Mesothelioma Lawyers Blog

An asbestos products manufacturer contracted by the U.S. Navy in the 1950s and 1960s is being sued by a man who later developed mesothelioma.

Unfortunately, our Boston mesothelioma lawyers understand the company may have a good chance of ducking responsibility, given the Seventh Circuit Court of Appeals’ recent ruling to remand the case back to federal court, where the firm hopes to obtain immunity.

In Ruppel v. CBS Corporation, the issue is whether a contractor for the government has a “colorable federal defense” in accordance with 28 U.S.C. 1442(a)(1). This law holds that when a civil action against the U.S. government or any agency or officer of the U.S. government or any person acting under that officer or agency is filed in state court, it may be removed by that party to a U.S. district (federal) court.

The reason the defendant in this case wants the lawsuit to be heard in federal court is that it plans to make the argument that it is entitled to immunity as a government contractor. The company, which at the time was doing business as Westinghouse, doesn’t deny that it made and sold asbestos products to the Navy. However, it maintains that this was done in accordance with direct specifications from the Navy. The company further asserts that the Navy had known of the dangers of asbestos since the early 1920s, and yet ordered these products anyway. (Specifically, we’re talking about turbines.)

The plaintiff alleges that he was exposed to the asbestos from the company both during his Navy service and later when he oversaw the construction of a Navy ship as a civilian. From start to finish, this spanned from 1946 through 1971.

But as is typical with mesothelioma cases, the plaintiff did not become ill until decades later. Early this year, he filed a civil lawsuit in state court in Illinois against CBS, as well as 40 other defendants for his mesothelioma diagnosis, contending he contracted the disease as a result of exposure to asbestos products that were made, sold, distributed or installed by each of the defendants.

CBS moved to have the case remanded to federal court under the above-stated federal statute. That request was granted, but then the plaintiff appealed to the federal judge, saying he was only arguing a failure to warn, for which the Department of Defense does not provide immunity. The federal judge granted this request without allowing the defense the opportunity to respond.

CBS then appealed to the Seventh Circuit, which reversed the federal judge’s decision and ping-ponged the case back to federal court. The appellate court said that while the plaintiff had mentioned the failure to warn issue in his complaint, the core of the complaint had more to do with his actual exposure.

This move, of course, gives the defendant a strategic advantage. It shows too that the legal teams that represent these firms are savvy and aggressive. You need someone your side who can match them pound-for-pound – and beat them.
Continue reading

A five-year study will be devoted to learning more about how two communities are working to recover from widespread asbestos exposure after a local asbestos factory was shuttered.

As our Boston mesothelioma lawyers understand it, the University of Pennsylvania, Penn Medicine, was awarded a $1.2 million grant from the National Institutes of Health to move forward with the research.

Specifically, the researchers are looking at the communities of South and West Ambler, just north of Philadelphia in Pennsylvania. There, asbestos isn’t just a past or passing concern. It continues to be a very real problem, due to the extremely high levels of the product that was used throughout the region.

Asbestos, as you probably know, is the sole cause of a rare and deadly form of cancer known as mesothelioma. A person who is exposed to asbestos through airborne particles or fibers is at high risk for developing mesothelioma or asbestosis, a similar disease. Both ailments are fatal, though asbestosis is more of a chronic condition, while mesothelioma kills very quickly. In both cases, a sufferer will not know they are sick until years or decades after exposure.

According to researchers, these communities have been at risk since the late 1880s, when the asbestos factory was first founded. Those who live or have lived there have had to contend with either occupational exposure or environmental exposure. In these areas, the Pennsylvania Department of Health has already deemed these residents to be at a much higher risk of developing mesothelioma than those living elsewhere in Pennsylvania.

One of the associate professors preparing to conduct the study said that not only are residents suffering an existing health risk, but ironically, the entire community suffered a horrible financial blow when the asbestos factory shut down.

The researchers are aiming to develop a storehouse of information relating to asbestos-related health risks, as well as profile individuals who were affected by either working or living near the asbestos factory. The effort will also provide an opportunity for an information exchange among scientists and residents. And it will serve as a case study for communities that are facing similar challenges – and there are several of them throughout the United States. In Massachusetts, for example, researchers believe there are a total of 44 asbestos exposure sites, such as the A.C. Lawrence Factory in Peabody, which has been sued multiple times by former workers who developed mesothelioma.

The major components of this project are set to include:

• A documentation of the history through recorded interviews of low-income Italian and African American immigrant asbestos workers, as well as their families and neighbors;
• Development of an accessible repository of news accounts, documents, life stories, photographs and scientific data surrounding the communities, which will ultimately be used as a resource for researchers, students and community activists.

While the researchers hope this study will result in a wealth of information for anyone who wishes to access it, they said they have already discovered in the pilot portion of the study that sharing their stories has been incredibly healing for mesothelioma sufferers and their families.
Continue reading

The state supreme court in Virginia has ruled that the widow of a man who died after exposure to asbestos by a private shipping company while he was serving in the Navy is allowed to sue the shipbuilder.

Our Boston mesothelioma lawyers understand the issue of contention in this case was whether the widow was barred from seeking compensation due to the Virginia Workers’ Compensation Act.

At issue in Dorthe Crisp Gibbs v. Newport News Shipbuilding & Drydock Co., was whether his injuries and wrongful death fell within the purview of the state’s worker’s compensation act. This act would have provided exclusive remedy to the plaintiff. However, the Navy and other armed forces don’t fall under the act.

Here is why this case was so tricky:

In the early 1960s, a man named Kenneth Gibbs was enlisted as a seaman, specifically, an electronics technician, on active duty with the U.S. Navy.

In 1962, the Navy contracted with Newport News Shipbuilding and Drydock Company to buy two nuclear submarines, costing approximately $46.4 million each. This ships were to be built at the Shipyard and then delivered to the Navy when they were finished. During the course of that construction, however, the federal government would have access to the ship for both training and testing purposes.

In the middle of 1965, Gibbs was assigned to one of these in-construction ships for extensive inspection purposes, as it was to be completed and delivered within six months. It was during his time aboard this vessel that he was exposed to airborne asbestos, which is the only known cause of mesothelioma.

Mesothelioma is a cancer that lies dormant for many years, but when it strikes, it is aggressive and fatal.

During the course of his employment, Gibbs was made to install asbestos products, exposing him (and numerous other workers) to large quantities of asbestos dust and fibers.

In 2008, after Gibbs received diagnosis of this terminal illness, he filed suit against the shipbuilder. He died early the following year.

The defendants answered the lawsuit with the contention that the Workers’ Compensation remedy was the widow’s only legal recourse. Of course, this was a significant amount less than the company would pay if it lost in civil litigation. The district court sided with the defendant, holding that the act plainly applies. The case was dismissed with prejudice.

However, upon appeal, the state supreme court justices ruled that the Navy had not accepted the provisions of the act, and therefore employees of the Navy weren’t subject to the act. The lower court’s decision was reversed, paving the way for Gibbs’ widow to file suit.

Had he worked directly for the shipyard, as opposed to the Navy, the outcome of the case may have been different.

It’s not an automatic win, but it appears a strong case can be made, based on the facts as laid forth in past court filings.

Simply being granted the opportunity to bring your case before the court is an important first step.
Continue reading

Massachusetts Attorney General Martha Coakley announced recently that her office had reached a settlement in a lawsuit against a man who didn’t properly remove asbestos from roofing shingles as he worked to renovate numerous New Bedford homes.

Our Boston mesothelioma lawyers understand that this individual’s actions put not only himself and his employees at risk of illness, but also may have risked the long-term health of the homeowners and neighbors.

The defendant, from Acushnet, reportedly owns two of those buildings, which he in turn rents out to tenants.

According to the lawsuit, the renovations were conducted between late fall 2009 and the spring of 2011. The defendant hired contractors to do the renovations, part of which involved replacing the roof.

It’s not clear whether the defendant realized when the renovations started that asbestos was present. But if he did not, he had a responsibility to find out before work began.

The Massachusetts Department of Environmental Protection holds in 310 CMR 7.15 that all owners and/or operators (this includes building owners, renovation contractors, heating and plumbing contractors and flooring contractors) must determine all asbestos-containing material present at the site – friable or not – and whether those materials are going to be impacted by the proposed work. This must be done before a single hammer is swung or nail pounded.

Failure to pinpoint and remove all the asbestos-containing material before it is impacted by renovation can result in significant risk of exposure, which means those doing the work are going to incur higher costs for clean-up, decontamination, disposal and monitoring.

Of course, many try to sidestep this process altogether by simply not following the law while hoping they don’t get caught.

But in this case, it appears there were some very watchful neighbors who alerted authorities to the safety concerns. Among the conduct being carried out by the workers:

• Contractors were spotted power washing dirty asbestos shingles before they ever removed them. This caused asbestos debris to be blasted into the air and onto the ground in the area where the work was being conducted.
• Contractors were spotted dropping asbestos shingles out the window from several stories up. Those pieces would then shatter in a cloud of dust upon falling to the ground.
• Contractors were seen covering old asbestos-laden shingles with new ones. They were also drilling into the old shingles in order to install heating vents. All of this resulted in the release of airborne asbestos fibers – which are deadly.

The lawsuit additionally stated that the defendant did not follow through in his responsibility to cover, seal or label containers holding asbestos at the construction site.

The suit had originally sought fines of $25,000 for each day that the defendant failed to follow proper asbestos abatement laws and/or failed to take proper safety precautions.

The exact details of the settlement were not released by Coakley’s office.
Continue reading

One of Australia’s biggest electrician unions has issued a warning saying hundreds of members have died from mesothelioma after decades of working on meter boards containing asbestos.

The Electrical Trades Union has called on the individual states there to carry out extensive audits on the equipment of all government-owned buildings and homes with meters built before 1983 in order to ensure the safety of its members.

Boston mesothelioma lawyers know this is not the first time electricians have been identified as a group at high risk for developing the deadly disease.

We’ve talked a lot in our Massachusetts Mesothelioma Lawyer’s Blog about those who previously worked in shipbuilding and automotive manufacturing. But electricians are at equal risk.

In addition to being used as a heat insulator and fire-retardant, asbestos was also commonly used to reinforce or bind cement and plastic. So it was often used in building materials like drywall, plaster, floor tiles, roofing and insulation. Additionally, it was sometimes used in electrical panel partitions, electrical cloth and electric wiring insulation. The level of risk depends on when it was manufactured. The older the material is, the more likely it is to contain asbestos.

From 1990 to 1999, those who had previously been in the construction industry – including electricians – accounted for 24 percent of all mesothelioma deaths. Electricians accounted for 4.4 percent of those.

According to the U.S. Occupational Safety and Health Administration, the most common safety risks for electricians are falls, electrocution, exposure to overhead objects and exposure airborne contaminants, including asbestos.

There have been a handful of large lawsuits filed over the last 10 years against companies that allegedly exposed electricians to asbestos, causing them to develop mesothelioma in their later years. In 2006, an Ohio appellate court ruled that General Motors was aware that one electrician was being endangered by exposure to asbestos in wiring and the insulation on steam pipes. The following year, the family of a California electrician who died of mesothelioma settled for $2.3 million with six defendants. And then in 2010, a Philadelphia jury found Rockwell Automation Inc. (i.e., Allen-Bradley Company) liable in the asbestos-related death of a Navy electrician’s mate, and awarded his family $6.5 million. He had died in 2008 at age 71, less than a year after he was diagnosed with malignant pleural mesothelioma.

In Australia, a warning was sent out after it was confirmed that an electrician in the southern region of the country was exposed to the dust while working on a meter.

Although asbestos isn’t common in American electric meters, it is common in a lot of older structures. While it generally won’t pose a risk if it’s encapsulated or undisturbed, electricians are often required to rewire buildings, which means they need to crawl through or reach into areas where they might disturb the asbestos.
Continue reading