advocates indicated that newly-diagnosed cases of mesothelioma in Massachusetts were an average of 33 percent higher than the national average between 2005 and 2009. Although we don’t have updated figures for the last three years, there is no evidence of declining numbers.

Part of the reason it’s so high here is our rich history with the shipbuilding industry, which is notorious for heavy asbestos use. Although many of those shipyards have either shut down or stopped using asbestos, the threat remains real, particularly for those who work in demolition and repair.

A device like this could help to reduce future cases. According to media reports, the device employs lasers and magnets.

It works like this: The laser is beamed on a stream of particles in the air. That light then bounces off the particles in an intricate pattern that allows the user to detect single fibers that are too tiny for one to see with the naked eye. The fibers are then sucked in to the device through a magnetic field Then on the opposing side, lasers are beamed through that same air stream. If the fibers line up with the magnetic field, most likely, it’s asbestos.

The devices, which don’t yet have a brand name, are expected to be available to construction firms and renovation companies within the next year or so and will likely be sold for about $800 – making them affordable and a worthwhile investment for many firms.

Once a company is aware with certainty that asbestos is present, a professional mitigation process will need to take place. However, these handheld devices will allow for a jump start on the project.
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A new report released by a group effort involving some of the state’s most outspoken worker safety advocates reveals that mesothelioma remains a serious threat to Massachusetts workers.

In “Dying to Work in Massachusetts: Loss of Life and Limb in Massachusetts Workplaces,” researchers with the Massachusetts Coalition for Occupational Safety and Health and the Massachusetts AFL-CIO highlight a host of workplace dangers and the causes for the loss of 32 worker lives in our state last year.

Our Boston mesothelioma lawyers understand that “cancer” was listed as the second leading cause of work-related death in the state last year. That was just behind falling from a height and ahead of drowning at sea and motor vehicle incidents.

When it comes to work-related cancers, mesothelioma is among the deadliest. Caused by exposure to asbestos, it remains dormant for decades, revealing itself only in its advanced stages.

Average survival times at that point, according to the American Cancer Society, are between 4 and 18 months. A small portion – about 5 to 10 percent – live five years. Usually, those individuals have been diagnosed at a younger age.

The researchers combed through mesothelioma data pertaining to Massachusetts workers and found that in 2009 (the most recent year for which figures were available), 97 Massachusetts residents were diagnosed with malignant mesothelioma.

Between 2005 and 2009, the number of newly-diagnosed residents fluctuated from 84 to 109, averaging about 98 cases annually.

There are about 3,000 U.S. residents who receive the same diagnosis each year, but when you consider the relative size of our state and population, the rate of mesothelioma in Massachusetts is actually 33 percent higher than the national average.

For example, in 2009, there were 109 cases of mesothelioma diagnosed in Massachusetts. When adjusted for age, that was a rate of 19.4 per 1 million residents. Compare that to the U.S. rate, which was 14 per 1 million residents.

Similar trends have continued over the last several years. The rate here was 19 per 1 million in 2006, versus 12.8 per 1 million nationally. In 2007, it was 17.9 per 1 million in Massachusetts, versus 12.6 per 1 million in the U.S. In 2008, Massachusetts had an annual rate of 14.6 per 1 million, while the national rate was 12.5. In 2009, we know that Massachusetts had an annual rate of 17 per 1 million, though national figures aren’t yet available.

One of the reason our percentages are so much higher is because of the ship-building and repairing industry that was located inn Charlestown and Quincy. In a recent study of industries and jobs with the highest rates of mesothelioma, ship and boat building and repairing was No. 2, just behind the construction industry.

Other at-risk professions included insulation workers boiler-makers, as well as welders, electricians and plumbers.

And of course, these exposures are ongoing, despite the fact that active use of asbestos has tapered off significantly. That’s because it is still present in schools, factories and homes and government buildings.

Plus, asbestos is still used in flooring and vehicle brake shoes.

The Chair of the Massachusetts Teachers Association’s Environmental Safety Committee reporting that teachers and other school workers are also vulnerable to exposure, and are continuing to die of mesothelioma, as schools have failed to put adequate asbestos exposure protections in place. For example, two summers ago, the state’s Department of Labor Standards sent letters to school districts requesting their most recently-completed, federally-mandated asbestos inspection reports, due every three years. Only 55 percent of districts responded.

Of those that did respond, 1,000 were “severely deficient.” Only 5 had “no deficiencies.”
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A measure that would have reduced the growing threat of asbestos exposure in developing nations has failed.

Our Boston mesothelioma attorneys know that while this doesn’t directly affect our community, it marks a significant blow in the global fight to end asbestos-borne illnesses.

Even here in our own country, such measures have failed, as evidenced by the fact that it continues to be purchased and used in a select number of products throughout the U.S., although in far lesser quantities than what we saw just 20 or 30 years ago.

This particular effort involved a type of asbestos called chrysotile, or white asbestos. Despite asbestos defendants’ efforts to paint this material as somehow less dangerous than other forms, this is simply not the case. In fact, it’s the most commonly-encountered form of the material, accounting for some 95 percent of the asbestos currently in use in America. It is unambiguously considered to be a cancer-causing agent by both the International Agency on Research for Cancer and the U.S. Department of Health and Human Services. Chrysotile asbestos is the main cause of pleural mesothelioma.

It’s used quite a bit in cement, particularly in Asia, eastern Europe and Russia.

This type of asbestos had been recommended for inclusion in the Rotterdam Convention on Prior Informed Consent. This is an international treaty that basically serves to restrict the import/export of hazardous materials. The move would have required member countries to establish in writing whether they wanted to assume the risk of importing such dangerous substances. It’s been used before to regulate international trade of harmful pesticides and other chemicals.

It’s a move that made perfect sense for chrysotile, considering the World Health Organization’s assertion that nearly 110,000 people die globally each year from asbestosis and mesothelioma.

It’s so dangerous that it’s been banned in most developing countries – not including our own, where about 3,000 new cases of mesothelioma are diagnosed annually.

As it stands, five out of six forms of asbestos are already listed under the treaty.

This measure would have resulted in improved labeling of the asbestos, as well as increased caution when handling and it would have empowered governments as well as companies to impose better safety restrictions.

Yet it was blocked by Russia (the world’s top exporter of the material), as well as by India, Vietnam, Ukraine, Kazakhstan, Kyrgyzstan and Zimbabwe. The argument was that passing this measure would have increased the cost of both shipping and insurance.

So instead, hundreds of thousands of more people will continue to die – once again, because of greed.

Just as so many companies in the U.S. in the early-to-mid 20th Century, these nations know there is an inherent danger in this mineral and that it will ultimately kill those who come in contact with it. Once again, we see a deep deficit of moral and ethical responsibility to our fellow human beings. Profits, apparently, are more important than lives.
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It’s been about 40 years since asbestos was regularly used in the construction, automobile and manufacturing industries in the U.S.

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

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

It’s not.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The defense attempts to discredit doctors are feeble at most, and they reveal a level of desperation – particularly when the firm has made no effort to further scrutinize the medical records produced by that doctor and available at their disposal.
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