Topic: Asbestos

In comparison to many other countries, the United States can be defined as permissive when it comes
to asbestos.

Global Asbestos Awareness Week, running April 1-7, is an opportunity to increase awareness of asbestos and its dangers, advocate for a ban of asbestos, and promote prevention of asbestos-related diseases. So, where does the U.S. stand in the world on asbestos use and production? In the face of evidence demonstrating there is no safe level of asbestos exposure, the carcinogen has yet to be completely banned in the United States. In fact, it is still legal to import, use, and sell both raw asbestos and products made with it. The Environmental Protection Agency (EPA) presented a notice to regulate asbestos under the Toxic Substances Control Act in 1979, but in 1991, the U.S. Court of Appeals for the Fifth Circuit disagreed with the ban saying that the EPA did not prove the ban was the “least burdensome alternative” in protecting the public.

Asbestos Across the World
The World Health Organization (WHO) has asked all countries throughout the world to eliminate asbestos-related disease and advises that the most effective way to do this is by stopping the use of all asbestos. Worldwide use has declined by 55% from its peak of 4.7 metric tons per year in 1980. However, 2 million metric tons per year are still used worldwide. Other countries without bans include Russia, China, and India with Canada committing to a ban by the end of 2018. But the question remains, why does an industrialized country such as the United States still allow a known carcinogen to be utilized while 60 other countries in the European Union (EU), including the United Kingdom, have banned it? Banning asbestos in the United States has been attempted over the years, but the asbestos companies have aggressively fought back, thwarting attempts to rid America of this deadly carcinogen.

Asbestos in the United States

The United States is now dependent on foreign countries for the source of its asbestos as production stopped in 2002 as a result of a drop in demand related to health and liability issues. Domestic use of asbestos was roughly 803,000 metric tons in 1973 compared with 300 metric tons by 2017.

Issues with asbestos mainly arise when the fibers are disturbed and become airborne and are inhaled. The fibers, being large enough that they cannot be expelled from the lungs, are also sharp and penetrate the lungs. Health issues associated with asbestos include:

• Mesothelioma
• Lung Cancer
• Asbestosis

Because of the long latency periods of asbestos-related diseases, even in countries that banned the use of asbestos early in the 1990s, the number of deaths continues to grow. Halting the use of the carcinogen now will result in a decrease only after decades have gone by, but it will still save many others from future exposure and disease.

Global Asbestos Awareness week serves as a timely reminder of the necessity to remain vigilant in not only educating the public on the dangers of asbestos but continuing to push for a ban—the only true protection.

Asbestos in the United Kingdom

Based on reports linking exposure to asbestos dust and fibers with mesothelioma and asbestos-related lung cancer deaths, the British Government’s Health and Safety Executive (HSE) stands for the rigorous control of asbestos. The HSE is the body responsible for the regulation and enforcement of workplace health, safety, and welfare, as well as research into occupational risks in the UK. In fact, the HSE does not believe that any minimum threshold exists for exposure to asbestos below which a person is at zero risk of developing mesothelioma. To that end, it is illegal to supply any article containing asbestos, whether for money or free of charge, in the UK.

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 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.

There’s more than meets the eye to home renovations that lead to unintentional asbestos exposure.

You work. You spend years saving. You’re finally able to move into a home of your own. One unsuspecting afternoon there’s a fire with significant damage. You’re then told that your house is filled with asbestos. This is what happened to an Australian couple after living in the home that they had personally renovated.

They lived there from 1988 to 2015. During that time, they had ripped out the kitchen, redone the bathroom, and rebuilt the veranda. In March of this year, the wife was diagnosed with peritoneal mesothelioma, a highly aggressive tumor caused by asbestos exposure. Like many families across the world, this Melbourne, Australia couple was completely unaware of the asbestos looming beneath the floors, walls, and ceiling of their home.

What is Asbestos?

In the United States, houses built prior to the 1970s likely contain some building materials composed of asbestos, which is hazardous when it’s broken or worn out and the fibers are released. It is estimated that as much as two-thirds of the asbestos installed in the 1940s 1950s and 1960s is now reaching the end of its lifetime. When inhaled, the fibers lodge themselves into the outside membrane of the lungs and abdomen. The main types of disease that result from exposure are:

1. Asbestosis – permanent scarring of the lungs
2. Lung cancer – asbestos related tumors affecting the lungs
3. Malignant mesothelioma – cancer of the membrane covering the lungs and lining of the abdomen

All three diseases can take between 20 and 40 years to develop after exposure to asbestos. Because the initial symptoms (shortness of breath or a swollen abdomen from fluid build-up) are also seen in other common illnesses, mesothelioma is frequently misdiagnosed.

While many consider asbestos “yesterday’s story,” a cancer limited to old men who toiled in mines or dusty asbestos factories, the truth is that asbestos is still affecting people around the world today.

The first wave of victims, mostly miners and heavy industry workers who were exposed to asbestos on a daily basis, are, sadly, almost all dead. The second wave – tradesmen, construction workers, insulators, mechanics, and navy personnel – were mainly exposed before the 1980s.

Today, many of the new victims – a wider and younger range of sufferers – have been exposed during home renovation work. They are sometimes known as the third wave of sufferers.

How to Handle Your Residential Renovation

If you are planning on renovating your home yourself, you should consider hiring a licensed asbestos expert to inspect your home and arrange for removal of any hazardous asbestos-containing material for you. Should you hire a contractor to perform the work, or if you work for a contractor, it is important to make sure that proper procedures are followed to avoid potential asbestos exposure to you or your family. According to a 1980 NIOSH-OSHA report, there is no safe level of asbestos exposure.

Australia recently commemorated their National Asbestos Week. It is a reminder to us all across the world that, we must remain informed and vigilant about taking precaution when it comes to asbestos.

A proactive approach to banning and eliminating asbestos on ships prevents exposure and unnecessary illness and death.

Lack of uniformity can often lead to confusion, but when it involves a dangerous carcinogen such as asbestos, the likelihood of danger significantly increases as well. According to the International Convention for the Safety of Life at Sea (SOLAS), there are two options for ships:

1. If built after July 2002, the vessel’s flag registry, in conjunction with its classification society, issues a non-extendable exemption certificate, providing the owner with a three-year window in which to remove the asbestos.
2. If built prior to 2002, ships may contain asbestos but must have a hazardous materials’ register and management plan in place to cover any maintenance or repair work involving asbestos.

These two opposing options create a challenge in defining across-the-board safety standards to protect anyone working on or near sailing vessels. However, consistency and uniformity can be achieved by enforcing a complete ban of asbestos on all sailing vessels.

This requires that ships be assessed to ensure compliance. In the European Union alone, there are 30,000 ships requiring an IHM (Inventory of Hazardous Materials). Estimates are that 80% will contain some form of asbestos. The amount of asbestos found onboard depends on several factors, including where the ship was built. Ships can also be contaminated through items brought on board by the owners, despite assurances that they are asbestos free.

What is Asbestos?

Asbestos is a fibrous mineral known for its insulating and fire-retardant properties. For these reasons, asbestos was once a staple in most insulating products and many industrial and construction products. It was used in abundance at shipyards from coast to coast and on U.S. Navy ships such as those found in the Pearl Harbor Naval Shipyard. In addition to widespread use across the United States, asbestos was also used around the world, including in the Middle East. The most deadly asbestos-related conditions among naval veterans and maritime workers or family members are malignant mesothelioma and lung cancer.

What Does “Asbestos Free” Really Mean?

Because of varying international standards, the term “asbestos free” can be quite misleading. In the USA, for instance, it is up to a 1.0% content, while in the EU it is 0.1% and 0% in Australia. China has no official standard at all. This is a concerning issue because a lot of material and equipment originates from China where it is still legal to use asbestos (See crayons and cars). Chinese manufacturers may set up a production line to supply ”asbestos free” materials, but they could also be unaware of cross contamination in their factory emanating from other production lines that are producing items containing asbestos.

How to Ensure an Asbestos-Free Ship

1. Hire an accredited asbestos contractor to inspect for asbestos, or engage a qualified laboratory to test any materials you suspect may contain asbestos.
2. If asbestos is found, have a properly trained and accredited asbestos contractor or accredited company remove the contaminated materials.
3. Once your vessel is determined to be asbestos-free, initiate a quality management system that tests materials supplied to the ship to ensure that they are safe.

Veterans and Asbestos Exposure

Thirty percent of those diagnosed with mesothelioma annually are military veterans. Asbestos exposure is the only known cause of mesothelioma. Asbestos-containing materials were used extensively in U.S. Navy shipyards and military bases. Veterans with a history of long-term or intensive navy asbestos exposure are particularly susceptible to this life-threatening cancer. When asbestos dust is inhaled into the lungs, it starts a chain of events within the body that can lead to the development of mesothelioma over time.

Pennsylvania Appeals Court Affirms Ruling that the Pittsburgh Board of Public Education Cannot Hide Behind Governmental Immunity to Avoid Asbestos Liability

In January 2017, a Pennsylvania Appeals Court affirmed the ruling of the trial court that Pittsburgh’s Board of Public Education (“PBPE”) will not be able to use governmental immunity to escape liability for the death of a teacher from mesothelioma. The teacher, who worked at a Pittsburgh high school, was exposed to asbestos dust in the school. She died over 50 years later from mesothelioma. Her estate has brought a claim against PBPE, as well as a number of corporate entities.

What is the Claim?

The plaintiff’s claim alleges that PBPE, as well as the corporate entities at issue, are liable for the death of a school teacher. The teacher was occupationally exposed to asbestos while she taught in the Pittsburgh school district resulting in her developing mesothelioma. She died from the disease in 2013. The claim alleges that her exposure to asbestos dust came from pipe coverings on the steam and water pipes located throughout the school.

The School Board’s Attempt at Claiming Governmental Immunity

PBPE appealed the decision of the trial court which stated that it could not rely on governmental immunity to escape liability for the teacher’s asbestos exposure. PBPE’s contention was that as a governmental entity it could not be held liable for the teacher’s death. The school board argued that failing to provide a safe place to work does not fall within the scope of exceptions to governmental immunity, and therefore, PBPE should be granted summary judgment.

However, the panel for the Commonwealth Court of Pennsylvania affirmed the judgment of the trial court. The panel explained that public employers, even if they are governmental entities, have a common law duty to ensure that the work environment is safe. This includes maintaining safe structures free from asbestos dust. The attorney for the plaintiff applauded the decision, suggesting that this will allow people who have been truly injured to seek justice and compensation from the parties responsible for the injury.

As reported total’s digital issue of Pacific Business News, Galiher DeRobertis & Waxman has won a major judgment in Hawai‘i State Circuit Court against a San Francisco law firm that engaged in bad faith legal practices.

On May 1, the Hawai‘i state court ruled that a case over asbestos exposure at Pearl Harbor was tainted by an improper defense by San Francisco law firm Hugo Parker LLP in its representation of manufacturer Tate Andale Inc. In the case, Hugo Parker was alleged to have both engaged in discovery deceit and to have failed to investigate the cover-up of tens of thousands of documents that were improperly withheld by the manufacturer.

Judge Rhonda Nishimura ruled that the $1.12 million award reflected the costs incurred by plaintiffs solely through the defense’s misdeeds, stating, “Those fees and costs would not have been incurred in the absence of the sanctioned conduct.”

The case in question stems from a December 2016 ruling against Hugo Parker. Client Tate Andale was alleged to have caused injury to plaintiff William Schane. Schane had been diagnosed with Mesothelioma, which Plaintiffs alleged resulted from exposure to industrial products containing asbestos at Pearl Harbor’s submarine repair base. The manufacturer, Tate Andale, claimed that virtually none of the firm’s products ever contained asbestos.

After attorneys at the Galiher law firm uncovered evidence of asbestos in Tate Andale products, Hugo Parker attorneys repeatedly claimed that documents requested by plaintiffs did not exist, could not be located or were for products that did not contain asbestos.

When compelled to comply with the Galiher law firm’s disclosure requests, Hugo Parker ultimately produced more than 60,000 records that had been culpably withheld. Not only had the historical documents requested by plaintiffs in discovery been readily available all along, the trove revealed the existence of asbestos in a product the company had previously claimed had none.

Ilana Waxman, managing partner of Galiher DeRobertis & Waxman, which represented the plaintiffs, said, “Tate Andale and its CEO had clearly decided to commit perjury as a legal strategy. This included altering some of its own documents to make it look like they hadn’t contained asbestos. Its defense attorneys did not follow the rules of legal ethics; rather, they opted to try to help their client cover up its historical sales of asbestos-containing products to the U.S. Navy and Pearl Harbor.”

The Pearl Harbor shipyard has been a major source of asbestos exposure in Hawai‘i, affecting thousands of residents, workers and their families in the islands according to court records. Mesothelima is a devastating and incurable cancer caused by exposure to asbestos. The disease can take several decades to develop so exposure many years ago continues to cause disease in Navy veteran and shipyard workers today.

About Galiher DeRobertis & Waxman
Galiher DeRobertis & Waxman is a Hawai‘i law firm founded in 1978 and nationally recognized for its work on behalf of victims of mesothelioma and asbestos cancer. The firm also serves Hawai‘i residents in cases of elder abuse, serious personal injury and wrongful death. The firm has represented hundreds of mesothelioma clients, assisting in cases in over 40 states and several foreign countries.

A range of proposed changes to the civil justice system under the Trump administration would threaten the rights of plaintiffs in personal injury cases; deprive US citizens of their Seventh Amendment right to a trial by jury; and make it far more difficult for individual workers and consumers to hold large corporations accountable in court.

 
Most concerning, the agenda could include a series of restrictive and invasive procedures and litigation requirements for clients in class actions, pharmaceutical cases, and asbestos cases. The proposed legislation would require that trusts established to fund asbestos claims would be required to report any payments made to plaintiffs, putting personal and financial information at risk. A push to make it harder for plaintiffs to keep cases in state courts would also infringe on the rights of personal injury plaintiffs.

We encourage all citizens to pay attentions to these developments and let your representatives know your opinions on them.