March 2018 | Galiher DeRobertis & Waxman LLP

Cezar Chavez Day–The Commonwealth Not Helping Common People

Posted on March 31, 2018August 24, 2023 by joe

America remembers Cezar Chavez’s work to fight for the lives of farmworkers and the working poor.

On March 31, the United States recognizes Cesar Chavez Day as an opportunity to celebrate the lasting legacy of civil rights leader and labor activist Cesar Chavez. A farm worker himself, Chavez later went on to become co-founder of the National Farm Workers Association.

Perhaps most famously known for the coining the phrase “Sí, se puede” (“Yes, one can” or “Yes, it can be done”), remembrance of Chavez and the values that he stood for continues to have meaning for people across the United States, particularly for those who have connections to farmworkers or have ever experienced disenfranchisement.

For the Common Good

A commonwealth is defined as a political community founded for the common good. Chavez’s ”Commonwealth” speech given November 4, 1984, laid out his vision for farm workers and Latinos in general—a vision of hope. However, it also highlighted the extreme disparity between farmworkers and the people for whom they work while simultaneously raising the question of whether the United States truly is a commonwealth for all. At the time, thousands of farmworkers were living “under savage conditions”:

Babies born to migrant workers suffered 25% higher infant mortality than the rest of the population.
A farmworker’s average life expectancy was 49 years—compared to 73 years for the average American.
Child labor was common in many farming regions.
Malnutrition among migrant worker children was 10 times higher than the national rate.

It has now been over 30 years since the “Commonwealth” speech was delivered, but workplace pesticide exposure remains an issue as pesticides have harmful effects on the body including:

Decreased fertility
Spontaneous abortion
Stillbirth
Birth Defects
Developmental abnormalities

When farmworkers, such as pickers and harvesters, enter the fields after they are sprayed but prior to the pesticides settling, the farmworkers are at high risk for coming into direct contact with pesticide residues which can lead to absorption. Likewise, airborne pesticides can easily be inhaled.

Cezar Chavez’s dream was “to overthrow a farm labor system in this nation which treats farm workers as if they were not important human beings.” Because of the nature of their work, pickers and harvesters are some of the first people to exhibit signs of pesticide poisoning when safety precautions are lacking.

Farmworkers depend on farm owners and labor contractors to implement safe handling rules and provide a safe environment in which to work.

Galiher DeRobertis & Waxman Fights for Justice

“Now is the time for all of us to stand as a family and demand a response in the name of decency. Too much is at stake. This is a battle that none of us can afford to lose because it is a fight for the future of America. It is a fight we can win and it is a fight that everyone can join.” -Cesar Chavez

Galiher DeRobertis & Waxman believes that justice is for all, and as such works to provide representation that will fight to see justice done. No one should have to risk the health of their unborn child while working.

Farmworkers on commercial farms are no different. Farm owners and labor contractors have a responsibility to keep laborers safe, but all too often that responsibility is neglected. Those who were exposed to pesticides and had a child with birth defects deserve justice.

When Consumer Safety Does Not Seem to Matter

Posted on March 16, 2018August 24, 2023 by joe

AAJ article highlights the ongoing problem with corporations choosing money over honesty and consumer safety.

The American Association for Justice’s (AAJ) newest report highlights corporate misconduct and how it impacts the average U.S. citizen’s everyday life. A consistent lack of transparency from these corporations demonstrates how “when corporations put profits before safety and customer and employee welfare, and the regulatory system proves unable to force change, the civil justice system is the last line of defense to protect consumers.”

Failure to Warn

Companies have both a moral and legal responsibility to warn consumers of potential dangers that can result from their products. Agrochemical company Monsanto decided to go in a different direction. Company emails that came to light as part of litigation detail how a Monsanto executive suggested ghostwriting scientific reports. Those reports eventually led the U.S. Environmental Protection Agency (EPA) to conclude that Roundup, a weed killer composed of glyphosate, did not cause cancer.

Lack of Transparency

When a company markets products that are intended to be used for the well-being of its consumers but fails to inform consumers of its products’ safety hazards, that lack of transparency can have dire consequences. Johnson & Johnson (J&J) faced six of the seven largest dangerous-product verdicts in 2016 and faced numerous more in 2017. The following areas of litigation recently involved J&J:

Talc
Over 5,000 lawsuits involving talc that potentially causes ovarian cancer have been brought against J&J. Documents brought to light during litigation indicate that in the 1970s, J&J was aware of asbestos fiber contamination in its talc products.

- Xarelto

This blood thinner, also known as rivaroxaban, has been associated with more than 370 deaths according to the Food and Drug Administration (FDA). Nevertheless, J&J continues to profit making over $2.29 billion from this drug alone.

Risperdal
Risperdal is an antipsychotic drug used to treat certain mental/mood disorders, such as schizophrenia, bipolar disorder, and irritability associated with autism. The pharmaceutical company also illegally marketed it as an aide to manage the behavior of elderly nursing home residents, people with mental disabilities, and children. Scientific evidence has shown that teens who use Risperdal are five times more likely to develop gynecomastia—the appearance of female breast tissue. In some of the over 18,000 cases against J&J, the company is accused of concealing evidence that shows gynecomastia rates with Risperdal use are much higher than the company initially claimed.

Transvaginal Mesh
Ethicon, a J&J division, marketed its transvaginal mesh as a low-cost way to treat urinary incontinence for women. What the company failed to disclose is the serious risk of injury associated with the product.

Artificial Hips
When DePuy, a J&J division, first introduced their product in 2005, doctors reported shedding of metallic debris leading to infection, fractures, and nerve damage. Company executives talked about fixing the design flaw, but in the end, chose not to. The artificial hips even failed internal tests, and 40 percent were predicted to fail within five years of implantation. Even after surgeons working with DePuy halted use of the hips, the company continued selling them.

DePuy did not stop sales of the artificial hips until 2010 and then blamed it on poor sales rather than medical complications. Subsequently, juries have returned substantial verdicts in trials where plaintiffs have claimed DePuy failed to properly warn patients and doctors that the devices would fail prematurely.

Aggressive Marketing Tactics

McKesson Corporation has turned opioids into a $13 billion-a-year industry by distributing pain medicines across the country even though the company was aware of the drugs’ highly addictive nature and the fact that they are sold on the black market. Opioids work by attaching to and activating opioid pain receptor proteins, which are found on nerve cells in the brain, spinal cord, gastrointestinal tract, and other organs in the body. When these drugs attach to their receptors, they inhibit the transmission of pain signals.

Distributors like McKesson have overlooked federal regulations requiring companies to report suspicious activity involving narcotic orders such as unusual size and/or frequency. Instead of following these regulations, the AAJ reports that opioid distributors “[f]looded [the] market with enough opioids to keep every person in America medicated around the clock for three weeks” and lined their pockets with money from the sales. According to a 2016 Washington Post report, at least 13 drug distributors knew or should have known that hundreds of millions of prescription opioids were hitting the black market, but continued to send the drugs.” Even when pressed by government regulators to have better oversight concerning distribution, McKesson spent over $100 million lobbying to pass a law that would make it almost impossible for the Drug Enforcement Agency to freeze any questionable narcotics shipments.

Time Ticks as Claim Window Nears Closing in Libby, Montana

Posted on March 6, 2018August 24, 2023 by joe

Time is running out as the statute of limitations winds down for victims of asbestos related illnesses.

The three year statute of limitations allowing possible recovery for those who developed asbestos-related diseases as a result of living and working in Libby, Montana is set to expire on February 25, 2018. While the statute of limitations in Montana to file a personal injury claim is three years from the date of diagnosis, because of W.R. Grace & Co.’s bankruptcy filing, the statute did not begin until February 25, 2015.

The Back Story Over three quarters of the vermiculite in the world was produced from a mine in Libby. The mineral was discovered to be in a mountain in 1919 and bought by W.R. Grace & Co. in 1963. It turned out to be, what seemed at the time, a perfect material for loft and wall insulation, fire-proofing, and soil conditioner. However, along with the vermiculite was substantial contamination with a dangerous form of asbestos occurring naturally within the mineral.

The Time Line In the beginning, lawsuits were given a narrow time to file as the statute of limitations in Montana required plaintiffs to file personal or wrongful death cases within three years of learning about any facts leading them to file claim. However, in 1995, the Montana Supreme Court ruled that workers who became sick could still file, permitting they were able to show the company harmed them intentionally.

In 1999, news reports publicized a direct connection between the vermiculite mine and the many people who were ill and even dying due to exposure to asbestos dust in Libby. In 2001, W.R. Grace & Co. filed for bankruptcy protection, but now that the company has come out of its bankruptcy, anyone diagnosed prior to February 25, 2015, with an asbestos-related disease who lived in Lincoln County for at least six months has until February 25 of this year to file a claim.

What is Asbestos? Known for its fire-retardant properties, asbestos is a fibrous material that was once used in insulating and construction products across the U.S. It creates a fine dust when handled and inhaled that can cause deadly illnesses.

The problem is that the two most commonly noted asbestos-related diseases, asbestosis and mesothelioma, have latency periods of up to 40 years. This means that some people may not be diagnosed until after the statute of limitations runs out and without them even being aware they have any damages. As such, many people who have yet to be diagnosed with an asbestos-related illness, will have no recompense after February 25th.

Asbestosis is a lung disease specifically caused by inhaling asbestos dust. It can be fatal in some cases as it produces inflammation and scarring in one’s lungs and can be an early sign of mesothelioma. Malignant Mesothelioma is a cancer in which malignant cells line the chest, abdominal cavity, or heart. On average, a mesothelioma patient is between 50 and 70 years of age. Even during trial Dr. Alan Whitehouse, a pulmonologist diagnosing Libby area patients said, “I don’t think we’ll see the last of these until 2030 and maybe longer.”

This is because mine workers were not the only people at risk for developing a deadly asbestos related disease such as pleural mesothelioma. When mine workers came home from work, they brought with them asbestos-laden clothes, unwittingly exposing their family members to asbestos dust particles. Perhaps even worse is the fact that children in Libby played amongst the vermiculite slag that W.R. Grace donated to four schools to make running tracks, an ice rink and two junior baseball pitches.

Johnson & Johnson Memorandum Suggests Dangers in Baby Powder

Posted on March 1, 2018August 24, 2023 by joe

Johnson & Johnson demonstrates lack of transparency and consistency in its communication with the public.

One question in one memo has become a proverbial Pandora’s box for Johnson & Johnson. The memorandum in question addressed the issue of if their baby powder contained even the smallest amount of asbestos, how much asbestos would a baby inhale when dusted with the powder? But perhaps it was the answer that even today is much more troubling: the baby’s exposure to the deadly substance would be below the legal limit for that of an asbestos miner.

This memo, along with other company communications, raises the question of whether Johnson & Johnson’s products were contaminated by asbestos, and after using the products containing talc powders, whether consumers were unknowingly inhaling enough asbestos fibers to lead to mesothelioma. After all, why would Johnson & Johnson executives ponder such questions if they were not absolutely sure of the fact that their baby powder did not contain the carcinogen?

Internal vs. External Communication

Although the company has gone out of its way to assure the public of the safety of its products, documents highlight a lack of transparency along with potential cover-ups. The problem began in the 1970s when researchers at both New York University and Mount Sinai Hospital both reported finding asbestos in several talc-based powders and cosmetics. These are not only products that are used on one’s person, but they are also products that parents sometimes use on their children.

At the time, Johnson & Johnson put out a press release assuring the public that “there is no asbestos contained in the powder manufactured by Johnson & Johnson.” This was in stark contrast to internal company memos stating an upgrade was needed in terms of quality control on talc baby powder as it relates to potential asbestos content and that there may be “sub-trace quantities” of minerals that “might be classified as asbestos fiber.” Additional records indicated Johnson & Johnson conducted experiments with the purpose of determining methods to eliminate asbestos from talc ores.

The Fight for Industry Regulation

The U. S. Food and Drug Administration (FDA) has a limited level of authority over cosmetics. Along with other industry companies, Johnson & Johnson was able to evade public concern and calls for FDA regulation by creating a testing procedure that would confirm that the talc was free of asbestos. After a meeting with the FDA in January 1974, a Johnson & Johnson executive wrote, “Our very preliminary calculation indicates that substantial asbestos can be allowed safely in a baby powder.”

At the time, multiple officials disagreed with the calculation calling it “ludicrous” and noting that no mother would purposely use a product on her baby that she knew to contain a carcinogen. Continuing to operate in a culture of secrecy, a Johnson & Johnson executive again recommended industry testing rather than testing by the FDA.

Today, experts in the area still agree that there is no safe level of asbestos exposure. And because only a small number of talcum products have been tested, according to the FDA, the results “do not prove that most or all talc or talc-containing cosmetic products currently marketed in the United State are likely to be free of asbestos contamination.”

What is Mesothelioma?

The whole point of all this talk about talc contamination is because of the potential for consumers to develop mesothelioma, a cancer in which malignant cancer cells are found in the sac that lines the chest, abdominal cavity, or heart. Roughly 3,200 U.S. residents are diagnosed with this aggressive form of cancer per year. Asbestos exposure is the only known cause. Although the majority of mesothelioma sufferers have workplace exposure, others have only limited contact with possible ongoing exposure through talc-based products.