(A prototype asbestos detector unit with the lid removed.  Credit: Paul Kaye, University of Hertfordshire, UK.)

New scientific tools keep arriving. Now, one of them is a working prototype for quick "on-site" testing for asbestos fibers. The device provides relatively instant feedback,  which of course is desirable to avoid the expenses and delays inherent in taking traditional air samples and sending them out for analysis. The research work was funded by an EU grant, which makes great sense since Europe is still seeing growing waves of mesotheliomas. The device is said to be 18 months away from production, with the sale price said to perhaps end up at seven or eight hundred dollars per machine. The Optics Express article indicates the machine does its best work with amphibole fibers. 

The full article is online and free in Optics Express: The International Online Journal of Optics.  A trade journal summary of the article also is online.  Thanks to Bob Wassman of  Rosetta Genomics for seeing this story and passing it along. Set out below is the "how it works" portion of the trade press article:

Set out below is the conclusion section of the full Optics Express article: 

_____________________________________________________________________________________

If the device ends up on the market and is effective, imagine the implications for keeping people healthy, and for litigation.  

 

• Print
• Comments
• Trackbacks
• Share Link

Continually evolving "facts"  are one of the unique parts of some mass tort litigation. Thus, plane crashes, boat wrecks, and sky bridge collapses typically happen only once. For drug cases, there are times a drug is pulled is off the market. In contrast, there also are times when the facts evolve. For example, a drug is beings sold even while plaintiffs are suing and claiming it's defective. The same evolving fact pattern  often exists for litigation over industrial products, such as natural mineral and man made fibers.   When minerals are commercially marketable products, most producing countries enjoy the economic fruits of production and sales.  Therefore, the ceaseless arguments about asbestos mining and sales will go on again this summer at Rotterdam, as highlighted at a new post on survivingmesothelioma.com. The meetings also will be used to produce papers and positions later cited in medico-legal papers and/or testimony. And the "asbestos media" covers it all these days. 

• Print
• Comments
• Trackbacks
• Share Link

Set out below are the 2012 MARF Grants for molecular biology research on mesothelioma. Defense lawyers should note both the topics and the funders. 

 

Hegmans, Joost - Larry Davis Memorial Grant Erasmus MC Macrophage recruitment/polarization as a prognostic and therapeutic target Tumor-associated macrophages are a potential target in malignant mesothelioma (MM). These potent immune cells are present in variable amounts in MM tissue (up to 60% of tumor mass) and are associated with tumor progression and bad prognosis in other cancer types. We plan to investigate if macrophages can serve as a prognostic factor in mesothelioma and if targeting or modulating of these cells could improve current treatments. Cheung, Mitchell - The Anderson Family Grant The Research Institute of Fox Chase Cancer Center BAP1 Mesothelioma Mouse Models and Personalized Therapeutics We recently reported two families with hereditary mutations in the BAP1 tumor suppressor gene that are predisposed to the development of malignant mesothelioma (MM) and other cancers (Nature Genetics 43:1022-5, 2011). While both families showed a high incidence of MM, other tumors seen in the two families differed. For example, eye melanomas were seen in one family but not in the other, possibly related to the different location of the BAP1 mutation seen in each family. We have generated two novel mouse models that mimic the BAP1 mutations seen in these two families. We will determine if the mutant mice develop spontaneous tumors, including MM, and if the two mouse models develop a different overall spectrum of tumor types. We will also determine if mutant mice develop MMs more quickly and more aggressively than genetically normal mice following exposure to asbestos. Besides inherited alterations in BAP1, acquired (“somatic”) BAP1 mutations contribute to tumor formation in a sizable proportion (20-60%) of MM patients. Thus, we propose additional experiments to take advantage of mutant BAP1 by finding ways to selectively kill cells having this genetic change. This information would potentially provide rationale for “personalizing” the therapy of a given MM patient based on BAP1 mutation status of their tumor. Germane to this, we will test if a specific class or combination of anti-tumor drugs kills BAP1 mutant MM cells more readily than in those lacking this alteration. Barbone, Dario - Belluck & Fox Grant The Regents of the University of California, San Francisco Role of ANXA4, ASS1 & MVP Genes in Mesothelioma 3D Multicellular Resistance Cancers fail to respond to clinical treatments such as chemotherapy because they possess a high resistance to apoptotic cell death. Discovering how cancers resist cell death could lead directly to steps that could bypass these survival defenses and help treatments to be more effective. When cells are studied in the laboratory, they are usually studied in flat 2D monolayers, where many mechanisms of resistance can be studied. However, solid tumors, such as malignant mesothelioma, grow as 3D masses. When tumor cells grow into 3D structures, they can acquire an additional level of resistance, described as multi-cellular resistance. We believe that the study of the resistance acquired by cells in 3D may be valuable in improving clinical treatments. Indeed, acquisition by tumor cells of multi-cellular resistance may explain many instances in which treatments that are found to be effective in laboratories fail to work in the clinic. In this study, we will investigate how three genes, ANXA4, ASS1 and MVP, which we have correlated to multicellular resistance, underlie this clinically-relevant chemoresistance. We have found two candidate drugs that can reduce their expression levels and restore chemosensitivity of spheroids and we aim to validate them as adjunct to chemotherapy. These studies will not only clarify the role of these genes in mesothelioma and provide therapeutic insights but also advance the use of spheroids as a more realistic model for studying tumor biology. Giancotti, Filippo - The Law Offices of Peter G. Angelos Grant Memorial Sloan-Kettering Cancer Center Preclinical Efficacy of a TOR/PI-3K inhibitor in Malignant Mesothelioma Inactivation of the tumor suppressor Merlin/NF2 occurs in a large fraction of malignant mesothelioma (MM). We have shown that loss of Merlin leads to hyperactivation of TOR signaling in MM line. Our Preliminary Studies suggest the dual PI-3K/TOR kinase inhibitor GDC-0980 produces a strong inhibition of proliferation in MM cells carrying NF2 mutations. We propose to test the efficacy of GDC-0980 in MM lines carrying or not NF2 mutations. If successful, these experiments will provide a strong rationale for the development of large, biomarker-driven clinical trials of GDC-0980. Kim, Il-Jin - The Bankhead Family Fund of the Kazan, McClain, Abrams, Fernandez, Lyons, Greenwood, Oberman, Satterley & Bosl Foundation Grant The Regents of the University of California, San Francisco Fusion genes as therapeutic targets in malignant pleural mesothelioma Malignant pleural mesothelioma (MPM) is a very aggressive and one of the worst human cancers. A median survival still remains at around 15% in MPM patients and no personalized targeted therapy is currently available. Several chromosomal alterations and deletions have been identified in MPM, such as deletion/inactivation of CDKN2A, NF2, and BAP1. Most of these mutations and deletions are inactivating events. Thus, it is important to identify oncogenic drivers causing MPM to develop therapeutic molecular targets. We have done copy number analysis of three of the most commonly deleted genes (CDKN2A, NF2, and BAP1) in around 60 MPM samples and have identified triple-negative (TN) MPM patients having no deletion in any of the three genes. In our preliminary studies, these TN MPM patients showed different genetic expression and deletion patterns than other samples with deletions. Novel fusion and tumor-specific isoform candidates were identified in TN MPM patients using genome wide microarray analysis. Thus, we hypothesize that these TN MPM patients have different genetic characteristics and novel oncogenic fusions may contribute to MPM development. We have two aims in this project. First, we will perform a transcriptome (RNA)-seq to identify our novel fusion and isoform candidates in TN MPM. Second, the identified fusions and tumor-specific isoform will be validated with RT-PCR and 5’-RACE methods. The success of this project may lead to the development of novel therapeutic target. CRAB/ISLAC proposal - Judith L. Lagana Memorial Grant Proposal for a Pilot Study on the Use of Tumor Volume Measurement from CT Scans for the Clinical Staging of Malignant Pleural Mesothelioma (MPM) This project would establish a standardized method for clinicians to conduct volumetric CT scans and to use that volumetric data for enhancing the staging and classification of newly diagnosed MPM. This is expected to allow for improved assessment of disease stage and to optimize the treatment decisions. The accurate diagnosis of MPM is critical in determining the most effective treatment for patients. This study will be used to determine the feasibility of developing a multicenter network to use volumetric CT scans as a uniform measurement of clinical T stage in newly diagnosed MPM.

 

 

• Print
• Comments
• Trackbacks
• Share Link

Increasing numbers of plaintiff's law firms are sponsoring molecular biology research through MARF. Sponsors for its March 2013 meeting were: 

• Print
• Comments
• Trackbacks
• Share Link

Funded mainly by asbestos victims and asbestos plaintiff's lawyers, The Mesothelioma Applied Research Foundation continues to fund molecular research mesothelioma, and holds increasingly frequent meetings that include research presentations. The most recent meeting was in March 2013 and included multiple sessions on the genetics and molecular biology of mesothelioma. The full agenda is online here. Set out below are the main sessions on science - note especially the final "closed" session on science. 

The speakers included some significant physicians at significant cancer centers.  One is Dr. Joseph Testa,  a mesothelioma genetic mutation researcher at the Fox Chase Cancer Center.  Another is Dr. Lee Krug of Memorial Sloan Kettering - he chairs its mesothelioma program. 

 

 

• Print
• Comments
• Trackbacks
• Share Link

Asbestos litigation never fails to provide unique fact patterns. And it seems that old mass screenings never die. Those topics both percolate through a blog post about the curious fact that the team physician for the Baltimore Orioles also had a 1995 (and later) practice diagnosing "asbestosis" in union workers represented by an asbestos plaintiff's lawyer, Peter Angelos.  The Orioles, not coincidentally, are owned by Peter Angelos. So, defendants are scrutinizing the links and the medical judgments. 

• Print
• Comments
• Trackbacks
• Share Link

The examples of lung cancer marketing continue to proliferate. This new one focuses on shipyards. 

• Print
• Comments
• Trackbacks
• Share Link

In Australia, some legislators seek to create an agency focused only on asbestos. The story is in a March 21, 2013 online issue of the Sydney Morning Herald. 

• Print
• Comments
• Trackbacks
• Share Link

The plaintiff's bar - and others - continue to pour on the Internet press releases and blog posts seeking to generate asbestos-litigation claims regarding lung cancers. Another example is online and pasted below. 

______________________________________________________________________________

Lung Cancer Asbestos Victims Center Now Fears that 1000's of Lung Cancer Victims Who Were Exposed to Asbestos at their Workplace Never Get Compensated - A Sad Truth

The Lung Cancer Asbestos Victims Center says, "We believe it is a sad truth that the vast majority of lung cancer victims in the United States, who were exposed to asbestos in their workplace never get a dime, because they assumed the only type of compensation was for victims of mesothelioma, as opposed to all types of lung caner. If you have any type of lung cancer, or if you have a family member who has been diagnosed with lung cancer please call us immediately at 866-714-6466, if the victim was also exposed to asbestos in their place of work, especially if they are a nonsmoker." http://LungCancerAsbestosVictimsCenter.com

• Print
• Comments
• Trackbacks
• Share Link

Cholangiocarcinoma is more commonly known as bile duct cancer. Due to recent medical findings on relative risks and claimed exposures, the disease is being publicized as an asbestos-related cancer.  For example, see this post from the Kazan McClain web site. Or, see this post from asbestos.com. Then look at a website focused on support and advocacy for persons with the cholangiocarcinoma.  You will find group members posting about trying to survey its members for asbestos exposures.

The big picture point? The intersections between science and law accelerate and expand every day. 

• Print
• Comments
• Trackbacks
• Share Link

The Sokolove asbestos media never ends - a new one tied to car shows is pasted below and online. 

________________________________________

• Print
• Comments
• Trackbacks
• Share Link

Are you trying to put the US Navy sheet on a verdict sheet for allocation of fault in an asbestos case involving a person who served onboard a US Navy ship?  Plaintiff's firm Cooney & Conway issued a new asbestos press release that explains why the Navy should be on the verdict sheet. It's online here and pasted below, although they forgot to mention the amphibole factor. 

 

 

 

 

• Print
• Comments
• Trackbacks
• Share Link

As pointed out  in this prior post, lung cancer claims exceeded mesothelioma claims in Madison County in 2012. Part of why this is happening arises from significantly increased and targeted advertising directed at persons with "any kind of lung cancer."  A new example is online here, and pasted below.  

So, what are asbestos defendants doing in response in terms of bringing big tobacco into the cases? Mainly, nothing.

Doing nothing is a fine game plan for ending up in chapter 11 or 7. 

 

________________________________________________________________________________

 

 

• Print
• Comments
• Trackbacks
• Share Link

Asbestos awareness grows, and unions are ever more vocal. That said, the conversation is not always logical or accurate. Consider this article about Australian unions seeking "asbestos free" Australia. But asbestos is natural, and blowing in the wind, everywhere. Indeed, Australia includes former working asbestos mines. The approach of these unions brings to mind a famous phrase:  Ready, shoot, aim. 

• Print
• Comments
• Trackbacks
• Share Link

Asbestos litigation, cancer and IARC are not without politics. In a February 2, 2013 Lancet article online, the author describes various U.S. litigation expert witnesses for plaintiff launching an attack on IARC's decisions related to participation in a conference addressing Russian asbestos fibers and the "chrysotile" defense. Sad to say, it is often hard to separate science and politics, on all sides of issues.  For Us lawyers, the key quote from the article is as follows: 

"In a letter to IARC's Director-General Wild signed by Richard Lemen (retired US Assistant Surgeon General and adjunct professor at the Rollins School of Public Health, Emory University, Atlanta, GA, USA), Arthur Frank (Drexel University School of Public Health, Philadelphia, PA, USA), and Barry Castleman (author of Asbestos Medical and Legal Aspects), the authors argue that “Kovalevskiy is a leading promoter of use of chrysotile asbestos. He testified before the Supreme Court of Brazil in August 2012, as witness on behalf of the Brazilian Chrysotile Institute. He testified that there is no evidence whatsoever to justify banning the use of chrysotile asbestos; that he opposes placing chrysotile asbestos on the Rotterdam Convention's List of Hazardous Substances; that, in the past, harm to health was caused by the use of amphibole asbestos and excessive, prolonged exposure levels to chrysotile asbestos, but that, today, chrysotile asbestos is causing no harm to health in Russia. We consider that it is unacceptable that a scientist, who is a promoter of chrysotile asbestos use, should be a lead scientist on an IARC research project regarding chrysotile asbestos."

• Print
• Comments
• Trackbacks
• Share Link

In asbestos litigation, the "chrysotile defense" is a loose term covering a wide range of arguments that generally relate to chrysotile fibers relative lack of toxicity when compared to amphibole fibers. The arguments are not becoming simpler as globalization moves forward. For example, for many years, most (not all) arguments about chrysotile fibers were tied to studies of disease in persons who worked with or were otherwise "exposed" to fiber from mines in Canada, Europe and South Africa. However, over the last few years, the scientific literature increasingly has included articles regarding chrysotile fibers mined and used in China and other nations that were seldom mentioned in the past. A recent article on a "mesothelioma" web page highlights a recent article focused on China, as follows: 

• Print
• Comments
• Trackbacks
• Share Link

Drivers continue to accrue for more global asbestos claiming. For example, a recent paper reports on the relative lack of successful asbestos claiming in South Africa. And, news of the article was disseminated through an actually useful article on a "mesothelioma" web page.  The article as to South African claiming is set out below:

• Print
• Comments
• Trackbacks
• Share Link

Madison County, Illinois continues to thrive as the largest annual asbestos litigation venue for new cancer cases. During 2012, Madison County received a bumper crop of 1,563 new case filings. 

Informed observers are providing further insights into the numbers. For example, the Madison County case filings by disease were recently presented by Jonathan Lively, a partner in Segal McCambridge Singer & Mahoney. As Jonathan pointed out, make sure not to miss the fact that lung cancer filings exceeded mesothelioma filings: 

The Madison County Record also provided a new online article with additional data on Madison County's 2012 cases. According to the Record, the numbers are as follows. Note especially the influx from Napoli Bern, a firm that's actively seeking out and filing lung cancer cases. 

• Print
• Comments
• Trackbacks
• Share Link

The tort litigation industry blossomed in part because litigation is similar to software in the sense that both involve repeated use of specialized knowledge. Repeated use of specialized knowledge creates economic leverage. In turn, economic leverage creates more opportunities for profits, as illustrated by financiers at banks and investment houses.  The asbestos litigation industry exemplifies the reusability point as lawsuits time and again involve use of  more or less the same set of facts about the "history of asbestos use" or the facts related to a particular defendant.  

Today, the use and reuse of asbestos litigation information is growing even more specific as marketing efforts focus on particular types of asbestos products within a specific industry. Thus, in the past, the word "mesothelioma" dominated advertising to potential claimants, and there were few efforts to focus on particular industries. In contrast, industry-specific advertising is growing within the asbestos litigation industry. Consider, for example, asbestos litigation arising from "drilling mud," a product used drilling for oil and gas. In decades past, asbestos lawyers in Chicago were essentially clueless about drilling mud  - instead, we knew about pipe insulation and various other products. Today, in contrast, there is advertising specific to drilling mud and basic information on drilling mud sits on web pages available around the world, as illustrated by this page from LawyersandSettlements.com. Add in language translation engines built into web browsers (e.g.Google Translate), and a global litigation industry is increasingly possible. 

• Print
• Comments
• Trackbacks
• Share Link

After starting out in big law, Terry Johnson changed his practice to become a Chicago-area plaintiff's lawyer focused on asbestos cases. His website provides a significant account of history of Chicago-area  asbestos-litigation history. Although the history is Terry-centric (as one would expect), it still provides an interesting review of the Chicago's asbestos litigation past. 

Of special note for me, Terry's asbestos history begins with the same case that started my asbestos years - the Edward Krull case in federal court before Milton Shadur, a well-regarded and perhaps even legendary Chicago judge. Although the entire case ultimately settled, Judge Shadur influenced the course of Illinois asbestos-litigation by writing a post-settlement opinion explaining why he had previously denied Celotex's motion for summary judgment on punitive damages. Celotex protested the post-settlement ruling and appealed to the 7th Circuit, but lost based on the principles related to nunc pro tunc orders. 

_____________________________________________________________________________

 

• Print
• Comments
• Trackbacks
• Share Link

Asbestos screenings continue in the US. An Ohio news station reported Cleveland area screenings by a UAW local apparently tied to a GM plant. The story was published on January 18, 2013:

"One of the unfortunate legacies of the area's industrial past is the potential exposure workers have had to asbestos over the years. Recently, leaders with United Autoworkers 1112 arranged for screenings to be conducted at their union hall on Reuther Drive S.W. in Warren.

 

• Print
• Comments
• Trackbacks
• Share Link

It's back, and with more science than before. It's the 13th Annual Asbestos Claims & Litigation Conference from the American Conference Institute, in Philadelphia, on Thursday January 30 and Friday February 1, 2013.  Yours truly is one of the co-chairs, and it's a pleasure to report on the conference's increased focus on science relevant to asbestos litigation. The science is especially relevant as state appellate courts keep refining (or not) the proofs required to substantiate an asbestos cancer claim. 

The central science panel topic ? Low dose science and the ongoing saga of the "chrysotile defense." This science of course is central to underlying cases. It's also relevant to asbestos bankruptcies. Just two weeks ago in the Bondex bankruptcy, Dr. Feingold and Dr. Welch testified about the low dose issues and the "chrysotile defense." Beyond the science panel, I'll be covering some of the new science on mesothelioma biomarkers, and posing some questions about whether science might actually obtain some respect in bankruptcy court. 

The line-up includes the following doctors: 

 

• Print
• Comments
• Trackbacks
• Share Link

Some asbestos defendants declared victory after recent appellate decisions, including the recent Nevada Supreme Court opinion in Holcomb. The Holcomb opinion adopted the "Lohrman standard" that requires asbestos plaintiffs to provide proof  of  "exposure" based on work that was "frequent, regular and proximate" to use of asbestos.  But it's a faux victory, as explained in David Oliver's insightful post at Mass Torts: State of the Art. Note especially David's focus on the court's refusal to embrace much science. The point is highlighted by his prior post on the Texas Supreme Court opinion in Flores and the Bostic opinion from an intermediate appellate court in Texas. With that done, consider David's post on the latest asbestos "victory," the Virginia Supreme Court's ruling in Boomer. Was it really a victory? Maybe, for some extremely marginal defendants. And, the opinion may lead to more debates about when a cancer arose since the court suggested that as a defense. 

Bottom lines? Translational medicine seeks to move scientific findings into actual patient care. We need more translational law to move science into the jury room. The American Law Institute, courts and legislators need more help from more scientists.  That said, manufacturers and insurers need to understand they may not like all the outcomes. More or less every day, molecular biologists are opening new windows into disease processes.   

• Print
• Comments
• Trackbacks
• Share Link

A recent online news article asserts that about 80 former Bendix plant workers in Australia (Ballarat) are signing up with a plaintiff's law firm after working with both chrysotile and crocidolite fibers while making friction products. The operation was taken over by FMP Group, as in Federal-Mogul bankruptcy fame.

If there are future claims, it might be fun to try to watch someone impose the Federal-Mogul bankruptcy plan terms against the Australian plant workers. I tried the Federal-Mogul bankruptcy case to verdict and certainly do not recall the Futures Representative doing any advocacy or estimation work for Australian workers in Ballarat.

The Australian article reports the following:

• Print
• Comments
• Trackbacks
• Share Link

Madison County, Illinois, and its adjacent sibling county (St. Clair)  are back in the news due to Southern Illinois' role as by far the preferred venue for new asbestos-case filings, primarily because the counties (especially Madison) offer so many trial dates, which are the key to generating settlements and ending cases.  Other factors in Madison County include standardized discovery, a document depository full of years of history,  and the remaining vestiges of Illinois' absurd Lipke rule on proving up exposures to products other than the products made by the defendant(s) in trial.  

The Madison County news begins with asbestos case filings in 2012 shooting up to a lofty 1,563 from 953 in 2011, as reported by the Madison County Record. The data published by the Circuit Clerk does not break down filings by disease. But, most involved in the litigation know that the filing numbers were somewhat influenced by a surge in cases involving lung cancers that are not mesotheliomas.  

The other news is that the Supreme Court of Illinois affirmatively ordered a forum non conveniens dismissal of an asbestos case in Fennell v. Illinois Central Railroad. In Fennell, the Court held that the trial court abused its discretion when it denied defendant Illinois Central’s forum non conveniens motion in a case arising from a Mississippi resident who worked mainly in Mississippi, and previously filed an asbestos suit in Mississippi. The proper outcome was fairly obvious, but nonetheless had eluded the trial judge and a majority of the panel of the intermediate appellate court. 

Fennell is both encouraging and discouraging. The case does not announce any new legal rules, and instead simply applies law to facts. The real issue is whether defendants bring more well-documented forum motions in proper cases, and whether trial judges feel the need to grant them. Or, defendants may refrain from bringing motions but demand a discount for settling cases that could be attacked on forum grounds.  

Madison County, Illinois remains a juridiction that's been mismanaged for decades by some but not all insurers and defendants. Virtually all of the thinking members of the asbestos world knew that Fennell was going up to the state supreme court, but nonetheless it was by far a record year for Madison County's new asbestos case filings. Time will tell if things will shift very much, or if Madison County will remain the focal point for asbestos litigation in the United States. 

.

• Print
• Comments
• Trackbacks
• Share Link

Various media reports state that A.M. Best has issued a new (pay per view) report that projects an additional  $10 billion of asbestos losses for property and casualty insurers. That brings the total projected loss to $85 billion, but that's only for insurers. Thus, Best's estimate excludes the massive spending by manufacturers and premises owners for asbestos claims that were not insureds, or for which the insurers have simply refused to pay claims. Thus, total asbestos expenses by now surely are at or over $100 billion. According to the reports:

 

• Print
• Comments
• Trackbacks
• Share Link

Evidence continues to grow regarding cigarette smoking significantly increasing the risk of contracting lung cancer amont person with "exposure" to asbestos fibers. The evidence should be important  due to continuing increases in lawsuits filed against "asbestos defendants" by persons stricken by non-mesothelioma lung cancer. The suits typically, however, do not name tobacco sellers as defendants, despite the certain connection between smoking and lung cancers. 

Some of the latest evidence is a newly published case-control study based on analysis for Health Canada. The study reports on analysis of questionnaires completed during the period 1994-1997. The study is online here in a provisional format, and is titled:   Occupational exposure to asbestos and lung cancer in men: evidence from a population-based case-control study in eight Canadian provinces, BMC Cancer 2012, 12:595 doi:10.1186/1471-2407-12-595. Set out below is the conclusion regarding the impact of cigarette smoking:

Stratified analyses of highest attained asbestos exposure across cigarette pack years categories are presented in Table 3. There was an approximate two-fold increase in risk among those with ‘medium’ or ‘high’ occupational exposure to asbestos relative to those with no such exposure in each of the three pack-year categories. This  is consistent with a multiplicative relationship between the two factors. Those who had at least 40 pack-years of smoking and were exposed to medium or high asbestos levels had the highest risk of lung cancer; relative to those with no asbestos exposure, and less than 10 cigarette pack-years, their risk nearly 38-fold higher (OR=38.59, 95% CI=10.78-138.08) (Table 4). The calculated values of the S and V indices were 2.10 and 0.99 respectively, supporting the notion that the interaction between asbestos and smoking is multiplicative. (emphasis added)

 

 

 

• Print
• Comments
• Trackbacks
• Share Link

Asbestos litigation outcomes in mesothelioma cases are often influenced by whether the person with cancer is alive to testify at trial, and the amount of time between case filing and the time of trial. As medicine improves, persons with mesotheliomas are living longer. All persons involved in the litigation need to understand the changing landscape for treatment of mesotheliomas and consider the implications.

The following abstract highlights survival times for persons with stage III disease. The data is from from a new paper published in Europe. The paper is titled: Factors predicting poor survival after lung-sparing radical pleurectomy of IMIG stage III malignant pleural mesothelioma, and is published in the European Journal of Cardio-Thoracic Surgery. Note the outcomes and timelines highlighted below:

"A total of 78 patients (66.3 ± 2.5 years, 65 males) underwent RP followed by chemoradiation. A total of 42 (54%) had IMIG stage III. Mortality and morbidity were 4.8 and 31%, respectively. Median survival and 5-year survival were 21 months and 28%, respectively, for stage III patients. Progression-free survival was 11 months. The sites of failure were predominantly locoregional (20/42, 47.6%)."

• Print
• Comments
• Trackbacks
• Share Link

A recent paper provides a useful working summary of historic US federal regulations on asbestos use (OSHA and NESHAP), as well as ACGIH guidelines. The paper is titled:  Current and Historical American Asbestos Regulations. The paper's authors are  Robert D. Brownson, Kristi K. Warner, and Jessie E. Rosenthal. The paper is an updated and expanded version of a paper of the same title published by Robert D. Brownson in 1998.

• Print
• Comments
• Trackbacks
• Share Link

Just for grins, here is an article about a Canadian asbestos mine becoming a training ground for mechanical rovers.  

• Print
• Comments
• Trackbacks
• Share Link

The Asbestos Liability Risk Analysis (ALRA) Group continues to publish annual summaries of state by state asbestos claims data. The most recent paper was released on October 15, 2012,  and is online here.The data set apparently is drawn from records of the clients of the the authors of the paper - they are defense lawyers. The data set falls short of perfect, and does not cover bankruptcy trust claiming data, but it's still a useful group of reports. 

• Print
• Comments
• Trackbacks
• Share Link

Mt. Sinai is a  famous place for asbestos lawyers. So, it's worth mentioning that Carl Icahn is giving the school $ 200 million, and it's being renamed in his honor. "The gift had been nurtured over nine years of dinners and discussions with Mr. Icahn, a medical school trustee, and would be heavily devoted to building research capability."

• Print
• Comments
• Trackbacks
• Share Link

The Internet continues as a powerful force for linking up some persons with mesothelioma and some plaintiff's lawyers. According to the blog post here, "mesothelioma settlement" is the highest priced phrase on Google AdWords. The blog post links to source blogs. Some years back, rumor had it that some defense people began doing click throughs to create expenses for plaintiff's firms. 

• Print
• Comments
• Trackbacks
• Share Link

Australia's James Hardie company is about to experience being depicted as a corporate bad actor in a new made for tv movie debuting this weekend in Australia. The movie is Devil's Dust, and is about asbestos inhalation killing Bernie Banton when he developed and died of mesothelioma. The movies also is depicted as a saga of a "corporate cover-up," with book writer Matt Peacock having written a highly critical book attacking the company's handling of asbestos. The making of movie has been in the Australian media for some time. The movie is now starting to garner attention in the US through asbestos web sites. 

As a general rule, toxic tort defendants do not like their issues becoming part of mass market entertainment. But it does happen. Erin Brockovich and Civil Action come to mind as examples. To date, I cannot find any corporate press release or other public  "corporate level" actions by James Hardie regarding the upcoming movie. Suppose you were part of the C suite - what would you do, or not do? 

 

• Print
• Comments
• Trackbacks
• Share Link

One of the challenges of mass tort litigation is that the landscape shifts in ways that no one can control because other defendants and plaintiffs take cases to trial and create results. The point is highlighted yet again by some of this week's news in asbestos litigation in the US.

In Miami, the Defense Research Institute is holding its annual conference on asbestos litigation. It's a quality gathering and hundreds of defense lawyers and insurance company representatives show up to learn, network and have some fun. Meanwhile, on the other side of the country, a Los Angeles jury returned another large verdict for compensatory and punitive damages in a mesothelioma case, as described in the press release partially pasted below:

• Print
• Comments
• Trackbacks
• Share Link

Law and science intersect in court rooms in jury trials involving personal injury claims by person arguing that a cancer was caused by a substance or a drug. Ironically, at this intersection, law and science are in some ways going in opposite directions.

How so? On the science and medicine side, we are entering the age of personalized medicine. For persons fortunate enough to obtain treatment at a true, national cancer center of excellence (e.g. MD Anderson), this new age often means treatments unique to that person's genome and the genomic specifics of the tumor. In court, however, there are some observable efforts to move away from individual analyses and towards consolidation of multiple personal injury cases for trial.

Consolidation of personal injury cases for trial always has been and remains both controversial and complex. However, consolidations are back on the front burner in some jurisdictions. Why? One reason is that some insurers and some defendants refuse to settle cases until faced with real trial dates, and judges need to keep their cases moving.  Pressures for consolidation also arise because state court budget cuts mean that courts lack resources and want to resolve cases in larger groups. And, of course plaintiffs almost always want trial dates and consolidations to increase the pressure on defendants and insurers to resolve cases. 

Against that background, consider a New York trial consolidation order from August 2012 for various "asbestos cancer cases."  Unlike too many orders, this one actually does set out some of the specifics of each case, and so provides a relatively useful example of contours of the cases being combined for trial. One point for the reader to see is that the cases really are not very much alike except that they involve "the same" diseases allegedly caused by asbestos. And, today, the level of analysis for "sameness of disease" is not very deep - in fact, it's pretty much assumed, as illustrated by the order. On the other hand, doctors working at centers of excellence increasingly see the "same"  disease (e.g. mesothelioma) as falling into different general subtypes, along with individual genomic variations. 

Conclusion? The intersections between law and science are growing as cancer rates increase and more lawsuits are filed, but lawyers and doctors/scientists often see the world in very different ways. Lawyers need to spend more time understanding the science, and finding better ways to litigate and resolve cancer personal injury cases. And, doctors/researchers need to help us see better see which differences matter to them and why. Then we all ought to help judges and legislators understand, and we all ought to try to revisit old assumptions about how to get things done so that we improve the cancer trial intersections between law and science. 

• Print
• Comments
• Trackbacks
• Share Link

Molecular biology is universal. It's also moving incredibly fast these days. Indeed, the rapid pace of biology makes law look especially turtle-like. Over the next few years, the science of cancer will create significant, new issues for lawyers and their clients. Therefore, it's appropriate that molecular biology and cancer have a lead place role in an upcoming asbestos litigation conference in London.

Specifics? Dr. Arnold Brody is a keynote speaker for LexisNexis at its International Asbestos Forum    on18 and19 October 2012 at a conference venue close to beautiful Hyde Park. Dr. Brody's 60 minute talk will focus on how/why asbestos causes cancer, as opposed to asbestosis. It's a highly relevant topic as more and more plaintiffs assert that more and more cancers are caused by asbestos.  You can obtain a 20% discount on the registration fee by using my initials (KH) as a discount code.

I'll be speaking on the panel on the future of asbestos litigation, as well as presenting analysis on future mesothelioma trends based on epidemiological work by  Dr. Peto and others. The numbers are daunting for decades to come - well more than 350,000 mesotheliomas. And that's not even counting tumors to arise in Russia and China. 

Are you thinking nothing much is new in asbestos cancer and science?  Are you thinking everyone still dies from mesothelioma in less than a year? It may be time to get out and hear some new data. Earlier this month, about 475 physicians and researchers met in Boston to talk - only - about asbestos and disease - for three days - at the iMig Conference. And they were full days - morning sessions started at 8, and were followed by workshop sessions and then poster sessions. Afternoons ran at the same pace, and usually until 6.

Cancer research is racing ahead. Yes, too many people are still dying in less than a year. But,growing numbers of persons with mesothelioma are not dying, or at least surviving for, in some cases, over five years. MicroRNA sequences, for example, are helping doctors understand disease progression of mesothelioma, which translates into providing more accurate clinical information, even if sometimes the information is that death is far too likely. Other scientists see possibilities for new genomic therapies. In short, much science work is in progress and there will be consequences.  I'd suggest it's worth your time to come out and listen to thoughts on some of the possibilities. 

 

• Print
• Comments
• Trackbacks
• Share Link

An Economist article is here on Canada dropping its support for mining raw asbestos fibers. The result makes it a good day for the International Ban Asbestos Secretariat headed up by Laurie Kazan-Allen. The group's activities can be followed at the ibas website or by following Laurie on Twitter. 

• Print
• Comments
• Trackbacks
• Share Link

NPR reports that support for asbestos mining is going to be dropped by Canada's new premier. 

• Print
• Comments
• Trackbacks
• Share Link

NPR reports that support for asbestos mining is going to be dropped by Canada's new premier. 

• Print
• Comments
• Trackbacks
• Share Link

Asbestos risks, causes, claiming and compensation are increasingly frequent topics around the globe. The Japan Times published an August 17, 2012 editorial encouraging additional asbestos compensation. The editorial followed up on an August 2012 verdict in Japan holding Kubota Corporation liable for a mesothelioma death of a person who worked near a Kubota facility.

A side note. The online version of the Japan Times editorial included in the adjoining space an ad for the Roger Worthington law firm that is one of the big online advertisers for mesothelioma cases. The point ? Mesothelioma is now a universal word used to reach people around the globe.

The editorial states the following:

• Print
• Comments
• Trackbacks
• Share Link

A new article in the Journal of Pathology presents molecular biology findings related to the oft-litigated question of whether chrystotile fibers can cause mesothelioma. In this instance, the focus is on peritoneal mesothelioma.

The research findings are from scientists in Asia. The authors conclude that their findings show that chysotile causes peritoneal mesothelioma. Right or wrong, the article highlights the future:  ever increasing amounts of molecular biology findings from scientists around the globe. 

The paper is here (pay per view). The abstract states:

 

• Print
• Comments
• Trackbacks
• Share Link

A Japanese newspaper brings news that a trial court in Japan (Kobe District Court) has just held Kubota Corporation liable to pay about 32 million yen (about $ 407,000) for the mesothelioma death of an 80 year old man who worked close to Kubota's factory which used amphibole fibers. The government also was a defendant, but was exonerated. The judge ruled against a second mesothelioma plaintiff, a woman who shopped and lived in a wider area.

Asbestos use in Japan is chronicled at length in Asbestos Disaster: Lessons from Japan's Experience by Kenichi Miyamoto, Morinaga Kenji,  and Mori Hiroyuki. The World Asbestos Report includes much more detail on Kubata and asbestos. 

• Print
• Comments
• Trackbacks
• Share Link

Despite too little funding, researchers continue to make progress on the molecular biology of mesothelioma, and possible new treatment options. Indeed, a very recent discussion among several of the leading edge mesothelioma researchers took place when the Mesothelioma Applied Research Foundation (MARF) held its annual Meso Foundation Symposium on July 12-13 in Washington, DC. The meeting received sponsorship support from several of the national plaintiff's firms representing persons suffering from asbestos-related diseases, and some pharma firms. The list of sponsors (disappointingly) does not include any insurers or defendants in the litigation. 

The majority of symposium presentations were video recorded and are available online at no charge: 2012 Symposium Video Presentations.  Set out below are some of the molecular biology highlights from MARF's blue ribbon panel presentations on the results of mesothelioma research. The summary was prepared by Michael Tenuto, a second year law student who writes with the benefit of an undergraduate degree in biochemistry, and two years of medical school before turning to law. Mike's been working for my firm this summer as a law clerk; it's a great pleasure to work with Mike. 

• Print
• Comments
• Trackbacks
• Share Link

Quebec has announced it will invest $58 million with private industry in order to cause the reopening of the chrysotile asbestos mine known as the Jeffrey Mine. The desire for jobs is powerful - whether or not it makes for good policy and choices is another matter. Prior posts here and here address some of the asbestos-specific issues raised by this decision. This prior post raises issues regarding how international law can or should intersect with global-scale sales of known carcinogens, such as tobacco and asbestos. 

 

• Print
• Comments
• Trackbacks
• Share Link

Case management orders (CMOs) are an important part of managing mass tort litigation.  CMOs arise because mass tort cases tend to cluster in groups in particular courts.  The forum court typically enters a case management order after negotiation between counsel for each side.  Years ago, case management orders were novel and negotiations sometimes were contentious.  Today, many of the procedures are well accepted, and so disputes and debates are often limited to specific points, such as whether the time to trial should be 10 months or 13 months.

This blog post collects some but not all CMOs from asbestos cases in variois forums in the United States.  We will happily add additional CMOs if you send the CMO  to khartley@lspgrp.com, preferably with a summary in the style below.   

Note also that CMOs tend to evolve, as do related court procedures.  Accordingly, a current CMO is not necessarily the only or final word on case management in a particular jurisdiction.  Defense side lawyer at Shook Hardy recently co-authored an article on recent changes in some asbestos case management orders.  The article appears in  the May 16, 2012, issue of Mealey’s Litigation Report: Asbestos.  The article is titled “Asbestos Litigation ‘Magnet’ Courts Alter Processes: More Changes on the Horizon,” and provides an overview of changes adopted or pending in several states’ courts.  The changes vary by jurisdiction, and include new calendaring procedures,  coordination of all asbestos matters before a single judge and a requirement that asbestos damage awards be offset by amounts plaintiffs receive under asbestos bankruptcy trusts. The article  is available at no charge on Shook Hardy's website – here.

California

Alameda County:  The order is known as Case Management Order Asbestos.

Los Angeles:  The CMO process is essentially managed through a standardized case management order entered in each case.  The order is titled Trial Setting Order for Asbestos Litigation Preference Cases.

Delaware

A pair of orders are relevant.  Standing Order No. 1 (amended April 29, 2011) prescribes many of the specifics.  General Scheduling Order No. 1 (amended March 9, 2011) provides the time schedule for moving forward to trial.

Illinois

Cook County has a May 4, 2009 order with attached exhibits that was entered to consolidate and supersede the many prior CMO iterations entered by various presiding asbestos judges over the years.  The order is titled Master Case Management Order No. 19.  Exhibit A is “Deemed Counterclaim.”  Exhibit B is the generic master asbestos discovery that was attached in an effort to provide more transparency regarding the process and requirements to new litigants.  Exhibit C is a generic discovery schedule.

Madison County has a comprehensive 73-page order with attached exhibits that applies to all asbestos cases on file or to be filed in the future.  The order is titled Standing Case Management Order for All Asbestos Personal Injury Cases.  Exhibit 1 is “Medicare Reporting Forms.”  Exhibit 2 is “Standardized Interrogatories.”  Exhibit 3 is “Standardized Requests for Production.”  Exhibit 4 is “Standardized Jury Questionnaire.”  Exhibit 5 is “Standardized Jury Questionnaire for Lung Cancer Cases.” 

Massachusetts

Massachusetts has used a series of “Pre-trial Order.”  The governing order of May 2012 is Pre-Trial Order No. 9, a 48-page behemoth with various attached exhibits.  Exhibit B is an “Acknowledgment of Service.”  Exhibit C is “Model Cross-Claim of Defendants.”  Exhibit D is “Affidavit of Notice of Claim.”  Exhibit E is “Statement Requesting Transfer to the Inactive Asbestos Docket.”  Exhibit F is “Plaintiff’s Disclosure Form.”  Exhibit G is the “Massachusetts Asbestos Litigation Trial Preparation Timeline.”

Massachusetts also has a proposed series of Addendums to Pre-Trial Order No. 9.  They are here.  Most are related to Medicare.  Proposed new Section XIII sets out trial months and trial lists.

Pennsylvania

Allegheny County has a Case Management Order for Asbestos Cases Placed at Issue by Plaintiff and a Case Management Order for Asbestos Cases Pending Three Years or More That Have Not Been Placed at Issue.

Cambria County has an Order dated November 30, 2011

Philadelphia has two currently relevant papers.  One is a May 24, 2011 Order regarding Meicare.  The second is a paper titled General Court Regulation No. 2012-01

Northampton County has a September 12, 2011 Order of Court.

West Virginia

Kanawha County, West Virginia has a detailed 36-page order titled 2012 Asbestos Case Management Order with Attached Exhibits.  Appendix A is “West Virginia County Listing File & Serve Abbreviations.”  Appendix B is a chart detailing deadlines and descriptions of activity.  Appendix C is [missing].  Appendix D is “Plaintiff’s Fact Sheet.”  Appendix E is “Witness Disclosure.” Appendix F is “Authorization for Employment Information.”

There also is a January 3, 2012 Order Amending Case Management Order.  This order deals with substituted plaintiffs.

 

• Print
• Comments
• Trackbacks
• Share Link

In mass tort bankruptcies, fighting like heck can sometimes work well, especially  when done intelligently with few budget limits and an end game in mind. W.R. Grace did that as part of an almost ended 11 year journey through Chapter 11. This article from the Deal nicely traces in general terms the financial outcome side of the story for W.R. Grace. 

Not mentioned clearly enough in the article is the specific reality that Grace used Chapter 11 to ride out the asbestos litigation bulge of the late 1990s and early 2000s, and then fought like heck in the bankruptcy to prove that the bulge was just that - a temporary bulge. Specifically, as of the late 1990s and early 2000s, Madison County, Illinois was an out of control venue with hundreds of mesothelioma cancer cases filed and resolved each year. The cases were filed and processed from around the country under an asbestos docket that Randy Bono helped to accelerate, with the extreme pace of the docket controlled by Judge Byron. During Judge Byron's reign, due process was trampled for defendants in Madison County, and the price of resolving a Madison County mesothelioma case spiraled up for many defendants, especially those who lacked good trial counsel (and that was many defendants because most insurers hated spending the money required to hire smart lawyers and/or to pay for the work that needed to be done for a successful defense.) And, others had false illusions they were not liable even though insulators plainly were entitled to significant compensation when they developed the awful mesothelioma tumor. Judge Byron finally exited in 2004 after the US Chamber of Commerce and media focused a spotlight on the scope and scale of the Madison County asbestos docket (see this 2006 report for key highlights and data),as well as campaign contributions to Illinois' elected judiciary. 

Meanwhile, cases involving the least sick became sometimes valuable because they were filed in massive numbers in a few jurisdictions.  "In the year 2000 alone, twelve large companies reported that 520,000 new asbestos claims were filed against them," as reported in this December 2002 study by Michelle J. White of the National Bureau of Economic Research. As traced by Ms. White, tens of thousands of cases were being mass filed in Mississippi and West Virginia, and trial consolidations created value with verdicts.

Values also rose because some (not all) insurers and defendants were doing a terrible job of resolving and defending cases, often because they refused to pay the real costs of coping with the massive growth of asbestos claiming, and resulting changes in the litigation dockets. And, some insurers refused to defend various defendants despite clear obligations to defend, leaving inexperienced lone defendants that sometimes made awful mistakes which hurt many or all other defendants. Indeed, some insurers and defendants panicked, and tried cases they should not have tried. Others paid hundreds of millions in settlements they should not have paid, mainly to people who were not sick under any typical use of the term. Ms. White's paper provides a cogent explanation of some of the history of how mass filed cases became temporarily valuable during that era:

"A reverse bifurcated bouquet trial of 12 plaintiffs’  asbestos claims in Mississippi in 1998 resulted in phase one compensatory damage awards that  totaled $48 million.  When the judge threatened to send the issue of punitive damages to the same jury, the defendants settled the 12 cases, reportedly for the full amount of the damage awards.  The judge then scheduled an additional 63 cases for trial before the same jury.  Defendants lodged an emergency appeal with the Mississippi Supreme Court seeking to disqualify the judge for bias, but their appeal was denied.  Defendants then settled all of the remaining 1,738 claims in the large group on extremely favorable terms for plaintiffs.  In a bifurcated trial in West Virginia in 2002 that involved 4,000 plaintiffs from 35 states suing a single defendant, liability and a punitive damages multiplier were decided during phase one.  After phase one, the judge instructed the parties to negotiate a settlement of all 4,000 claims...." 

(Caveat/disclosure - I used to work as an outside counsel for Grace.)  

• Print
• Comments
• Trackbacks
• Share Link

The new case is summarized here in an alert from Guy Stilson of Low, Ball, and Stilson. The summary includes a link to the opinon. 

• Print
• Comments
• Trackbacks
• Share Link

The article below is from Mainichi. The numbers are not large, and the article is more interesting for its statements regarding an employer agreeing to pay for medical examinations for persons who lived in the area before the plant arrived. One wonders if the reasoning for that line is the argument that residents assumed the risk by moving into the area.  

• Print
• Comments
• Trackbacks
• Share Link

Asbestos litigation continues in Japan. In one litigation, an appellate court upheld a negligence verdict against a former employer (Nippon Express) in a mesothelioma case. As reported here before, the ruling was against plaintiffs in a construction worker case. World Asbestos Report has further details, and notes that an appeal is planned. 

• Print
• Comments
• Trackbacks
• Share Link

A trial judge in Japan has issued a ruling rejecting asbestos claims by construction workers. According to a Mainichi article, the ruling suggests consideration of a compensation fund approach. Key excerpts from the article state:

As the specifics of the ruling, an online story is here states the following on the specifics:

 

• Print
• Comments
• Trackbacks
• Share Link

Trade associations face increasing amounts of litigation, and it appears one has now lost an asbestos personal injury case.  Thus, an asbestos case in Connecticut has produced a jury award against a trade association for compensatory and punitive damages. According to a news article, a "Superior Court jury deliberated about three hours Tuesday before finding the Tile Council of North America liable in the death of Hannibal "Scottie" Saldibar and awarding his family $1.6 million. Judge Dale Radcliffe then ordered the association to pay an additional $800,000 in punitive damages. .... Although it is a trade association, [plaintiff's counsel] Kenney said Tile Council of North America developed the asbestos-containing mortar used by tile setters for many years."

• Print
• Comments
• Trackbacks
• Share Link

US plaintiff's firms are continuing to publicize a recent British study finding a link between heart disease and asbestos inhalation. An example from Belluck & Fox is pasted below 

_____________________________________________________________________________

 

 

• Print
• Comments
• Trackbacks
• Share Link

After decades of operation, the Canadian-based Chrysotile Institute has closed. The web site is here, but who knows for how long. Future generations may have to use the Wayback Machine to find the site - time will tell. 

• Print
• Comments
• Trackbacks
• Share Link

The Madison County Record and its Kelly Holleran have kindly provided a summary of new asbestos cases filed in St. Louis during March and the last two days of February. The summary indicates that 18 cases were filed.  Of the 18 cases, 11 allege mesotheliomas and 7 of the cases involve lung cancers. The seven lung cancer cases were filed by several different plaintiff's firms. 

• Print
• Comments
• Trackbacks
• Share Link

Yesterday, many of the "mesothelioma news" sites issued a "story" on a new British paper on heart disease and asbestos. The abstract is below, and the paper can be purchased here.

Conclusions: Cerebrovascular and IHD mortality was significantly higher among these asbestos workers than in the general population and within the cohort mortality was associated with indicators of asbestos exposure. These findings provide some evidence that occupational exposure to asbestos was associated with cardiovascular disease mortality in this group of workers."

 

• Print
• Comments
• Trackbacks
• Share Link

The text in bold below is from one of many press releases and "articles" generated by the Asbestos Disease Awareness Organization. The organization issues a constant stream of "news," thus creating many online references to asbestos and litigation. Accordingly, it provides "priming" for causing people to associate  asbestos, disease and litigation, thus fitting well into the desire of the plaintiff's bar to encourage a "fast," automatic "system 1" reaction in favor of litigation when someone becomes sick. This stream runs some what counter to the various "fraud in litigation" streams of "news" continuously distributed by insurer sponsored groups and others. See generally: Thinking, Fast and Slow, by Nobel prize winner, Daniel Kahneman, and prior posts such as here. 

"The 8th annual International Asbestos Awareness Conference this weekend in Los Angeles, California, will feature participants from nine different countries, highlighting the global public health crisis that has crossed all geographic boundaries.

***

Saturday will be filled with a wide range of speakers and presentations. Doctors Richard Lemen (Emory University) and Arthur Frank (Drexel University) will receive a Lifetime Achievement Award for work toward reducing asbestos-caused disease. Joel Shufro (New York City Occupational Safety and Health) will be presented with the Tribute of Inspiration Award. Patients Debbie Brewer, from the United Kingdom, and Larry Davis, from South Florida, will be honored for their work in helping others while fighting their own disease."

• Print
• Comments
• Trackbacks
• Share Link

An article by Emily Dugan in the The Independent states that sources say that on Wednesday, there will be a ruling against UK insurers as to their obligations to pay for mesotheliomas. According to the article:

 

"Thousands of families whose relatives were killed by asbestos cancers will win a landmark compensation victory this week, sources have told The Independent on Sunday. The Supreme Court will rule on Wednesday that insurers who offered cover at the time victims inhaled the deadly fibres will have to pay compensation."

***

The test case, which has gone to the High Court and the Court of Appeal, has been running since 2006 and is one of the most protracted in legal history. Most of the cancer patients affected by its ruling have now died, and it is their relatives who have been waiting on the result.

Asbestos exposure is the biggest killer in the British workplace, causing more than 4,000 deaths every year – more than road traffic accidents. The fibres can be in a person's lungs for half a century before causing cancer, so that deaths in the UK are not expected to peak until 2016.

***

MMI, Builders Accident, Excess and the Independent Insurance Company are the four firms that brought the litigation. The move was seen as so controversial that most insurers distanced themselves from the case, including the Association of British Insurers.

Insurance executives are paid extra for saving their company money in asbestos payments. Ian Willett, an executive at MMI, even admitted the successful outcome of this case was likely to affect his bonus.

Carolann Hepworth, a solicitor for John Pickering acting for one of the families in the test case, said: "Millions of pounds have been wasted chasing this case when families could have just been compensated. [Insurance companies] were meeting the claims before this cynical attempt to avoid them. They took huge premiums for many years."

 

• Print
• Comments
• Trackbacks
• Share Link

The developments never stop in the rebranding and marketing of asbestos bankruptcy trusts, as illustrated below.

The online version is here.

• Print
• Comments
• Trackbacks
• Share Link

ABC in Australia is producing a television mini-series on Bernie Banton's death from mesothelioma, and his bitter battle with Australian manufacturer, James Hardie.  

• Print
• Comments
• Trackbacks
• Share Link

Like medicine and other industries, the litigation industry increasingly is an industry of specialization which includes firms, business models and adverting focused in ways that did not exist a decade ago. Today, for example, some law firms target specific industries, specific manufacturing plants, and/or specific defendants. Set out below is a new example of targeting Air Force veterans as potential plaintiffs.

 

Read more: http://www.seattlepi.com/business/press-releases/article/Mesothelioma-Attorneys-Update-Website-to-Help-Air-3346710.php#ixzz1n7JoAWvf

• Print
• Comments
• Trackbacks
• Share Link

This story from Malta Today  is pasted below. The article appears to refer to both new lawsuits filed against the Manville Trust in bankruptcy court (see this post from last week) and additional lawsuits said to have been filed in district court in New York. 

 

"The heirs of some 400 former dockyard workers have filed individual and class action lawsuits in the United States, seeking their right to compensation in damages for occupational exposures to asbestos products while working - among other places - on US warships.

Most of the workers have died of malignant mesothelioma caused by the direct and proximate result of occupational exposures to asbestos products while working on US warships while anchored at the then HM Drydocks, which later became the Malta Drydocks.

The cases were filed at the US Bankruptcy Court of New York against a number of companies which provided the asbestos materials for the US warships while in dock. The companies, which have since been declared bankrupt, are still liable for damages under US law.

But the heirs are now challenging the US courts to order a trust - set up to compensate those who became ill from asbestos exposure - to include them after it wrongly concluded that their exposure occurred off US soil.

Under the guidance of the General Workers' Union, families of deceased Drydocks workers have over the past years been put in contact with American lawyers who accepted the cases and are filing their suits for compensation under US law.

Last Tuesday, another two cases were filed at the Manhattan district court of New York by John Tanti of Siggiewi, a personal representative of the estate of Nicholas Borg, and another was filed by the heirs of the late Joseph Balzan of Sta Lucia.

Nicholas Borg passed away in November 2010. He died of asbestosis; his disease and death each being caused as the direct and proximate result of occupational exposures to asbestos products while working in - among other places - US warships docked at the then HM Dockyard in Malta.

Joseph Balzan died of malignant mesothelioma. His disease and death each being caused as the direct and proximate result of occupational exposures to asbestos products while working as a pipefitter, steamfitter and plumber at, among other places, US warships docked at the then HM Dockyard, Malta.

Their heirs have joined a case together with several other former dockyard workers from Britain and Greece who are seeking compensation for diseases and death due to asbestos exposure on US naval ships. They are challenging the US courts to declare those responsible for issuing payment are unfairly discriminating against them because they aren't US citizens.

The allegations form the basis for a newly filed lawsuit related to the 1982 bankruptcy of Johns Manville Corp., a manufacturer of building products that used bankruptcy to resolve a wave of litigation by people claiming to have become ill from the asbestos in its products.

Each man (or his representative) filed a claim against a trust set up to compensate those who became ill from Johns Manville's products.

They say their illnesses resulted from their exposure to the asbestos dust and fibres contained in Johns Manville products found in the US naval ships' boiler rooms, engine rooms and other confined areas. They say the trust has wrongly concluded that their exposure occurred off US soil.

"In the face of both domestic and international law to the contrary, let alone common sense, the trust and the [trust's claims processing company] have each taken the position that active naval warships of the United States Navy, while being repaired, maintained, serviced, or refurbished at both civilian and military shipyards of other nations and the United States, somehow lost their sovereignty as territory of this country," the plaintiffs wrote.

The plaintiffs say the trust's failure to designate their claims as "standard" claims - the designation given to US and Canadian creditors, where the bulk of Johns Manville's operations were located - represents discrimination based on their nationality: "namely, that they are not US citizens".

According to trust documents, holders of standard claims have to prove their injuries meet certain criteria. If they can show this, they're entitled to a pre-set dollar amount. But "non-standard" creditors, as the plaintiffs are currently considered, have to submit their claims for review and payment on an individual basis. The lawsuit specifically asks the bankruptcy court to declare the plaintiffs' claims standard instead of non-standard.

Founded in 1858, the Denver-based Johns Manville emerged from bankruptcy in 1988 and was acquired by Warren Buffett's Berkshire Hathaway Inc. in 2001.

Court papers show that as of September 30, the Manville trust has paid out more than US$4.2 billion to asbestos personal-injury creditors.

In 2010, Malta Shipyards were ordered to pay over €103,000 in damages to a family for failing to provide the required safety measures against cancer-causing asbestos, which led to the death of a 55-year-old worker.

A judgement handed by Chief Justice Silvio Camilleri, and judges Albert Magri and Tonio Mallia, who presided  the Court of Appeals, upheld two judgments previously handed down by a civil court,

The shipyards were held responsible for the death of Joseph Fenech after it was proven that the yards did not provide any protective clothing or masks.

Fenech died in 1997 from a serious case of mesothelioma - a lung cancer caused by asbestos fibre, the Court of Appeals ruled."

 

• Print
• Comments
• Trackbacks
• Share Link

News releases are starting to emerge on the Eternit trial. This early report indicates two executives were convicted and sentenced to 16 years in prison.

• Print
• Comments
• Trackbacks
• Share Link

The Eternit-caused asbestos deaths are to result in a verdict on Monday in Italy. Numerous prior prior posts explain the background - search Eternit. Here is a news video which includes pictures of former Eternit factory operations. Set out below are excerpts from  a related news article - the full article is online here. Video is here of plant operations in 1924. And a partisan synopsis is here. 

A website devoted to the trial has been ongoing throughout the trial, and portions of the trial have been televised. The verdict will be well-covered by the media with television, real time translations, and streaming video. 

On the day after the verdict, various asbestos litigation activists will gather for a press conference, and meeting. They include Barry Castleman, a frequent expert in US cases, and Laurie Kazan-Allen, leader of IBAS and sister of a prominent American plaintiff's lawyer, Steve Kazan. 

 

Verdict looms in world's biggest asbestos trial

 

• Print
• Comments
• Trackbacks
• Share Link

Various groups argue various positions about "controlled use" of asbestos. Arguments, however, are not necessarily reality. Here's the story of a Canadian demolition contractor jailed for continuing to falsify records regarding the presence of asbestos in homes being demolished. 

• Print
• Comments
• Trackbacks
• Share Link

Halliburton now faces a securities class action regarding its alleged failure to adequately disclose its asbestos liabilities and risks. The case was in the news last year when the US Supreme Court overturned the Fifth Circuit and held that it had improperly applied class action rules to reject the class. The issues related to proof of loss causation.  LAW360 (subscription required) reports the trial judge has entered a decision to certify the class - the opinion does not go into much detail due, apparently, to the lengthy prior history. 

• Print
• Comments
• Trackbacks
• Share Link

Matt Peacock has been covering asbestos use issues for many years from a consumer point of view. Now on YouTube is a 25 minute video on asbestos use in India. The story also is on AlJazeera.

The story is somewhat useful for presenting issues about continuing asbestos use. Unfortunately, the story also highlights the reality that discussions about "toxic risks" are too often conducted in short-hand terms and that facts are often distorted. Thus, the "pro-consumer" line of the story is impaired flawed by a Canadian scientist  failing to acknowledge that science does draw lines between the disease-causing potential of different types of asbestos fibers - the lines are real. On the other hand, "industry spokespersons" also fail to state accurate facts about asbestos risks and resulting injuries. The lack of accuracy makes it harder for governments, businesses and consumers to make good choices. 

• Print
• Comments
• Trackbacks
• Share Link

Victims of mesothelioma suffer terribly, and insurers and  companies have collapsed financially because of the costs of monies paid to victims and to defense lawyers, not to mention insurance coverage lawyers and bankruptcy lawyers.  And, of course, governments end up picking up many medical costs.  Since past inhalations of asbestos cannot be undone, a good answer would be to find ways to cure - or at least manage - mesothelioma tumors. To that end, some governments are funding research focused on understanding the pathways that produce mesothelioma, and thus trying to find ways to cure, manage or prevent mesothelioma tumors. The most recent example is a $3.5 million grant by the Cancer Institute of New South Wales to researchers focused on mesothelioma.

One wonders when insurance companies will start direct investment  in cancer research. Hundreds of thousands of mesotheliomas are predicted to occur around the globe over the next forty years. Since insurance companies live for return on investment, one wonders if they've done a decision tree analysis of the risk and return possibilities for finding better, cheaper medical paths to better outcomes for the victims. 

The NSW press release includes the following: 

 

"Almost $7 million has been granted to two eminent research groups, in the latest injection from the NSW Government's translational cancer research program, the Minister for Health and Minister for Medical Research, Jillian Skinner, said today.

The funding is in addition to the $30 million over 5 years already provided by the NSW Government for this hugely beneficial program.

This is part of the NSW Government's record investment to medical research - a massive $105.6 million in 2011-12.

The grants, administered by the Cancer Institute of NSW, have been awarded to the Asbestos Diseases Research Institute (ADRI) and the ANZAC Research Institute, based at the Concord Repatriation General Hospital in Sydney.

The group led by Professor Nico van Zandwijk, director of the Asbestos Diseases Research Institute, has been awarded $3.5 million to improve outcomes for people with asbestos-related cancer and their families." 

 

• Print
• Comments
• Trackbacks
• Share Link

A  2011 medical journal article in Annals of Occupational Hygiene describes possible or actual asbestos health risks in diamond miners in South Africa. The full text of the article is provided at no charge at the link; the abstract states: 

 

"Objectives: Asbestos is associated with South African diamond mines due to the nature of kimberlite and the location of the diamond mines in relation to asbestos deposits. Very little is known about the health risks in the diamond mining industry. The objective of this study was to explore the possibility of asbestos exposure during the process of diamond mining.

Methods: Scanning electron microscopy and energy-dispersive X-ray spectroscopy analysis were used to identify asbestos fibres in the lungs of diamond mine workers who had an autopsy for compensation purposes and in the tailings and soils from three South African diamond mines located close to asbestos deposits. The asbestos lung fibre burdens were calculated. We also documented asbestos-related patholological findings in diamond mine workers at autopsy.

Results: Tremolite–actinolite asbestos fibres were identified in the lungs of five men working on diamond mines. Tremolite–actinolite and/or chrysotile asbestos were present in the mine tailings of all three mines. Mesothelioma, asbestosis, and/or pleural plaques were diagnosed in six diamond mine workers at autopsy.

Conclusions: These findings indicate that diamond mine workers are at risk of asbestos exposure and, thus, of developing asbestos-related diseases. South Africa is a mineral-rich country and, when mining one commodity, it is likely that other minerals, including asbestos, will be accidentally mined. Even at low concentrations, asbestos has the potential to cause disease, and mining companies should be aware of the health risk of accidentally mining it. Recording of comprehensive work histories should be mandatory to enable the risk to be quantified in future studies."

 

• Print
• Comments
• Trackbacks
• Share Link

Some plaintiff's firms ask questions first and sue only a limited number of defendants (10-20) in asbestos cases. Sometimes there may even be a case that reasonably includes something around 50 defendants. But then there are other cases where the method is to sue "all the usual suspects" and then ask questions later. Here's an example taken verbatim from the West Virginia Record:

 

 

 

• Print
• Comments
• Trackbacks
• Share Link

The new year brings new seminars, and I'm speaking at one of them on one of my favorite topics - asbestos bankruptcy issues. The American Conference Institute's asbestos seminar is broad ranging, and includes many strong speakers - the agenda and registration are at the web site.  As described below, attendees can save 1/3 by signing up by Thursday.  Although ACI is rather weighted towards defense-side speakers, this year's event includes some plaintiff's lawyers from active plaintiff's firms. Plaintiff's firms drive the litigation, so it's always useful to hear the thoughts they are willing to share. Set out below are more specifics on the plaintiff's lawyers in particular and the seminar in general.     11:15 View From the Plaintiffs’ Bar on Litigating Asbestos Claims Benjamin P. Shein Lead Attorney Shein Law Center, Ltd. Vincent L. Greene IV Member Motley Rice LLC Joseph W. Belluck Founding Partner Belluck & Fox, L.L.P. Pursuing non-traditional defendants Innovative discovery techniques How federal and state reforms will impact plaintiff ’s attorneys Why are certain cases moving to trial? Identifying the factors that determine which case go to verdict The migration of claims: where they are going and why? An analysis of notable verdicts What are the most commonly paid claims? What is the future of non-malignant claims? Changing demographics: the increase in very old and very young mesotheliomas     ACI’s 12th Annual Advanced Forum on Asbestos Claims & Litigation   Thursday, January 26 to Friday, January 27, 2012 The Union League, Philadelphia, PA ACI’s 12th Annual Asbestos conference is an unparalleled opportunity to get up to speed with the new claimants, targets, jurisdictional hot spots, and science while networking with scores of in-house counsel, claims handlers and administrators, and risk managers   The defense of asbestos claims and litigation continues to evolve as million dollar verdicts are holding steady around the nation. In just the last 6 months alone, million dollar runaway verdicts have shaken the industry: retired plumber wins $41M in California asbestos case,  NJ top court shoots down $7M asbestos appeal, $25M suit over reinsurance coverage tied to asbestos litigation….and many more.  This Thursday (January 5) is your last chance to register and save $400 of the full third tier price! Tuition rate increases from $1895 to $2295 starting January 6 - REGISTER TODAY Attend ACI's 12th Annual Asbestos Claims and Litigation Conference and, in addition to unparalleled networking opportunities, you will come away with up-to-the-minute insights and expert advice for: Bankruptcy filings, confirmations & estimations and the Transparency Between Bankruptcy Trusts and Tort Litigation Asbestos Medicine: The evolution of the medical issues and how the changes affect emerging causation law and Daubert/Frey challenges - "Every Fiber," Low Dose, Encapsulation, Mesothelioma, Lung Cancer and beyond The new hot defendants: The latest on liabilities for premises owners and contractors and the growth of bystander and take home exposure claims The Navy Cases: bolstering your case from discovery through trial Settlement approaches and strategies on countering value inflation due to decreasing viable defendants Developing and herding qualified expert witnesses and then maximizing the deposition once you do

• Print
• Comments
• Trackbacks
• Share Link

The Internet enables global marketing for lawsuits arising from asbestos. Thus, a New York law firm (Rudolph F.X. Migliore, P.C.) uses web site listings and the firm's web site to seek out veterans of the Brazilian navy. The veterans are sought because asbestos was widely used on U.S. Navy ships. Indeed, many would say that exposures onboard ships have produced many of the diseases that have bankrupted various manufacturers. According to the advertising, Brazil's navy included several former US warships. 

• Print
• Comments
• Trackbacks
• Share Link

As asbestos litigation continues its global growth,  Australia's highest court issued a December 14, 2011 opinion ruling on evidentiary and causation issues in a mesothelioma case.  The outcome has been summarized by the Curwood firm,  an Australian firm which represents insurers, among others.  The short version of the summary is immediately below - the longer version is pasted further below. The summary below should soon be on the Curwood's website under case notes. 

The issues arise in the context of litigation against former James Hardie entities which sold automotive brake linings for many years, among other products.  Some former Hardie entities are now part of  the Asbestos Injuries Compensation  Fund - the website is here, and some corporate background is here.  

Curwood's summary is set out below:

"Implications

The decision has affirmed the proposition that all exposure to asbestos may be regarded as being capable of causing mesothelioma, creating a greater challenge for defendants in successfully disputing liability on the grounds of causation in low-dose exposure matters.

As observed in the Curwoods' Case Note on the Court of Appeal decision, the Courts have found that there was sufficient evidence available by 1953 to demonstrate that there was a risk of serious injury arising from exposure to asbestos in an industrial setting (including motor mechanics handling asbestos brake pads) over prolonged periods.

 ____________________________________________________________________________

Australia: High Court adopts cumulative effect theory and rejects single fibre theory for mesothelioma caused by exposure to asbestos brake linings
Curwoods Case Note

 

 

• Print
• Comments
• Trackbacks
• Share Link

One factor in the rise of the litigation industry has been increasing knowledge of hazards, which accelerates the propensity to sue. That's why media in the US today are full of real and faux news stories on asbestos, with the Internet, late night tv, and sporting events much used to broadcast the word "mesothelioma." Accordingly, it's worth noting that the UK government apparently is planning to resume its ads warning about asbestos-related health hazards, as described here by British press.

• Print
• Comments
• Trackbacks
• Share Link

One factor in the rise of the litigation industry has been increasing knowledge of hazards, which accelerates the propensity to sue. That's why media in the US today are full of real and faux news stories on asbestos, with the Internet, late night tv, and sporting events much used to broadcast the word "mesothelioma." Accordingly, it's worth noting that the UK government apparently is planning to resume its ads warning about asbestos-related health hazards, as described here by British press.

• Print
• Comments
• Trackbacks
• Share Link

Researchers continue to refine models for the likelihood of developing mesothelioma after asbestos inhalation. Here is the abstract for a new European Respiratory Journal article with a model based on numbers drawn from mesotheliomas in France.  The abstract states the following:

Temporal patterns of occupationalasbestos exposure and risk of pleural mesothelioma

• Print
• Comments
• Trackbacks
• Share Link

Now that Scotland and Northern Ireland are allowing lawsuits for compensation for pleural plaques, trade union UNITE is arguing that England and Wales also should allow pleural plaques claiming, as illustrated here. But England already - and wisely - seriously considered but rejected legislation to allow pleural plaques claiming - there was an entire consultation process and negotiations with the unions, see here and here for some history. For a broader view across the EU, see this prior post. 

Hoepfully England and Wales will not repeat the mistakes of their brethren. Simply put, pleural plaques litigation takes money and time away from resolving the far more serious problems of persons suffering from lethal and brutal  mesothelioma tumors. There also are myriad other reasons not to allow pleural plaques claiming. I covered the issues at some length in 2008 in a detailed submission to the UK government's consultation process. The 37 page outline is here, along with its exhibits.

• Print
• Comments
• Trackbacks
• Share Link

Like Scotland, legislation in Northern Ireland will permit recoveries for pleural plaques. The legislation takes effect next week, and is covered in this government press release.  The BBC has the story here. A past government memo on the subject is here. Background is here from Herbert Smith, a UK  firm on the insurance company side of things. 

• Print
• Comments
• Trackbacks
• Share Link

Hearings start today on a group of test cases intended to resolve  "trigger" issues for employers liability coverage in the UK for persons who develop mesothelioma. The story is here in regular media, and a more detailed background story is here on the website of the International Ban Asbestos Secretariat. The hearings follow up on a major coverage ruling last year. The hearings will be available here on SKY tv.

• Print
• Comments
• Trackbacks
• Share Link

Australia will be the forum for a 2012 global conference on the possibility of completely banning asbestos use. The conference will be hosted by the Australian government and the International Ban Asbestos Secretariat (IBAS). The story is here from ABC News, and was announced by Australia's Foreign Minister, Kevin Rudd, and by Laurie Kazan-Allen of IBAS. The IBAS website does not yet include a story. Ms. Kazan-Allen is the sister of Steve Kazan, a prominent US plaintiff's lawyer in asbestos litigation.

• Print
• Comments
• Trackbacks
• Share Link

Here's an update on the BBC's "Toxic Trade" stories on use of asbestos in India. The story is by Matt Peacock. 

• Print
• Comments
• Trackbacks
• Share Link

As described here in an Australian newspaper article, the James Hardie appeal is underway regarding disclosure issues regarding its asbestos risks and plans for managing the situation.  The case is one of two important cases on appeal in Australia.  For more background on the issues, see this long prior post or any of the many posts indexed under James Hardie.

An issue on appeal is whether ASIC (the Australian version of the SEC) should have called as a witness an outside lawyer to James Hardie. The newspaper article puts it this way:

"The appeal court found that ASIC had failed to call key witness David Robb, a former partner of Allens Arthur Robinson and one of James Hardie's main external legal advisers.

The court found Mr Robb would have been able to testify about whether the directors signed off on the misleading statement about the company's ability to fund asbestos claims."

• Print
• Comments
• Trackbacks
• Share Link

Researchers continue to investigate why so many mesotheliomas are showing up in taconite miners. The Taconite Workers Health Study is online here, and is ongoing in Minnesota for workers from the Minnesota mountain ranges. The story is here from John Myers of the Duluth News Tribune.

Here are key excerpts from the article:

"The number of Iron Rangers who died of mesothelioma has reached 82, up from 63 when last reported by state health officials in 2010.

Health officials say they found the additional cases by checking death records in other states for former Iron Range residents who moved out of Minnesota.

That was the report Monday from the University of Minnesota team that is heading the long-term Taconite Workers Health Study. The study, which started in 2008, could be completed as early as mid-2012.

Dr. Jeffrey Mandel, an associate professor at the University of Minnesota’s School of Public Health and lead researcher in the Iron Range study, said a “back-of-the-envelope” analysis shows the mesothelioma rate is considerably higher than it should be.

“But we are still doing the analysis to find out how much so,” Mandel said in a telephone news conference."

• Print
• Comments
• Trackbacks
• Share Link

Canada is not alone in seeking jobs through asbestos mining. Here is an article on political upheaval as connected to the Shabani Mine, which is said to contain enough asbestos for 17 more years of production. Articles on history related to the mine are here, here, and here. Turner & Newall once owned and ran the mine, as described  here. Drawing from the Turner & Newall papers, Jock McCulloch wrote this detailed article on how Turner ran the mine. A later, broader paper by McCulloch is here. More Turner history is here. There also is a government study of the mine. 

• Print
• Comments
• Trackbacks
• Share Link

Pleural plaques are back in the news in the UK due to an important new opinion.  As covered in several prior posts (some are here, here and here), Scotland reacted to the Rothwell decision by passing a statute to reinstate damages for non-malignant conditions, such as pleural plaques. Various insurers challenged the law. The insurers now have lost their appeal to the Supreme Court. A BBC article is here, and the opinion is here. 

My personal view is that paying non-malignant conditions is poor social policy because it diverts finite resources - money, medical attention, science, and legal attention -  away from persons suffering from malignant conditions. Go here for a detailed outline I submitted to the English government when it held a consultation after Rothwell. In short, I urged the government to reject paying plaques claims, and to fund more scientific research on cancer. Ultimately, the English government took those steps as it increased scientific funding and chose not to overturn Rothwell, as covered here and  here. 

Go here for links to a wider article on plaques claiming across Europe. 

• Print
• Comments
• Trackbacks
• Share Link

Here is a new article on continuing growth in the asbestos-cement business in India. 

• Print
• Comments
• Trackbacks
• Share Link

A letter to the editor is the latest act in the  saga that goes on in Canada as to a proposed investment in the old Jeffrey asbestos mine which produces chrysotile fibers. The saga highlights the tensions between jobs, investments and risks.  As mentioned before, the reporting and articles do not cover key issues, such as whether the chrysotile fibers are "contaminated" by amphibole fibers. And, as covered by this prior post, the prospects of more fiber sales highlight the need to create at least some global rules in a global marketplace. The letter to the editor is set out below:

Why I want to be in the asbestos business

Read Readmore:http://www.montrealgazette.com/business/want+asbestos+business/5503381/story.html#ixzz1ZuFoU9i4

 

• Print
• Comments
• Trackbacks
• Share Link

This BBC article reports on damages recently awarded in a mesothelioma death case in Scotland involving a 66 year old man who worked for a construction company in an unspecified job. The articles sets out the damages awards as follows:

"Following expert medical evidence Lord Doherty said he proceeded on the basis that, but for the condition, Mr Wolff could have expected to live for another 17 years.

Mrs Wolff sued both as an individual and as executor following the death of her husband. The judge granted her a total award of £258,520, including £65,000 for the suffering of Mr Wolff - who had experienced "exceptional pain".

The judge also awarded damages to the couple's three daughters totalling £52,317. The couple's granddaughter was awarded £7,084.

Claims made by other family members have already been settled."

• Print
• Comments
• Trackbacks
• Share Link

In Egypt, asbestos is in the news for increasing cancer rates and concern that a ban on asbestos use is being ignored. 

In Thailand, asbestos is in the news due to concern regarding whether there is adequate enforcement of a ban on asbestos use.

In Korea, asbestos is in the news due to its presence in the grounds of professional baseball fields. Apparently closed asbestos mines are now being used to generate rock used for commercial installations. 

 

• Print
• Comments
• Trackbacks
• Share Link

Google today dragged up three related stories.  One is this relatively detailed article on efforts to continue asbestos-mining in Canada - a topic covered here before, and by Jon Stewart and the team of The Daily Show. The basic thesis of the would-be miner is that "controlled use" is just fine. 

The related article is here. It's an article from a newspaper in Sri Lanka regarding an asbestos cement factory. According to the article, the local factory suffered a breakdown which distributed factory dust over the surrounding community.  For grins, I googled the factory.  The Mascons website is here. This page displays a wide range of asbestos-cement products it's been producing since 1956.  This page shows the inside of the plant. Apparently related companies grow tea and grow roses and other flowers.  It's an interesting world out there. Mascons probably does not consider itself a future asbestos-defendant.

Finally, there's this article on asbestos-related litigation - in Scotland - arising from a renovation project gone bad. The "greedy plaintiff" (humor intended) is an order of monks which filed suit to recover expenses incurred to clean up an asbestos mess that arose after a renovation project disturbed in-place asbestos-containing materials connected to their chapel. 

Risks and realities end up being balanced, and present jobs and goods carry benefits that some see as outweighing long term risks for which they may or may not have to pay. One wonders, for example, if the Sri Lankan factory owner has insurance, and if it contains an asbestos-exclusion. What about coverage for future "premises liability" claims ?  And, for those thinking in detail about future litigation, here's what Wikipedia provides for an overview of law in Sri Lanka:

"Judicial: Sri Lanka's judiciary consists of a Supreme Court - the highest and final superior court of record,^[209] a Court of Appeal, High Courts and a number of subordinate courts. Its highly complex legal system reflects diverse cultural influences.^[210] The Criminal law is almost entirely based on British law. Basic Civil law relates to the Roman law and Dutch law. Laws pertaining to marriage, divorce, and inheritance are communal.^[211] Due to ancient customary practices and/or religion, the Sinhala customary law (Kandyan law), theThesavalamai and the Sharia law too are followed on special cases.^[212] The President appoints judges to the Supreme Court, the Court of Appeal, and the High Courts. A judicial service commission, composed of the Chief Justice and two Supreme Court judges, appoints, transfers, and dismisses lower court judges."

 

 

 

• Print
• Comments
• Trackbacks
• Share Link

NERA publishes an annual summary of big picture findings on asbestos litigation. The 2011 update was issued in July, and is online here. The paper is free for downloading, and includes useful big picture observations on claim filing rates, claim resolution amounts and resolution rates,  and reserving by companies and insurers.  

NERA's complete compilation of asbestos papers is here. 

 

• Print
• Comments
• Trackbacks
• Share Link

This recent Madison County Record article illustrates two continuing trends - more lawsuits claiming that asbestos caused lung cancer, and more asbestos-related lawsuits in St. Clair County. Both trends reflect efforts to expand the market in claims and trial dates. Plaintiff's lawyers are, after all, entrepreneurial. 

• Print
• Comments
• Trackbacks
• Share Link

Mass tort litigation includes some interesting moments. This article describes the Delaware "asbestos judge" ordering a special Sunday session due to frustration with the parties. The story starts this way:

"WILMINGTON -- A Delaware judge apparently had enough of what she saw as attorneys' childish bickering in a civil case this week and called them all in to serve detention on Labor Day weekend, advising them to bring their "teddy bears and jammies."

Superior Court Judge Peggy L. Ableman, in an unusually blunt Sept. 1 letter, told attorneys involved in a pair of asbestos personal-injury cases to report to the New Castle County Courthouse on Sunday at 10 a.m. for "a 'special' emergency refresher course in first year ethics and civility ... this gathering is mandatory."

"Attendees are encouraged to bring sleeping bags, toothbrushes, teddy bears and jammies, as the agenda will be exhaustive," she wrote, adding in a footnote, "these terms reflect the court's impression of the childish level to which this litigation has stooped."

• Print
• Comments
• Trackbacks
• Share Link

The debate and acrimony continue on in Canada as to exporting asbestos, as illustrated by this new NYT guest editorial from the friend of a man who died of mesothelioma created by a Navy exposure. According to the story, the Canadian Tories had the bad judgment to have a lawyer write and complain when the widow used the party's  logo on her website arguing against the Tories' support for continuing export of asbestos fibers. The lawyer's letter of course was turned back against the party by the widow, and produced a small firestorm of bad publicity for the party. A timely reminder that lawyers can worsen a touchy situation by failing to "get" the big picture. 

• Print
• Comments
• Trackbacks
• Share Link

Every fall, Perrin Conferences  runs a huge and excellent asbestos-litigation seminar I love to attend.  This fall's conference is Sept 19-21 in San Francisco. The full agenda is here. 

This year's conference includes a material focus on science and disease, including genetics. The conference also includes significant presentation time from Dr. Victor Roggli, author of  this authoritative treatise on the pathology of asbestos-disease and one of the few experts respected and hired by both plaintiffs and defendants.  

Event Agenda Day 1 

10:30 AM – The Latest Advancement in Asbestos Medicine 

 Latest medical advances in causation and treatment 

 The pathology of an asbestos disease – do genetics have a role in determining individual causation? 

 Epidemiology update 

 Alternative causes of mesothelioma 

 Breaking down the single fiber theory 

 

Moderators: Sharla Frost, Esq., Powers & Frost, LLP, Houston, TX 

Anne Kearse, Esq., Motley Rice LLC, Mt. Pleasant, SC 

10:30 – 11:00AM- Defense Discussion: 

Michael A. Graham, MD, Professor and Co-Director, Division of Forensic and Environmental Pathology, Saint Louis University School of Medicine, Chief Medical Examiner, St. Louis, MO 

Victor L. Roggli, MD, Professor of Pathology, Duke University Medical Center, Durham, NC 

11:00 – 11:30AM- Plaintiff Discussion: 

Arnold R. Brody, Ph.D., Professor, Department of Molecular Biomedical Sciences, North Carolina State University, Raleigh, NC 

John C. Maddox, MD, Pathologist, Riverside Regional Medical Center, Newport News, VA 

_________________________________________________________________________

 

Event Agenda Day 2 

11:15 AM – Secondary No Longer: The Growth of Bystander and Take Home Exposure Claims 

Industrial Hygiene and Asbestos Disease Causation: 

 Relative Fiber Release Associated with Various Asbestos-Containing Products 

 Calculating Dose 

 Bystander Exposure

 Take Home Exposure 

 Friction Products Exposure 

Victor L. Roggli, MD, Professor of Pathology, Duke University Medical Center, Durham, NC 

Bernard Silverstein, M.S., CIH, Medical Science Affiliates, Columbia, MD 

John Spencer, CIH, CSP, Environmental Profiles, Inc., Columbia, MD 

John Templin, Senior Consultant, MAS, LLC, Seal Beach, CA 

 

 

 

 

• Print
• Comments
• Trackbacks
• Share Link

Some think that asbestos use is is over or dwindling all across the world. Not true.

For example, this new press release from Eternit S.A. reports on the company's better than expected quarter of asbestos mining, and manufacturing of various asbestos-cement products.  

 

"SAO PAULO, Aug. 9, 2011 /PRNewswire/ -- Eternit S.A. (BM&FBOVESPA: ETER3; OTC: ETNTY), a company with 71 years of activity and the market leader in roof coverings, panels and cement slabs, today announces its  results for the 2nd quarter 2011 (2Q11).

Although 2Q11 is seasonally the weakest period of the year, Eternit operated at full capacity in its chrysotile mining business, above 90% in fiber cement production and in excess of 80% in concrete tiles.

At this page, Eternit SA's website  also provides this information on asbestos fiber production: 

 

"Chrysotile asbestos and amphibolic asbestos
There are two main groups of asbestos, chrysotile and amphibolic. Amphibolic asbestos has hard fibres which are straight and pointed, as well as having a high concentration of iron in their composition. Chrysotile asbestos has curved fibres which are silky and have a high concentration of magnesium in their composition. The characteristics of these fibres is one of bio-persistence, which signifies the amount of time that they remain in the lungs before being eliminated. Chrysotile fibre remains a maximum of two and a half days in the lungs, whereas amphibolic fibre remains more than a year.

 

The history of the Cana Brava mine - controlled by SAMA S.A. - Minerações Associadasis confounded with the development process of the inland Brazil in the second half of the 20th Century, particularly in the Central-Western region. The first pioneers who arrived at the place, in 1962, searched for clues of strange"hairy stones" in a region occupied by a few families living along the rivers.-- Five years later, after confirming the existence of chrysotile asbestos, the mine started being exploited, contributing for the appearance of the City of Minaçu, located 510 km far from Goiânia, in the Northern State of Goiás. In addition to the city creation, the mining allowed the beginning of a process of fast economic development, with generation of wealth and employments, allied to the preservation of the natural resources. Within a little time, Cana Brava mine provided Brazil with self-sufficiency in the production of chrysotile asbestos, exceeding the requirements of the domestic market and allowing the export of fiber to several countries. Cana Brava is the only chrysotile asbestos mine in activity in Brazil and one of the world’s most productive mines, with installed capacity of 240 thousand tons/year, having a modern industrial park, which serves as reference for the main mining companies of the world.

 

 

• Print
• Comments
• Trackbacks
• Share Link

Selling asbestos fibers today seems not real bright. As a result, this blog includes this post and this post highlighting the flaws in the arguments for selling asbestos fibers for "controlled use."  But Jon Stewart and the Daily Show just did it in a big way, as shown here by opponents of asbestos fiber sales.The Canadian Press later picked up on the story on the story.

Kudos to Stewart and Company for publicizing the folly.

• Print
• Comments
• Trackbacks
• Share Link

Here is a comprehensive summary of the asbestos-cement industry in India as of 1997-98.  Papers like this tend to end up becoming "tomorrow's"  evidence.

• Print
• Comments
• Trackbacks
• Share Link

Canadian asbestos miners and asbestos cement makers like to argue that continuing to use asbestos makes sense because use is "controlled."  That might be true every now and then, but Mother Nature has recently and repeatedly proved that the world's societies cannot realistically assume control over nature, and so products need to be evaluated based on the harms they can cause when use is not controlled.   Thus, Insurance Journal reports here that asbestos monitoring is now underway in Japan's tsunami-stricken communities due to asbestos cement wreckage from buildings. Not surprisingly, fibers are being found by the monitoring, and exposures are occurring.  The Insurance Journal article assumes the fibers are chrysotile (white) fibers. But the facts are that a Kubota-owned plant in Japan produced vast amounts of asbestos cement board using the far more carcinogenic crocidolite (blue) asbestos fibers, as is detailed in this medical article.

The controlled use rationale sounds logical. But it fails to account for the reality that we know that we cannot control nature, and there will be nature-caused calamities. We also know there will human mistakes and errors, with a prime example being the BP oil rig fiasco. The controlled use argument also fails to account for events that actually are not predictable. Law and society should move to the point that the controlled-use rationale is carefully scrutinized and limited to situations where it is proved - not assumed -  to  comport with human experience. 

 

• Print
• Comments
• Trackbacks
• Share Link

Asbestos returned to the Supreme Court yesterday in the context of securities litigation. The case arises from Halliburton's purchase of Dresser Industries, a long-time asbestos defendant. Ultimately, the disaster known as Dresser forced a chapter 11 filing by Halliburton entities to deal with the asbestos problem. Along the way, Halliburton's stock price cratered. I remember it well because my we had hedge fund traders calling for advice on the scope of Halliburton's massive problems acquired via Dresser and other deals.  

Former Vice-President Dick Cheney was the CEO of  Halliburton when it made the  decision to buy Dresser. The losses which ultimately befell Halliburton were eminently foreseeable and indeed cost the company many billions, although it later recouped some billions through settling insurance policies. (One wonders how Mr. Cheney  and others made the decision to buy Dresser - in a stock  deal - without meaningful indemnities. The purchase seems almost as ill-conceived as Federal-Mogul's decision to buy asbestos giant Turner & Newall, a purchase that also caused a bankruptcy.)

Anyway, the Dresser disaster's consequences for shareholders are now before the Supreme Court in a securities fraud case on class certification standards. Long story short, the shareholder suit involves claims that Halliburton failed to properly disclose the asbestos risks of Dresser (that's surely true). SCOTUS has the case because of the 5th Circuit 's aberrant views on class certification standards. It's aberrant standards frankly are a recipe for how to fail to disclose toxic tort risks and then try to game the system by making belated disclosures to muddy the waters.

The case is provoking much debate, including ongoing blogging at the Conglomerate by several law professors. The posts include all the links one might want. 

The also produced many amicus briefs, including pro-shareholder briefs by the US government , and by Professor Coffee and others. The usual defense groups are of course applauding the 5th Circuit's  view, including DRI and the Chamber of Commerce, but they may have lost some credibility for doing so because the accounts of oral argument say that Halliburton's counsel conceded the 5th Circuit was off the mark at least in part. The Fifth Circuit opinion is here. 

My conclusion? One hopes the Justices have the wisdom to reverse the 5th Circuit. If they fail to reverse, or approve muddled mixes of disclosures, companies will have much more leeway to fail to make timely and accurate disclosures of toxic tort risks. That's a bad outcome for everyone, except insider traders.  I'm optimistic in view of the Court's pro-disclosure opinion earlier this term in Matrixx . As covered in this prior post,  the Matrixx Court held that drug companies are indeed required to fully disclose adverse facts and possibilities arising from science.

• Print
• Comments
• Trackbacks
• Share Link

How will mesothelioma tumors be treated  in a decade ? Will lives be extended for many years? Will every person with mesothelioma seek gene therapy as a remedy ? Will Madison and St. Clair Counties find new cancers to focus on instead ?  

The preceding questions are no doubt somewhat  fanciful. But, science is pressing ahead. Thus, a Phase 2 clinical trial is now underway in the UK to try to stave off mesotheliomas by depriving the tumors of an amino acid (arginine) that some mesothelioma tumor cells need to grow. The theory is that an enzyme known as ADI-PEG 20 will block production of the arginine, and leave the tumor unable to grow. Set out below is the press release from the sponsor - Polaris Group, a San Diego based entity. The company also intends to try the same tactic against small cell lung cancer (SCLC), which is the basic name for forms of lung cancer almost exclusively tied to cigarette smoking.

Polaris' website includes a medical literature section, and it includes an abstract from which the following excerpt is drawn,  as to a Phase 1  trial of ADI-PEG 20. The numbers are relatively encouraging:  

"Results: In keeping with the cell line data, 63% (52 of 82) of patients had tumors displaying reduced or absent AS protein, as assessed using a tissue microarray. Cell viability declined markedly in the AS-negative cell lines 2591and MSTO but not in the AS positive cell line, 28.This response was apparent by day 4 and maintained by day 9 in vitro. Arginine depletion induced BAX conformation change and mitochondrial inner membrane depolarization selectively in AS-negative MPM cells.

 Conclusions: In summary, we have identified AS negativity as a frequent event in MPM in vivo, leading to susceptibility to cytotoxicity following restriction of arginine. A phase II clinical trial is planned to evaluate the role of arginine depletion in patients with AS negative MPMding to susceptibility to cytotoxicity following restriction of arginine. A phase II clinical trial is planned to evaluate the role of arginine depletion in patients with AS negative MPM."

Hat tip to Genetic Engineering & Biotechnology News.

The Polaris press release is below.

_____________________________________________________________________

• Print
• Comments
• Trackbacks
• Share Link

The Montreal Gazette is reporting that the Quebec government has now said it will guarantee a loan to continue asbestos mining and exports. The government acted despite signficant outcry by opponents. Much of the fiber apparently is bound for India for asbestos-cement boards, as is described in the article.

• Print
• Comments
• Trackbacks
• Share Link

It's back to Australia. There, an important new appellate court opinion affirms a verdict for a brake mechanic who won a trial court judgment that his mesothelioma was caused by inhalation of chrysotile asbestos fibers from automotive brake linings.  A popular press article is here regarding the plaintiff, John Booth. The appellate opinion is here. The trial court opinion is here.

The appellate court opinion is noteworthy in multiple ways, and not all are covered here. Of note to me, the US Supreme Court's Daubert opinion was acknowledged as interesting, but was not followed. Second, the Court rejected defendants demand for epidemiological proof. Third, it reached the obvious - but not always stated - conclusion that  tort damages may be awarded when scientists can explain some - but not all parts  - of exactly how a disease is caused. 

Key passages are set out below; the Australian system of numbering paragraphs makes it easy to find the quoted sections.

62 The objection must ultimately be resolved by reference to the contention that Professor Henderson failed to engage with the epidemiological evidence said to demonstrate that there was no causal link between exposure to asbestos in the course of undertaking brake repairs and mesothelioma. That proposition, however, fails at two levels. First, it fails because it assumed that epidemiological evidence is both relevant and dispositive of, or at least superior to, other evidence of causation. Secondly, it fails because Professor Henderson did not disregard the epidemiology.

63 The role of epidemiology in causation inquiries was explained by Spigelman CJ in Seltsam Pty Ltd v McGuiness at [93] in the following terms:

“With respect to many diseases, medical science is able to give clear and direct evidence of a causal relationship between a particular act or omission and a specific injury or disease. There are, however, fields of inquiry where medical science is not able to give evidence of that character. There are cases in which medical science cannot identify the biological or pathological mechanisms by which disease develops. In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for purposes of attributing legal responsibility. Epidemiological evidence may be able to fill the gap. It is of particular potential utility in the field of what is often referred to as ‘toxic torts’, especially in case of diseases with long latency periods.”

64 Professor Henderson’s evidence in terms supported a causal relationship; accordingly, the epidemiological evidence was not essential or dispositive. (emphasis added).

 The opinion also includes a notable,  brief discussion of whether it matters that science cannot yet explain every part of the biological process that results in the cancer.  The Court emphatically said "no," and explained the holding as follows:

116 It is convenient to deal first with the challenge to the “biological process” evidence. The appellants submitted that such evidence was “incapable” of supporting a finding in favour of the respondent, for three reasons. First, it was said that the biological processes remain “incompletely understood”. That assessment of scientific understanding may be accepted; but it takes the appellants nowhere. The civil standard of proof, on the balance of probabilities, permits a yawning gap between complete understanding and sufficient understanding. There may be an even greater gap between that which is “capable” of supporting a finding on the balance of probabilities and that which the appellants would accept “does” support such a finding. The submission misconceives the nature of the proceedings. (emphasis added).

 

• Print
• Comments
• Trackbacks
• Share Link

This story from the Montreal Gazette recounts apparent new investment in asbestos mining in Quebec's Jeffery mine. It's disappointing that the reporting lacks substance, and instead is limited to regurgitating spin.

An informed reporter (increasingly, an oxymoron), would ask whether the Jeffrey Mine's chrysotile, like many others,  includes the far more carcinogenic amphibole fibers. One would also ask what will be done when there is an end to the  useful life of an asbestos product. How will it be removed? Will the remover know its content? Or, will the user be uninformed and exposed to a potent carcinogen if in fact amphibole fibers are present ?

• Print
• Comments
• Trackbacks
• Share Link

Here is a media article on a Tasmanian government proposal to develop legislation to pay compensation to asbestos victims. Payments would be funded through a tax on employers. 

Go here for the government's announcement, and it's fairly detailed regulatory impact statement. In short, the proposal is still fluid but is centered around an asbestos compensation fund that would be administered by a special court.  Comments are due by November 12.

According to the media article:

"Under the scheme it is proposed a 64 year old worker with a fatal disease, like mesothelioma, will be entitled to receive compensation of approximately $500,000.

"An 83 year old worker suffering the same condition will be entitled to receive about $250,000."

• Print
• Comments
• Trackbacks
• Share Link

Managing legacy liabilities is never easy. For some, it can be a nightmare. Thus, James Hardie and its asbestos compensation fund took yet another hit yesterday through the loss of a tax appeal.  The loss is  described here in mass media in Australia. The mass media is focused on the fund's long term survival prospects in light of the adverse ruling and the continuing slumps in the building sector that buys product from James Hardie entities. 

The company issued a statement yesterday (go here to investor relations page), but did not include a link to the opinion. According to the statement. the loss will result in a charge of about $ 330 million (US) unless there is a successful further appeal. The company also says it will not violate loan covenants by taking the charge.

 

 

• Print
• Comments (2)
• Trackbacks
• Share Link

Perhaps someday Australia's James Hardie company will end up in textbooks as an example of poor handling of contingent product liability risks. For now,  James Hardie's investor relations group has a new challenge that follows after multiple other challenges. The company and corporate  officers and directors already have been through major problems, including convictions of senior officials for misleading investors about future asbestos payouts (the convictions are on  appeal).  Then, the company  was the subject of a new book:  Killler Company.

Now, Australia's Daily Telegraph reports that a made for TV movie may be created regarding the mesothelioma death of Bernie Banton, and the related "James Hardie asbestos saga."   The article is here. It states:

 A tribute to Banton

FREMANTLEMEDIA Australia is developing the James Hardie asbestos saga for a new TV drama, expected to be delivered to the ABC.

An ABC spokeswoman last week confirmed the venture, reiterating it was "in development at this stage and is yet to be commissioned".

The story of James Hardie - specifically the manufacturing company's multimillion-dollar liability payout to former employees as a result of its use of asbestos products - captivated the country the last decade, with stoic campaigner Bernie Banton (who died in 2007) becoming the public face of the David v Goliath battle.

• Print
• Comments
• Trackbacks
• Share Link

Here is a new article from a UK newspaper that illustrates the argument that it's sophistry to claim to expect  "controlled-use" of most types of asbestos-containing products. In this instance,  a ship-breaking company apparently unknowingly had its employees dismantle ships without any respiratory protection. The workers, unfortunately, were working with boards made from brown (amosite) asbestos fibers, which are far more lethal than are white (chrysotile) asbestos fibers.

• Print
• Comments
• Trackbacks
• Share Link

Today continues the look at sources of  global information regarding the burgeoning industries using asbestos, and their connections to sovereign governments. Here's the story behind the story. The resources below are well worth a look and contemplation.

The Center for Public Integrity is the website host for a massive collection of information on the global asbestos trade, with a focus on Brazil, Canada, China, India, Mexico, Russia, and the United States.  That extensive cache of information was created through joint efforts described below in this quote from the CPI website:

"In the fall of 2009, the International Consortium of Investigative Journalists began looking into the global trade in asbestos, a cancer-causing fiber banned or restricted in much of the industrialized world but aggressively marketed in developing countries. What evolved was a nine-month investigation of an international lobby, much of it coordinated from Canada, which promotes the use of asbestos in construction materials and other products.

ICIJ joined with reporters and producers with the BBC's International News Services to document the asbestos industry’s activities in Brazil, Canada, China, India, Mexico, Russia, and the United States. Our investigation concluded that the industry has spent nearly $100 million since the mid-1980s to keep asbestos in commerce. The team’s reporting reveals close relationships among the industry, governments and scientists, and cites predictions from health experts that new epidemics of asbestos-related disease will emerge in the coming decades. Some experts believe that by 2030, asbestos will have taken as many as 10 million lives around the world.

Dangers in the Dust: Inside the Global Asbestos Trade is based on extensive research in eight countries. The team relied on thousands of pages of documents, including court filings, scientific studies, and financial records, as well as on interviews with health officials, industry representatives, scientists, victims, lawyers, and activists."

 

• Print
• Comments
• Trackbacks
• Share Link

Information popping up lately on the BBC and elsewhere indicates that evidence is being gathered today for tomorrow’s claims against the non-US entities that are increasing involved in using asbestos. One example is this July 21 BBC article and video presentation regarding asbestos use in Russia. Preceding days included features on asbestos use in China, and in India.

In general, the pictures and videos show that assertions about “safe use” practices for asbestos are in general assertions of myths and theories that have virtually nothing to do with reality. Some parts of these news stories no doubt will be end up as evidence for future claims against the entities and governments involved in the short-sighted decisions to ignore the realities of the specific risks involved in asbestos use. It is true that the white, serpentine types of chrysotile fibers are much, much less toxic than the amphibole blue (crocidolite) and brown (amosite) fibers. However, many (but not all) chrysotile  deposits include tremolite asbestos fibers that are essentially amphibole fibers. Therefore, the mined chrysotile fibers also include some small amount of tremolite fibers. Accordingly, it's not accurate or enough to argue simply that it's safe to use the white fibers. 

• Print
• Comments
• Trackbacks
• Share Link

It's fascinating to watch the dances between and among  science, economics, politics and media as to "toxins."  Consider all the dances going on in the the BP oil rig fiasco.

For another example, note the evolution of the asbestos mining debate in Canada. According to this June 12 article from the Montreal Gazette, the Canadian government is on the brink of moving ahead with funding to assist in maintaining and creating jobs at a chrysotile asbestos mine. The funding would cover an underground expansion of  the decades-old Jeffrey Mine located in the Quebec town named Asbestos. The funding apparently will be provided despite vocal international advocacy from doctors at Mt. Sinai Medical Medical Center and elsewhere. (Mt. Sinai was the professional home for Irving Selikoff, one of the first few asbestos researchers).   Here are key excerpts:

 

• Print
• Comments
• Trackbacks
• Share Link

Asbestos litigation never ceases to surprise. This week's surprise is found in an on line article by Kelly Holleran for the Madison - St. Clair County Record, a great, free on line resource for tracking events in the litigation industry in Madison and St. Clair counties. 

The story is that two different law firms filed suits for the plaintiffs, with the first suit filed in Madison County and  the second filed six days later in St. Clair County. According to the article, the plaintiffs and law firms are as follows:

"Glenn and Joyce Metzger of Othello, Wash. filed a lawsuit against 59 defendant corporations April 27 in St. Clair County Circuit Court. They filed a similar lawsuit May 3 in Madison County Circuit Court.

In both complaints, the Metzgers allege the defendant companies caused Glenn Metzger to develop mesothelioma after his exposure to asbestos-containing products throughout his career as an insulator at various sites from 1953 until 1989.

David I. Cates and Judy L. Cates of the Cates Law Firm in Swansea will be representing the Metzgers in their St. Clair County lawsuit. Elizabeth V. Heller and Robert Rowland of Goldenberg, Heller, Antognoli and Rowland in Edwardsville will be representing them in their Madison County lawsuit. "

 

• Print
• Comments
• Trackbacks
• Share Link

Johns-Manville for many years owned the chrysotile mine in the Canadian town of Asbestos. The town is northeast of Montreal, and not too far north of Vermont.  A story from the Montreal Gazette describes some history, the current effort to find the money to finish a proposed underground asbestos mine, and various other alternatives, such as using the old mine pit as a waste disposal site. 

• Print
• Comments
• Trackbacks
• Share Link

Estimates and disclosure of contingent risks are front and center these days in various contexts. Thus, asbestos-specific estimates and disclosures are prominently mentioned in a new  Australian appellate decision in CSR. The opinion was issued at the end of last week, and provides some narrow guidance on solvent schemes of arrangement for companies facing asbestos claiming. A prior post here  describes the trial court litigation regarding the efforts of CSR, an Australian business, to obtain judicial approval of a  reduction of its its asset base when it faces admittedly significant current and future asbestos claims.  The proposed reduction of assets would be accomplished through a "demerger" (in the US, we would call it a spinoff). 

The federal appellate court opinion in CSR is worth reading for those interested in the social and legal policy issues involving tort claiming and corporate transactions. That said,  the opinion is narrow. In short, the court did not approve the demerger, and did not find the demerger reasonable. Instead, it narrowly held that the trial court should allow the process to move forward to a meeting of creditors. 

The future developments in CSR will be interesting. At present, CSR's demerger efforts are opposed by asbestos claimants, AISIC (the Australian counterpart to the SEC), a regional government  fund obligated to pay claims by persons suffering from asbestos-related diseases, and by a significant asbestos co-defendant, James Hardie.  To date, the objectors have not cross-examined various actuaries who prepared estimates of the future asbestos payments by CSR. it will important and interesting to see the substance that emerges from cross-examination of actuaries, if it occurs.  Cross-examination did not occur to date because the parties structured  the proceedings that way and allowed much of the information to remain "confidential."  The appellate court opinion seems to put the reasonableness of the actuarial reports squarely into play for  cross-examination and argument during future proceedings. Thus, the appellate court explained:

" 56  As to the argument advanced on behalf of the James Hardie parties, the reports prepared by CSR’s actuaries purport to quantify the present value of CSR’s future long term exposure to asbestos claimants. There is nothing in these reports which suggests that any category of asbestos claimant has not been included in their actuarial assessment. There is, accordingly, force in CSR’s argument that the learned primary judge erred in treating the disclaimer in the Grant Samuel report as indicating that the assessments made on behalf of CSR did not include persons who have not yet contracted an asbestos related disease as a result of exposure for which CSR is responsible. On the other hand, this important question could have been resolved beyond the possibility of doubt by cross-examination of the relevant authors. That did not occur in the proceedings before the learned primary judge. To say this is in no way to level a criticism at her Honour: the case was conducted before her in accordance with the wishes of the applicant and the interveners. To say this is, however, to recognise that an application for the convening of the first meeting of shareholders under s 411(1) of the Act is not an ideal occasion to attempt to resolve such issues.  " (emphasis added)

  

• Print
• Comments
• Trackbacks
• Share Link

For anyone lookinig to buy into the Chinese asbestos-cement industry, go here to read about an apparently substantial investment report on the indutstry, as advertised for sale on BusinessWire. Amazing to see events repeated around the globe.

• Print
• Comments
• Trackbacks
• Share Link

It's usually not good for the defendants when the popular legal media is picking up verdicts from asbestos trials. That's true again this time; go here to see the coverage. Trying cases is part of life and a good defense, but there are indeed risks.

• Print
• Comments
• Trackbacks
• Share Link

A new example of the global spread of environmental consciousness as it applies to persons who work at or service manufacturing plants that utilize "toxins."   

As a result of a cancer death of  person associated with a manufacturing plant in Pakistan, the CEO of Dadex Eternit faces  a summons to testify in connection with a complaint and order from environmental authorities in Pakistan. The news is provided by  an article  in  The News International. 

 

Dadex Eternit is a maker of chrysotile board and plastic pipes. According to its website:   " Dadex was established as a public limited company in 1959. Headquartered in Karachi, our two manufacturing facilities, based in Karachi and Hyderabad, are equipped with state-of-the-art machinery. Dadex also has its own rubber plant located within Karachi Factory, producing high quality rubber rings (according to international standards) for our pipes."

 

 

• Print
• Comments
• Trackbacks
• Share Link

Madison County, Illinois gets most of the ink, but it has a sibling in St. Clair County. In year's past, when I was a baby lawyer, some considered St. Clair as bad for defendants as Madison County. Asbestos filings have ticked up there in recent weeks, and the filings may mark the start of  new strategic gambits by plaintiff's counsel. Set out below is an update from the always informative Madison- St. Clair Record.

____________________________________________________________

St. Clair County's nearly dormant asbestos docket is seeing new life.

3/18/2010 4:39 PM By Amelia Flood 

Recent asbestos lawsuit filings by several well-known asbestos attorneys -- and some new partnerships -- have sparked a revival of the little-known and infrequently used asbestos docket.

At least five new asbestos cases have been filed in St. Clair County this year.

Swansea attorney Judy Cates has teamed with the Chicago law firm of Cooney and Conway, having filed four mesothelioma-related asbestos suits on the same day this year, alleging claims against familiar asbestos defendants such AW Chesterton, Bondex and John Crane, Inc.

Cates, who has litigated a number of high profile class actions, had not filed any asbestos cases in at least six years.

Other attorneys have made recent asbestos claims in St. Clair County, including Randy Gori of Edwardsville. Gori, whose firm has brought hundreds of asbestos cases into Madison County's packed asbestos court, has filed at least one asbestos case in St. Clair County this year.

In Gori's newest St. Clair County case, clients Aubrey and Olive Roach claim Aubrey Roach developed cancer from working with asbestos products during his time as an army mechanic in the 1940s.

While Madison County's asbestos filings reach into the hundreds each year, St. Clair County stands in contrast.

From 2004 to 2007 there were just 61 asbestos cases filed in St. Clair County, compared to more than 1,200 in Madison County during the same period of time.

Of the years analyzed in St. Clair County, 2006 had the most filings at 25. There were 22 cases filed in 2005.

None were filed in 2008 and a single one was filed in 2007, according to records from the St. Clair County Circuit Clerk's Office.

St. Clair County clerk Amy Boeving said the asbestos docket is light and hardly used.

Boeving sets hearings once a month and seldom has more than one or two attorneys come through, she said.

"The last few years it's really died down," Boeving said.

St. Clair County Circuit Judge Robert LeChien handled all of the asbestos cases from 2005 to 2009. The 2010 filings have so far been assigned to St. Clair County Circuit Judge Patrick Young.

St. Louis attorney Daniel Francis, who has filed more asbestos cases in St. Clair County than any other attorney, is responsible for four of the 25 asbestos St. Clair County filed in 2006.

Of those cases, 23 named a single defendant, Illinois Central Railroad Company.

Gori has filed the second most number of St. Clair County asbestos cases.

None of the St. Clair County asbestos cases have resulted in verdicts or trials.

That differs from Madison County where juries have decided a number of cases, some having topped $200 million in jury awards.

But the most recent case to go to trial in Madison County was decided in favor of defendant Ford Motor Co.

The trial, which lasted for eight days earlier this month, was the first 2010 asbestos trial for Madison County and the first ever for Madison County Circuit Judge Barbara Crowder who presided.

Crowder is slated to become Madison County's next asbestos judge when Circuit Judge Daniel Stack retires in December. She has already begun taking over her new duties.

The Ford trial ended in a defeat for plaintiff Larry and Meta Williams of Chicago. The couple sued Ford and a number of other companies claiming that asbestos dust contained in brake products caused 58 year-old Larry Williams to develop mesothelioma.

The jury took an hour and a half to find in Ford's favor.
 

 

 

 

 

 

• Print
• Comments
• Trackbacks
• Share Link

 Ever wonder why asbestos plaintiff's lawyers presently are spending so much time and energy trying to limit the time allowed for depositions of asbestos plaintiffs ? Obviously plaintiff's lawyers on contingent fees prefer to spend less time in deposition than do defense lawyers being paid by the hour.  But, some say there is more to it than just the time.

Consider, for example, yesterday's post and today's images of asbestos products made by entities now in chapter 11. Think about the verdicts plaintiff's might lose  if insurers paid for and co-defendants actually were fully organized and prepared to depose a plaintiff on the extent of his use of the thousands of asbestos-containing products made by any of the over 80 entities that have exited the tort system via chapter 11.  Think also about the time that would be involved. Those are reasons why some say it's perfectly obvious that asbestos plaintiff's lawyers want to get shorter deposition time limits in place in order before the remaining co-defendants get organized and start using depositions to pose meaningful " product identification questions to plaintiff's product identification witnesses.

 

• Print
• Comments
• Trackbacks
• Share Link

                                        

For several years, it's been well known that eBay traders could make some money selling to plaintifff and defense lawyers old asbestos-containing products, including even old vehicles. Typically the products were acquired for use as trial exhibits.  Now,  this online web site  is trying a new marketing approach -  advertising old asbestos product catalogs as perfect items for claimants against  some or all of the over 80 chapter 11 trusts created by entities that have entered chapter 11 due to asbestos product sales.  I can imagine this working, especially for defendants stuck in the tort system that need to take discovery from plaintiffs regarding their use of products made by former defendants that exited the tort system via chapter 11.  Thus, the website home page urges:

"An excellent resource for help with Asbestos Trust Claims, research material, attorneys preparing litigation, abatement professionals, and anyone interested in knowing what everyday products contained asbestos."

All research material is actual manufacturer's catalogs and brochures in downloadable Color PDF format.

All catalogs can be purchased using  a Credit Card Card     for $39.95 each."

 The online images show old product catalogs from various former manufacturers of asbestos-containing products. Go here for the first page of an old Manville catalog for its industrial products, or go here for its transite board catalog. Or,  go here to relive Eagle-Picher’s wide range of fine ACM.   Or see below for the image from Pitt-Corning's catalog for Unibestos, a product that contained amosite.

 

• Print
• Comments
• Trackbacks
• Share Link

Here is the online agenda for a great new asbestos litigation conference on May 3 and 4.

Why great ? Because the conference format explicitly recognizes the importance of science to where the litigation has been, and where it will go.  Thus, virtually all of the speakers are doctors and scientists, including several who are world class in anyone's book.  The conference, sponsored by Perrin Conferences,  is titled:     A Conference on Asbestos and Mesothelioma. 

Science alone of course does not result in lawsuits. Accordingly, lawyers are involved to a degree. The conference chairs are two lawyers with reputations for knowing and enjoying the science side of litigation. They are plaintiff''s counsel Shep Hoffman, founder of The Law Offices of Shepard A. Hoffman, Dallas, and defense counsel, Robert Rich, a partner of Gordon Rees, San Francisco. 

The scientist are listed below - this is by far the best overall assembled group of doctors and scientists focused on asbestos. Part of the power of this group is that it includes speakers with diverging views. And, for anyone interested in the global spread of asbestos disease, and thus some spread of the litigation, do not miss the chance to hear from Dr. Julian Peto, who is at the forefront of those looking all the way around the world. 

It will be interesting to see the level of attendance, the manner in which this conference is conducted, and whether this approach is repeated for asbestos and replicated for other areas of mass tort litigation.  In the past, most asbestos conferences that included much science were conferences sponsored by one side or the other. Thus, for many, many years,  Al Parnell and the Defense Research Institue have held an annual Asbestos Medicine conference that usually included severals doctros and scientists. The conference usually also was attended by a few plaintiff's lawyers. And, likewise, the plaintiff's bar holds periodic meetings, but typically they do not allow defense lawyers to attend.

_____________________________________________________________________________

Jerrold L. Abraham, MD, Professor of Pathology, SUNY Upstate Medical University, Syracuse, NY D. Wayne Berman, Ph.D., researcher in asbestos exposure and risk and President of Aeolus, Inc., San Francisco, CA David Bernstein, Ph.D., Consultant in Toxicology, Geneva, Switzerland Arnold R. Brody, Ph.D., Department of Molecular Biomedical Sciences, North Carolina State University, Raleigh, NC Andrew Churg, MD, Professor of Pathology, University of British Columbia, Vancouver, BC David Egilman, MD, MPH, Clinical Associate Professor, Department of Community Health, Brown University, Providence, RI Murray Finkelstein, Ph.D., MD, Associate Professor, Program in Occupational Health and Environmental Medicine, McMaster University and Department of Family Medicine, University of Toronto, Hamilton, Ontario and Toronto, Ontario Allen Gibbs, MD, Consultant of Histopathologist for the National Health Service, University Hospital Llandough, Penarth, South Wales UK Graham W. Gibbs, MSc Ph.D., MRSC, ROH, President, Safety Health Environment International Consultants Corp. & Adjunct Professor, Department of Medicine, University of Alberta, Alberta, Canada

Samuel Hammar, MD, Director of Diagnostic Specialty Laboratories, Bremerton, WA Douglas W. Henderson, MB, BS, FRCPA. FRCPath, FHKCPath, Professor of Anatomical Pathology, Flinders University Adelaide, South Australia Gunnar Hillerdal, MD, Ph.D., Assistant Professor, Department of Lung Medicine, Karolinska Institute and University Hospital, Stockholm, Sweden Howard M. Kipen, MD, MPH, Professor and Interim Chair, Department of Environmental & Occupational Medicine Chief, Clinical Research & Occupational Medicine Division, UMDNJ-Robert Wood Johnson Medical School Piscataway, New Jersey Eugene J. Mark, MD, Professor of Pathology, Massachusetts General Hospital, Harvard Medical School, Boston, MA Corbett McDonald, MD, FRCP, Emeritus Professor (Epidemiology), McGill University; Emeritus Professor (Occupational Medicine), University of London, London, England Julian Peto, DSc FMedSci, Cancer Research UK Chair of Epidemiology, London School of Hygiene & Tropical Medicine London, England Victor L. Roggli, MD, Professor of Pathology, Duke University Medical Center, Durham, NC

 

 

• Print
• Comments
• Trackbacks
• Share Link

As it happens, I'm speaking this week  at an asbestos litigation conference. Yesterday's topic was asbestos bankruptcies and today's topic is international asbestos litigation.  It is therefore ironic that yesterday  the goverment in London publicly confirmed in a press release from the MOJ that the government will not reinstate pleural plaques claiming.

More analysis will have to be done later. For now, the bottom lines are:

• plaques claiming will not be reinstated
• some money will be paid by the government to persons who asserted plaques claims prior to the ruling by the House of Lords that held plaques noncompensable
• the government is going to try to foster recoveries from insurers or guarantee funds, and
• there will be more funding for scientific reasearch focused on asbestos-related disease

 Pasted below is the full text of the Ministry of Justice's release. The text includes links to the source materials.

Continue Reading...

• Print
• Comments
• Trackbacks
• Share Link

Global awareness of asbestos continues to increase. An Australian government agency issued late last week an advisory warning consumers against a set of decorative stone-like wall tiles said to contain tremolite from China. The information provided is too skimpy to evaluate the real risks. That's too bad -  one would like think that by now all government safety agencies could speak lnowledgeably and articulately about  "asbestos"  and risk.  If you'd like to see the Snow White tile, go here.

• Print
• Comments
• Trackbacks
• Share Link

Here is an article updating this prior post on the effort to amend "collusion" claims against James Hardie and CSR in an asbestos personal injury trial. In short, the court denied the motion to amend on the eve of trial in this particular case, but is said to have indicated that similar amendments might  be allowed in other cases not so close to trial. See the full text below.
_________________________________________________________________________

Judge denies late changes in asbestos case

LEONIE WOOD



February 10, 2010 .


THE Victorian Supreme Court has declined late changes to an asbestos damages case in which a Melbourne man, who is dying from mesothelioma, planned to accuse James Hardie and CSR of joining forces to disguise the dangers of asbestos.

Justice Terry Forrest said the proposed amendments in their present form would not be allowed.


Although the judge said the proposed pleadings in the case of Robert Berengo were deficient, he also made it clear that litigants in the future might well be able to allege joint liability if they properly set out the material facts and the case that is to be answered.

Mr Berengo wanted to allege that the Australian asbestos manufacturers deliberately did not put their brand names on their asbestos-related products during the 1960s and 1970s, making it harder to identify which of the two should bear liability in cases of injury and disease.


He also wanted to allege that the companies had agreed to co-operate to dissuade regulators from restricting the use of asbestos and to influence public opinion about the dangers of their product.


Mr Berengo's trial, in which he accused the two companies of negligence, begins on Tuesday

• Print
• Comments
• Trackbacks
• Share Link

As described in this article, Crown Cork and Seal continues its efforts to obtain legislative solutions for its unique asbestos litigation risks. Key excerpts are below from an article about action by the legislature in Virginia:

A closely divided House of Delegates voted Monday to shield a company from liability to asbestos-related health claims.


"Del. Terry Kilgore's bill, HB 629, doesn't mention any company by name. But the way it is drafted, it applies to only one: Crown Cork & Seal, a Philadelphia-based manufacturer of cans and bottle caps. It has plants in Suffolk and Winchester.


Crown Cork & Seal has never manufactured any products containing asbestos. But in 1963 it purchased the stock of Mundet Cork Co., which had an insulation division that it sold 90 days later. Under existing law, Crown is liable to lawsuits resulting from the presence of asbestos in Mundet's insulation products.


Kilgore's bill. which won preliminary House approval, limits Crown's asbestos-related liability to the value of Mundet's assets at the time it was purchased.


Kilgore, R-Lee County, characterized the measure as a "jobs bill," saying it would protect a Virginia employer from potentially crippling litigation. Dozens of asbestos companies have been driven into bankruptcy by billions of dollars in lawsuits brought by workers who contracted deadly lung diseases from handling the material."

• Print
• Comments
• Trackbacks
• Share Link

The asbestos litigation pot continues to boil in Australia. Over the last couple of weeks, CSR was denied the opportunity to split its business, a topic I keep hoping to get to, but life is busy. For now, here is a new article about plaintiff's seeking to amend a complaint to seek to prove up purported collusion between Hardie and CSR. How much does that sound like US litigation ?  The text also is pasted below.

___________________________________________________________________________

Hardie, CSR 'colluded', sufferer says LEONIE WOOD


February 8, 2010 .

THE building products manufacturers James Hardie and CSR have been accused in court of joining forces during the 1960s and '70s in a bid to dissuade regulatory authorities from restricting or controlling the use of their potentially lethal asbestos products.

The court has also heard allegations that James Hardie and CSR deliberately did not mark their company names on asbestos-laden products so that they could conceal which company manufactured them - a move which, the court heard, would make it harder to identify which company had liability for future claims of potential injury or disease.

The allegations emerged on Friday before Justice Terry Forrest in the Victorian Supreme Court during preliminary proceedings ahead of a trial in which a Melbourne man, Robert Berengo, is claiming damages from James Hardie's asbestos liability fund, Amaca, and from CSR.

The fresh allegations come just days after Justice Margaret Stone in the Federal Court in Sydney cruelled CSR's plans to spin off its sugar business, citing concerns about the company's future ability to meet asbestos-related claims.

Justice Forrest will decide tomorrow if Mr Berengo's lawyers can amend his statement of claim to incorporate the new allegations of collusive behaviour.

If the judge allows the allegations to proceed, it may pave a new route for claimants in asbestos-related cases who often struggle to prove which of the two Australian asbestos manufacturers was responsible for products that caused their asbestosis or mesothelioma.

Counsel for both James Hardie and CSR criticised the form of the proposed amendments, with Graeme Uren, QC, for CSR describing them in court as ''a porridge of assertions that don't lend easily to a legal conclusion''.

Mr Berengo was a young boy in the early 1970s when he accompanied his father, a builder, to properties where asbestos-cement sheeting and other asbestos products would be sanded, altered or removed.


The proposed allegations are that James Hardie and CSR, which owned Wunderlich, had an agreement or arrangement about how they would influence Australian public opinion and regulatory authorities in the 1970s, and that they co-ordinated their lobbying of authorities and responses to media articles to stifle public concerns about asbestos.

Counsel for Mr Berengo, John Gordon, told the court that his client planned to allege that ''over a considerable period of time, the two companies ... formed arrangements, agreements or an understanding to act together to influence the public debate on the dangers of asbestos, and to influence regulatory authorities on the control of, and the use of, the asbestos''.

He said that, as a result, the public was not warned by the companies of the risks and dangers of using asbestos products.

CSR sold Wunderlich to James Hardie in 1976. The case is due to begin on February 15.

• Print
• Comments
• Trackbacks
• Share Link

Here's another example of global activism regarding asbestos.  Here is the article online; the full text is pasted below.


February 1, 2010


Indian workers rebuke Quebec over asbestos


By CBC News


Unionized workers and activists in India capitalized on Quebec's trade mission this week to blast the province for its active role on the global asbestos market.


Unionized workers and activists in India capitalized on Quebec's trade mission this week to blast the province for its active role on the global asbestos market.

'It will be remembered as an act of barbarism in the history of industrial development where asbestos was knowingly allowed to be used, and where workers were knowingly subjected to it.'?Gobal Krishna, activist


While Quebec Premier Jean Charest led his 130-person mission through meetings with local business leaders and entrepreneurs, Indian opponents spoke out against the asbestos industry, blaming it for making workers in the subcontinent ill.



It's hypocritical for Quebec to ban the use of chrysotile asbestos at home, while selling it to countries in the developing world, said activist Gobal Krishna.


"It will be remembered as an act of barbarism in the history of industrial development where asbestos was knowingly allowed to be used, and where workers were knowingly subjected to it," Krishna told reporters at the news conference in Mumbai.



Asbestos has been banned by nearly every developed country and a growing number of developing nations, but countries like India still rely on the flame-resistant mineral for construction projects.




At least 20 per cent of workers in India are exposed to asbestos on a regular basis, and the building material is responsible for making many Indian workers sick, accused Sanjay Singhvi, secretary general of the Trade Union Centre of India, a labour federation.



Asbestos can't be used safely in India, he said.


The United Nations says chrysotile asbestos, widely used in building materials, accounted for about 94 per cent of global asbestos production and is considered a carcinogen by the World Health Organization. At least 90,000 people die each year from asbestos-related diseases such as lung cancer and mesothelioma, the UN said.



Singhvi said he was disappointed Charest refused to meet with his organization during the weeklong trade mission. Charest's office said Quebec promotes the responsible use of asbestos.

Quebec exports to India hit $427M


Charest arrived in Mumbai on Sunday with 130 Quebecers participating in the trade mission.



The premier said the mission aims to promote Quebec expertise in infrastructure, environmental technologies and telecommunications to the Indian market, which counts more than 1.2 billion people.


Thirteen deals were penned between Quebec and Indian companies on Monday, including an agreement with a Quebec City company specializing in cleaning industrial waste water.


Quebec exported $427 million in goods to India in 2008, including airplanes, paper, asbestos and electronics.


Opposition Parti Québécois members accuse Charest of fleeing to foreign lands in order to avoid political pressure at home, including calls for a public inquiry into the province's dysfunctional construction industry.


Quebec operates two asbestos mines.

• Print
• Comments
• Trackbacks
• Share Link

Remember those controversies about biased doctors misreading reading x-rays to find asbestosis or "pleural changes consistent with exposure"  to asbestos or silica ?  New science will bring new controversies - see below for a recent article on using biomarkers in exhaled breath to find asbestosis. Here is the online source of the abstract pasted below.

_____________________________________________________________________________

Exhaled breath condensate biomarkers in asbestos-related lung disorders.


Sharron Chow, Charlotte Campbell, Alessandra Sandrini, Paul S Thomas, Anthony R Johnson, ...Deborah H Yates show all

Respiratory Medicine (2009)

Volume: 103, Issue: 8, Pages: 1091-1097

PubMed ID: 19520561

Abstract

OBJECTIVES: Asbestos induces generation of reactive oxygen and nitrogen species in laboratory studies. Several such species can be measured non-invasively in humans in exhaled breath condensate (EBC) but few have been evaluated. This study aimed to assess oxidative stress and lung inflammation in vivo. METHODS: Eighty six men were studied: sixty subjects with asbestos-related disorders (asbestosis: 18, diffuse pleural thickening (DPT): 16, pleural plaques (PPs): 26) and twenty six age- and gender-matched normal individuals. RESULTS: Subjects with asbestosis had raised EBC markers of oxidative stress compared with normal controls [8-isoprostane (geometric mean (95% CI) 0.51 (0.17-1.51) vs 0.07 (0.04-0.13) ng/ml, p<0.01); hydrogen peroxide (13.68 (8.63-21.68) vs 5.89 (3.99-8.69) microM, p<0.05), as well as increased EBC total protein (17.27 (10.57-28.23) vs 7.62 (5.13-11.34) microg/ml, p<0.05), and fractional exhaled nitric oxide (mean+/-SD) (9.67+/-3.26 vs 7.57+/-1.89ppb; p<0.05). EBC pH was lower in subjects with asbestosis compared with subjects with DPT (7.26+/-0.31 vs 7.53+/-0.24; p<0.05). There were no significant differences in exhaled carbon monoxide, EBC total nitrogen oxides and 3-nitrotyrosine between any of the asbestos-related disorders, or between these and controls. CONCLUSION: In asbestos-related disorders, markers of inflammation and oxidative stress are significantly elevated in subjects with asbestosis compared with healthy individuals but not in pleural diseases

• Print
• Comments
• Trackbacks
• Share Link

Here is the entire press release (which includes links)  regarding an April 10, 2010 asbestos disease awareness conference set for April 10 in beautiful Chicago. The conference is organized by, among others, the Asbestos Disease Awareness Organization and Laurie Kazan-Allen, who is the sister of American plaintiff's lawyer, Steve Kazan. Through an entity commonly known as IBAS, Ms. Kazan-Allen has devoted well more than 15 years trying to ban the use of asbestos around the globe, and has achieved some signficant success.

Unlike many current and future defendants/corporations/makers/users, and their lawyers, the advocacy groups for victims/plaintiffs are thinking globally. Indeed, well-known plaintiff's experts are part of the advocacy effort. Thus, during the conference,  Dr Arthur Frank and Dr. Richard Lemen are part of a panel session on global advocacy, as is set out below from the conference agenda. Also set out below is a summary of all speakers, except the keynote speaker, who is to be designated later. 

______________________________________________________________________________
Session IV Global Advocacy and the Continuing Crisis - Chairperson: Arthur L. Frank, MD, PhD




3:15 - 3:35 Latin America's Asbestos Struggle!, Fernanda Giannasi, Brazil


3:35 - 3:50 Canadian Asbestos: A Global Concern, Canadian Member of Parliament, Pat Martin


3:50 - 4:05 Governmental Agencies Role in Protecting Public Health, Richard Lemen, PhD, MSPH


4:05 - 4:20 Progress Update: The Americas, Barry Castleman, ScD


4:20 - 4:35 A Victims' Call to Action!, Laurie Kazan-Allen, International Ban Asbestos Secretariat (IBAS)


4:35 - 4:45 Panel Q & A, Moderator Arthur: L. Frank, MD, PhD


"ADAO's 6th Annual International Asbestos Awareness Conference


REDONDO BEACH, Calif.--(BUSINESS WIRE)--The Asbestos Disease Awareness Organization (ADAO) will host its 6th Annual International Asbestos Awareness Conference in Chicago, IL, on Saturday, April 10, 2010, with activities throughout the weekend. The international conference will provide education and outreach to families, employers/employees, and scientists throughout the world as part of ADAO's continuing effort to educate the public about the dangers of asbestos, ban its use, and encourage research efforts to improve treatment options. Prominent physicians, scientists, and safety and health care professionals who are experts in the area of asbestos representing the United States, Canada, England, Brazil, and Germany will present current information regarding the status and impact of asbestos in the United States and globally. Discussion will include facts on exposure, asbestos-related diseases and how to prevent them, and where to turn for help. The international conference is made possible by ADAO, the Barbara Ann Karmanos Cancer Institute, and the International Ban Asbestos Secretariat.

WHERE:  Marriott Renaissance Hotel

1 Wacker Drive , Chicago, Illinois

WHY:     To share information and provide support to those affected by asbestos-related diseases, including survivors, families, and physicians. Prominent physicians, scientists, safety and health directors, and survivors will present current and up-to-date information regarding the status of asbestos in the United States and worldwide.

WHO:     Brad Black, M.D., medical director, Center for Asbestos Related Disease; Barry Castleman, ScD, environmental consultant; Jeff Camplin, CSP, CPEA; Sean Fitzgerald, PG; Arthur Frank, M.D., Ph.D., chair, Department of Environmental and Occupational Medicine, Drexel University's School of Public Health; Patrick Gerkin, Ph.D., assistant professor, Grand Valley State University; Fernanda Giannasi, ABREA; Michael Harbut, M.D., MPH, FCCP, co-director, National Center for Vermiculite and Asbestos-Related Cancers, Karmanos Cancer Institute; Tanis Hernandez, LCSW, Center of Asbestos Related Disease; Laurie Kazan-Allen, founder and coordinator, IBAS; Hedy Lee Kindler, M.D., University of Chicago, and president, International Mesothelioma Interest Group; Richard Lemen, Ph.D., MSPH, former Assistant Surgeon General; Terry Lynch, International Vice President, Insulators Union; The Honorable Patrick Martin, member, Canadian Parliament; Linda Reinstein, executive director and co-founder, ADAO; Kimberly Rowse, RN, Center for Asbestos Related Disease; Jordan Summer, musician; James Webber, Ph.D., research scientist, Wadsworth Center; Jordan Zevon, ADAO national spokesman and musician."

• Print
• Comments
• Trackbacks
• Share Link

Back to Australia, asbestos and James Hardie.

As described in this prior post, a rather dry paper by KPMG describes the history of James Hardie and its many intersections with asbestos and asbestos-containing products. That dry look is of course needed and appropriate in the sense that decisions need to be made based on technical information.

There are other sides to the story. A new expose/investigative journalism book is out regarding James Hardie. A book review is set out below from the Ban Asbestos web site run by Laurie Kazan-Allen, sister of an American plaintiff's lawyer, Steve Kazan. The review is by Jock McCulloch, who also has written books on "asbestos companies."  The words of the book review are  worth reading as a counterweight to the dry story told by KPMG.
_____________________________________________________________________________________

Book Review: Killer Company - James Hardie Exposed

Matt Peacock. Sydney: ABC Books, 2009

Reviewed by Jock McCulloch

Australia has the highest recorded incidence of mesothelioma in the world because in the period from 1945 until the mid 1970s Australia was one of the highest users of asbestos based products. The local market was dominated by a single firm James Hardie Asbestos and to a large degree the Australian asbestos story is the story of James Hardie.

James Hardie shares much in common with Johns Manville, Eternit and Turner & Newall. Hardie was a vertically integrated company which enjoyed great commercial success in the decades after 1945. That success was built on an ever widening range of building and insulation materials. Hardie owned asbestos mines in Australia, Canada and briefly in Zimbabwe and manufacturing plants in Australia, New Zealand, Malaysia and Indonesia. Like Johns Manville, it has survived the asbestos scandal to re-invent itself as a non-asbestos building materials manufacturer. Like Johns Manville, James Hardie has used a variety of strategies to inure itself from the people it has injured.

Killer Company is a major contribution to the literature on the asbestos industry. The book has grown out of Matt Peacock's sustained engagement with the issue of asbestos and health. It is based on long hours of archival work sorting through Hardie's internal correspondence. Peacock has also interviewed many of the key players. The result is an insight into the mentality and behaviour of an important asbestos company.

Matt Peacock has played a major role in publicising the risks of asbestos in Australia. In his work as a journalist he has helped to expose the behaviour of the asbestos industry toward its employees, and the consumers of its products. In 1977 Peacock broke the story of Baryulgil, a small chrysotile mine which Hardie operated in northern New South Wales. The work force at Baryulgil was drawn from the indigenous Bundjalung people who lived and worked under conditions every bit as severe as those endured by black workers in South Africa. It was Matt Peacock not James Hardie who warned the community of the risks of asbestos disease. He was also instrumental in forcing a Parliamentary enquiry into the operation of the Baryulgil mine.

In Killer Company Peacock reviews the extent to which Hardie's senior management engaged in the same kind of behaviour that has been documented in British and US courts about Cape Asbestos, T&N and Johns Manville. Hardie knew far more about the risks of asbestosis, lung cancer and mesothelioma than did regulatory authorities or trade unions. Armed with that knowledge it refused over a period of decades to reduce the risks faced by its employees or the users of its products. When a flood of litigation began in the mid 1970s Hardie avoided bad publicity by settling cases out of court. When that failed it sought to move its assets out of the reach of potential claimants. The bad publicity surrounding a move of assets to The Netherlands in 2004 has seen James Hardie become probably the most reviled corporation in Australia. Peacock shows that such a reputation is well deserved.

The health risk of asbestos has taken many forms from workplace exposure, to the dumping of waste and the use of fibre in the most unlikely of products such dental amalgam and children's play dough. Until the 1970s it was common for waste from Hardie's Adelaide factory to be used to dress domestic driveways, pathways and garage floors. In New South Wales thousands of tonnes of waste was dumped into rivers and creeks and on roadways and football ovals. Such waste is virtually indestructible but at least when deposited outdoors by-stander exposure to airborne fibre is sporadic.

Each year thousands of tonnes of crocidolite, amosite and chrysotile arrived at Hardie factories which resulted in the accumulation of hundreds of thousands of hessian bags. In Sydney and Melbourne the bags were recycled by market gardeners to carry potatoes, carrots and onions. In Western Australia wheat farmers received fertiliser in the same bags. Over the period from 1944 to 1966 the Wittenoom crocidolite mine in Western Australia produced 160,000 tonnes of fibre. That fibre was transported in 45 kilograms hessian bags. Matt Peacock has discovered that hundreds of thousands of those bags ended up in domestic dwellings as carpet underlay. Consequently, an unknown number of Australian homes have been contaminated and an unknown number of residents continue to live at risk, every hour of every day.

There is no easy way to estimate the human and commercial cost of the asbestos industry. That is because in parts of Asia and SE Asia the industry is alive and well. It is also because as Matt Peacock has shown the extent of by-stander exposure in the OECD states is still unfolding.

Killer Company is an important book.

Jock McCulloch

School of Global Studies

RMIT University,

Melbourne,  Australia.

January 21, 2010


_________________________________________________________________________________

There are several other "business history" books related to "asbestos companies." Most of them include significant footnotes and bibliographies:


Blue Murder, by Ben Hills, describes in detail the situation related to the Wittenoom crocidolite mine in Australia, a mine owned for decades by CSR. The book discusses many things, including corporate fiber purchasers and uses.

Asbestos House - The Secret History of James Hardie Industries, by Gideon Harris, is a comprehensive account of that company. Numerous mentions are made of relationships between James Hardie, Turner & Newall, Cape Industries, Johns-Manville, and CSR.

The Way From Dusty Death, by Peter Bartrip, is a comprehensive discussion of Turner & Newall and asbestos regulations in the UK from the 1890s through 1970. This book also discusses interactions between various industry titans, including Cape Industries.

Jock McCulloch has written two books on asbestos, focused primarily on mines in South Africa that were the sources for all of the world's amosite fiber, and much of the world's crocidolite fiber. The mines were owned by Cape Industries entities and various other entities. One book is: Asbestos: It's Human Cost, and was published in 1986. McCulloch's second book was published in 2002, and is titled: Asbestos Blues, Labour, Capital, Physicians and the State in South Africa.

Mr.  McCulloch and Geofrey Tweedale combined to write a 2008 book, Defending the Indefensible, the Global Asbestos Industry and It's Fight for Survival.

In addition, Mr. Tweedale also has written extensively regarding Cape Industries and Turner & Newall/T & N. One of his publications is the book titled Magic Mineral to Killer Dust, Turner & Newall and the Asbestos Hazard.

• Print
• Comments
• Trackbacks
• Share Link

A summary article from Insurance Business Review is online here, and is pasted below.
____________________________________________________________________________

UK Asbestos-Related Claims To Be Around £11bn For 2009 To 2050


Published:26-January-2010

By Staff Reporter

Total undiscounted cost of UK asbestos-related claims to the insurance market is expected to be around £11bn for the period 2009 to 2050, according to a research by Actuarial Profession's UK Asbestos Working Party.

The research identified that the proportion of people suffering from mesothelioma that subsequently make a claim for compensation has almost doubled between 2004 and 2008.

Of £11bn figure, 90% relates to mesothelioma and over £9bn relates to the period 2009 to 2040, compared to £4.7bn of the working party's 2004 estimate for the same period.

According to Actuarial Profession, the proportion of mesothelioma sufferers that have made a claim for compensation has increased from around one-third in 2004 to nearly two-thirds. This change, which was not expected in 2004, has become evident in recent years and explains most of the increase in total costs.

In addition, the working party has taken into account the Health and Safety Executive's statisticians' revised projections of the number of future deaths from mesothelioma in Great Britain, released in 2009, in conjunction with other projection models.


Brian Gravelsons, chairman of UK Asbestos Working Party, said: "Insurers will of course have already noticed the increased number of claims from mesothelioma sufferers, so these developments won't be a surprise to them. However, the working party's projections will provide the insurance industry with a consistent reference point to help it assess its asbestos liabilities.

"There is still considerable uncertainty surrounding the future cost of asbestos claims, as the number of people that will be diagnosed with mesothelioma many years into the future cannot be accurately predicted. The working party will continue to monitor the emerging experience and update its projections accordingly."

• Print
• Comments
• Trackbacks
• Share Link

This January 2010 article from South Africa reports on this new auditor general report raising major issues regarding failed clean up of mines, including old asbestos mines. As to asbestos mines, it says:

• Abandoned asbestos mines constitute 3,84% of the total population of abandoned mines. As at April 2008 there were 144 asbestos mines: 45,83% had been rehabilitated, 8,33% had been partially rehabilitated and 45,83% had not been rehabilitated. The status of asbestos mines in the different provinces of South Africa is illustrated in graph 1.

 
 

• Print
• Comments
• Trackbacks
• Share Link

Go here to see the new filings summary from the Madison  County Record. Of 28 cases, 14 are said to be lung cancer cases and 14 are mesothelioma cases. 13 of the lung cancer cases are filed by Simmons, Browder et al and 1 by the Gori, Julian firm. One could infer that Simmons, Browder et al want to make sure they have plenty of work to fill slots in trial dockets, and want to guard against a falling rate for persons to develop mesothelioma.

• Print
• Comments
• Trackbacks
• Share Link

Google caught a story and photos of an old, intricately painted asbestos theater curtain in Prescott, Arizona.
The article is here. A short video is here.

• Print
• Comments
• Trackbacks
• Share Link

The point of today's post is to focus attention on issues and topics that arise from relationships between insolvencies and multinationals heavily involved in selling asbestos fibers and/or asbestos-containing products, and their implications for present and future tort claiming and the ability to enforce bankruptcy court injunctions. To illustrate that the topic is well-grounded in fact, the text below provides a specific example, plus the names of books that describe some multinationals which, in addition to Eternit (see last Friday's post), were very heavily involved in global sales of raw asbestos fiber and/or other products containing large amounts of asbestos.

The topic of multinational relationships vis a vis asbestos claiming and insolvencies has been largely free of careful, public attention during chapter 11 cases. As a result, when chapter 11 trusts were created, little or no provision was made for future international claims, meaning claims to be asserted from overseas against an entity now subsumed by a chapter 11 trust. Such claims were at most handled in name only, with virtually no specific anticipation of the volume of or value of future claims from other nations. What's my basis for saying that no one has ever publicly and specifically estimated the volume and value of overseas claims against US trusts? One basis is general knowledge from involvement in asbestos litigation for 25 years. But, more specifically, that also was the conclusion during an asbestos seminar panel discussion last year. The discussion was part of a March 2009 panel consisting of Steve Kazan (a senior member of the asbestos plaintiff's bar and a lawyer who is very active in international asbestos claiming), Francine Rabinovitz (a wonderful economics and policy expert who advises many trusts, companies and others on future asbestos claiming), and me.

Despite the absence of formal, public estimates of overseas claims, some of the chapter 11 cases have included broad injunctive orders granting debtor entities (and non-debtor entities) the widest possible injunctive relief to protect them against any and all possible future claims, on a global basis. Such orders purport to channel all such claims to the trust created in chapter 11. Issuing global injunctions without meaningful notice and due process is a procedure that is deeply flawed for all concerned, and so will not bind all future claimants, thereby leading to endless claiming and wasted attorney's fees.

On a short-term view, the broad shotgun injunction no doubt appeals to debtors because they (usually) want to exit chapter 11 quickly, and also seek maximum future certainty by obtaining the broadest injunctive protection against any and all future claims. But, the short term approach should be tempered by the reality that the company will not be able to enforce an overbroad, unconstitutional injunction issued without meaningful notice and due process. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812, n.24 (1985)(class action cannot bind persons who were not accorded due process); Stevenson v. Dow Chemical Co., 273 F.3rd 249 (2d Cir. 2001)(class action cannot bind persons who were not adequately represented). Thus, in fact, there is in fact uncertainty if a company is basing its future on an unenforceable injunction.

Overbroad injunctions issued without meaningful notice and due process procedures certainly are adverse for (and illegal as to) a future claimant whose claim may be enjoined when there was no person adequately representing the interest of the overseas claimants whose claims were not actually anticipated in and properly provided for in the insolvency proceedings . As described above, the chapter 11 cases to date have done nothing or very, very little to provide meaningful notice or fair compensation for future overseas claims or claims that arise from corporate interactions, such as joint ventures.

Recognize also that the future claimants also include other corporate entities that will or should be co-defendants in future underlying cases. Like future personal injury claimants, these entities also have not been given meaningful and timely prior notice of proceedings, much less an opportunity to be heard at a meaningful time. Accordingly, to my knowledge, there have not been any hearings to formally and publicly estimate the amount or value of contribution or indemnification claims that current and future co-defendants could or should assert against an insolvent multinational due to both allegedly contributing to the asbestos "exposures" that lead to "asbestos disease."

What kind of corporate interrelationships exist that ought to be carefully, explicitly and publicly considered in the insolvency cases? Consider, for example, the following excerpt from this paper on Eternit (see also last Wednesday's post on Eternit entities.) Specifically, note the assertion that Eternit entities had tight ties to two major asbestos producers that have now been through insolvency - Johns-Manville and T& N/Turner & Newall. Thus, the Eternit paper asserts:

"1960 Eternit Belgium, Johns-Manville (US), T&N and Eternit France together form TEAM, under whose auspices many new [asbestos-cement] firms are established in Asia.

"70-90 Influenced by the debate around the dangers of asbestos, British and American firms are the first to begin to withdraw from the market. T&N and Johns-Manville transfer their interests in TEAM to Eternit Belgium. In addition, Eternit Switzerland withdraws, selling a growing proportion of its interests to Eternit Belgium. By 1989 almost everything which was originally divided between a number of other firms is in Belgian hands. This includes the US firm Eternit Inc."

Want more? Plenty of facts on inter-corporate relationships are out there through books that describe extensive ties between multinational "asbestos companies." In general, the ties consists of joint ventures, sharing knowledge on manufacturing techniques, and sharing information on asbestos health effects. Companies also interacted with each other through inter-company sales of raw asbestos fiber and other products containing asbestos. All of these actions are ones that may give rise to shared liabilities and/or aiding and abetting liability. Here are some examples of the available books; most of them include significant footnotes and bibliographies:



Asbestos House - The Secret History of James Hardie Industries, by Gideon Harris, is a comprehensive account of that company. Numerous mentions are made of relationships between James Hardie, Turner & Newall, Cape Industries, Johns-Manville, and CSR.

The Way From Dusty Death, by Peter Bartrip, is a comprehensive discussion of Turner & Newall and asbestos regulations in the UK from the 1890s through 1970. This book also discusses interactions between various industry titans, including Cape Industries.

Jock McCulloch has written two books on asbestos, focused primarily on mines in South Africa that were the sources for all of the world's amosite fiber, and much of the world's crocidolite fiber. The mines were owned by Cape Industries entities and various other entities. One book is: Asbestos: It's Human Cost, and was published in 1986. McCulloch's second book was published in 2002, and is titled Asbestos Blues, Labour, Capital, Physicians and the State in South Africa.

Messrs. McCulloch and Tweedale combined to write a 2008 book, Defending the Indefensible, the Global Asbestos Industry and It's Fight for Survival.

In addition, Mr. Tweedale also has written extensively regarding Cape Industries and Turner & Newall/T & N. One of his publications is the book titled Magic Mineral to Killer Dust, Turner & Newall and the Asbestos Hazard.

• Print
• Comments
• Trackbacks
• Share Link

Here is the online image of Munich Re's recent, comprehensive report on asbestos litigation, Asbestos: Anatomy of a Mass Tort. The 112 page report is authored by Nicholas Roenneberg, and is Order number 302-06142. The report can be downloaded and printed from this page.
The same page, on the right hand side, allows you to order a printed copy at no charge.

The report is quite good. It begins with a review of asbestos litigation in North America. The report goes on to explain and explore various factors relevant to reinsurers such as Munich Re.

Beginning at page 58, the report addresses asbestos claiming in other nations in the context of employers' liability. The report covers the UK, Ireland, Italy, Spain, France, Czech Republic, Japan and Brazil. These country-specific reports are well worth reading to better understand the global asbestos claiming situation.

_____________________________________________________________

I owe a hat tip and thanks to Christian Lahnstein of Munich Re for bringing the report to my attention this past fall, and for provding value contributions to dialog regarding mass tort claiming. Christian is a very thoughtful thinker and speaker on the subject of asbestos claiming and its consequences. Indeed, he is thoughtful enough that at a dinner before an international asbestos conference this past fall in London, a smart plaintiff's lawyer listened to Christian for a while and then commented that he was surprised to learn that Christian works in the insurance industry.

• Print
• Comments
• Trackbacks
• Share Link

Monday's post (12/26) pointed out a variety of product liability, corporate law and compensation issues in the context of one nation (India) and a small group of apparently independent asbestos-cement companies. The point of today's post is to illustrate macro level complexities that arise due to the cross-border issues that arise from multinationals, globalization and immigration, among other factors. A few country-specific points also are noted.

Today's post focuses on the large number of Eternit, Etex and other related entities that for decades have comprised a literally global network of manufacturers of asbestos-cement. Today, some of these companies are in the news because of the recent start of an Italian trial to resolve combined civil and criminal charges involving over 2,500 injuries and deaths suffered by persons injured by asbestos inhaled at manufacturing facilities operated in Italy by Eternit entities. In the trial, individual officers and managers face Italian law charges that are more or less akin to reckless homicide, with the charges related to Italian laws requiring a safe workplace. Additional media stories exist because one of the defendants is a billionaire, and he is busy with actions that rightly or wrongly seek to portray Mr. Schmidheiny as a person who is both "green" and concerned about other people.

Global Scale, Decades Ago: What are sources for facts discussed in this post ? As to the entities in general, this substantial paper provides an extensive and apparently reasonably credible hundred year history of various Eternit entities sprawled around the globe (but note the paper is prepared by partisans plainly interested in causing Eternit entities to make compensation payments.) The paper can be skimmed in just a few minutes to obtain a basic grasp of the global scale and inter-connected nature of the operations. A basic summary is that the entities operated across Europe, Africa, South America and Asia. The paper also describes extensive transfers of business operations between and among entities. For more background and specifics on the trial in Italy, please look to the left for prior posts indexed under Eternit and/or go to this partisan website operated by persons who support the injured persons. Articles here and here relate to Mr. Schmidheiny and his image/actions.

The bottom line ? Actions of Eternit and Etex entities, and their officers and managers, plainly caused many deaths and injuries among plant workers around the globe, and no doubt more deaths and injuries of plant workers will follow in future years. One also may reasonably assume that so-called "take home" exposures have produced some number of deaths or injuries among spouses of plant workers through fact patterns such as a wife contracting mesothelioma due to having shaken out and washed a husband's work clothes laden with asbestos fibers. It also seems fair to conclude that injuries and deaths also have occurred and will continue among persons who worked for contractors who performed services at the plants, such as persons who installed, removed, or serviced a factory boiler. In the US, the latter incidents would give rise to "premises liability" claims. In addition, some additional number of current and future product liability claims will arise among persons who sawed, drilled, broke or otherwise worked directly with asbestos-cement or other Eternit products. For all of these groups of current and future victims of disease, one assumes that some significant number of persons and/or their families will have migrated to other nations.

The injuries and deaths arising from decades of global operations and transfers of business operations will provide the factual grist needed for plaintiff's lawyers, defense lawyers and insurance company lawyers to write and argue a wide range of legal positions on a wide range of liability, compensation and insurance issues. The various positions will be further colored by the years in which relevant action or inaction did or did not occur. The issues for example logically would require parsing which entities and/or officers and directors are directly liable to pay which claims, whether as defendants facing civil claims or via mitigation payments to reduce criminal sanctions ? Also, are those entities or persons financially protected by insurance or other indemnities ? Which entities, persons, insurance policies, or insurers are known, still exist , and are financially viable ? Can funds be obtained from solvent reinsurers who lurk behind insolvent primary insurers?

Other issues may arise regarding which entities or persons are entitled to make claims or decisions regarding insurance or other assets. And, all of these issues will arise under the laws of myriad nations. Moreover, health care costs associated with the injuries will be incurred in myriad nations under myriad legal rules regarding the recoverability of such expenses. To the extents the costs are not recovered from Eternit entities, they will have imposed a burden on the "economic commons" of many nations, and those burdens will be suffered for several future decades due to the 20-50 year latency periods associated with cancers caused by asbestos inhalation.

Also consider the impacts of corporate papers written in myriad languages, and myriad rules on discovery. And bear in mind that most of the paper will not be in digital form. Also think about if and when relevant papers were destroyed or preserved.

County-Specific Topics: To highlight just a few of the legal issues, one may look at the Italian trial to see both differences and similarities when compared, tor example, to the US legal system. One difference between US and Italian law is that Italy allows joinder of both criminal charges and civil claims, an approach that would set off shock waves if used in the US. Second, note that the trial includes claims by Italian government agencies seeking to obtain repayment of expenses incurred for medical care for injured persons. Thus, another example of the reality that diminishing government resources lead to more claiming, and that the US is not unique in being a home for lawsuits seeking government cost recoveries. Note also that the Italian system moves more slowly and in different ways than does the US system. Thus the prosecutors gather and share information and evidence in conjunction with testimony taken at various times before one or more judges. Note finally that the trial coverage highlights yet again the risk related to corporate reputation.

Macro Issues: So, who pays, when and how given a history of inter-related entities spread across the globe, many transfers of entities and assets, and many nations with an apparent interest in asserting jurisdiction and trying to provide due process for both claimants and defendants ? And, how does society cope with the reality that some of the victims probably have moved to other parts of the distant from where they inhaled fibers, and that faux victims will emerge ?

Litigation of course is an option. Consider, however, the incredible amount of wasted resources we saw in US asbestos litigation that took place mainly under one language and with mainly state-based rules of law that vary, but are not so terribly different in their general framework. Now consider the inefficiencies plainly ahead when the Eternit/Etex issues described above will unfold globally in myriad languages under rules of law that in some cases are now fixed but in other cases have yet to be written or decided in developing countries.

For all the above issues, who can or should speak for which future personal injury claimants? Who can or should speak for governments or others who incur health care costs resulting from Eternit-caused injuries ? Who can or should speak for other corporate defendants that will be called on to pay for some or all of the injuries caused by work at Eternit plants or by Eternit products? Who speaks for US and non-US asbestos trusts and/or foundations that will be called on to pay for some or all of the injuries caused by work at Eternit plants or by Eternit products? Who speaks for solvent or insolvent insurers or solvent insurers that are trying to cut off their future payments and risks by participating in "schemes of arrangement" in the UK, the United States or other nations?

• Print
• Comments
• Trackbacks
• Share Link

I keep falling off the "global" side of things. So, this week, I'll make a special effort to be more global. This week I'm also going to try to focus more on the wide range of issues regarding "future" claims. By future claims, I mean future tort or business to business claims that possibly, likely or probably will arise as a result of past and/or current and/or future sales of products that involve risks, whether known, knowable or evolving.

Issues to Ponder: The starting point is India and its booming production of asbestos cement products. As detailed in the articles described below, there are myriad entities involved in and expanding their businesses in India producing asbestos cement products. Plainly, the manufacturing process itself sales produces risks of future physical injuries, and so do sales of the products. So, given the asbestos injury debacles still ongoing in North America, Europe and Australia, what should one think about these processes and sales in other nations. Should asbestos fiber be sold at all since, without it, there is no industry ? Should asbestos-cement sales be allowed ? Should the manufacturers be required to issue warnings in languages geared at the likely readers ? How big should the warnings be? How permanent should the warnings be - after all, someone will dismantle or cut these sheets some day in the future ?

Should the manufacturers be required to buy minimum levels of insurance in case they are wrong in their hopeful assessment that risks are low ? Is insurance even available or is there an "asbestos exclusion" of the sort put into place in the US in the early to mid-1980s? Either way, should their be minimum capital requirements for conducting a business that plainly involves some level of risk? Should these companies be allowed to do business for 20 years and then fold up and exit before cancers arise after lengthy latency periods ? Should they exit through dissolution, insolvency, or chapter 11 like proceedings? Should we judge the actions of the companies, their insurers and their customers based on what we know and have been through in the US, Europe and Australia, or should a different standard apply?

If the risks prove to be greater than stated and/or expected, how much should be paid as compensation when future cancers arise? Should legislation be put in place now that will let insurers keep down premiums and that will warn asbestos-cement users that future damages for a potentially horrible death by mesothelioma will be capped at 1,000,000 rupees? But, what happens when exposed persons migrate to new nations, start families and then become sick (or at risk) in other nations? Will those caps apply ? Will the caps apply to risks of cancer or other disease, or just an actual, manifest disease itself?

If there is much future claiming, shall we (once again) blame the lawyers involved? Shall we blame the business persons who went ahead producing asbestos-cement, knowing they were exposing others to risks and failing to confront fully some very real issues with predictable possible future consequences? Or, shall we blame government officials who let the issues go ? Or, shall we just let the topic unfold on its own, trusting that there will be an economic market-based solution ? Will that solution involve litigation funders? Multinational plaintiff's firms?

Will science save the victims ? In 5, 10 or 20 years, will cancer be a manageable disease? Curable? Always? Sometimes ? For some genomes, but not others? For some cancers, but not others? Will it all depend on when the disease is first spotted as having started at the cellular level?

Simply put, we are now at a time where intelligent, sentient beings are not able to credibly deny the foreseeability of the future issues that may arise. Judge Weinstein and others have plainly said that we in the US have collectively done a lousy job dealing with tort law issues. "Conservatives" blame the trial lawyers. The trial lawyers blame "greed" and purportedly "heartless" business persons. Academics ponder and write, some are great but too many lack a real understanding of the real world of business, science and the litigation industries that thrive on insurance claims and tort claims. Those industries, however, do not have all the answers, and so there is the quagmire known as chapter 11

Myriad former manufacturers and sellers of risky products (not just asbestos) are now in chapter 11, some due to actual insolvency caused by product liabilities and some because chapter 11 is a great place to use legal and financial engineering to dump problems and move ahead without the burden of the past. To that end, our nation's bankruptcy judges have issued rulings creating $ 30 billion or more of asbestos trusts. In the process, the bankruptcy judges hear evidence (very loosely speaking) and make rulings about future tort "liabilities" even though they have little or no clue about the real rules of each of the 50 state court tort systems and/or the realities of insurance claiming or paying, and also have little or no clue why state court tort claim settlements and trials turn out as they do. Too often, they do not even allow objectors to appear and they just "bless" deals cut by interested people, all making money from the outcome. Meanwhile, state court trial judges continue to march asbestos cases to trial despite having little or no idea of or regard for what may or should happen with the $ 20 billion still left in the trusts, and the billions more that will be added. And, virtually no one does or says much for companies that stay in business and are stuck paying the financial tab for deaths and injuries that in fact were caused by companies now sheltered by purportedly world-wide chapter 11 injunctions.

All these abstract issues really do matter and need better answers than we have today. But, the answers are not arriving. Why ? In part because the issues quickly become moot for a person dying from (avoidable) cancer. All they may want to do is try to live, or to die gracefully, perhaps leaving some money behind to support a dependent spouse or children. So, they victims say very little, and their lawyers include some good people, but they are busy looking for the next case and in any event are not really the spokespersons for the future victims.

Who really speaks for these foreseeable future claimants? No one, because their interests are in fact not well-served by today's "future's representatives." Why is that so (in my opinion), when the ranks of the futures representatives include some genuinely good, smart and compassionate individuals? The realistic answer includes many factors. One is that futures representatives are hopelessly conflicted between really sick people and the not so sick. (On this topic, see the Amchem decision, the many law reviews after it, and this great article by Plevin, Epley (now Davis) and Elgarten on the specifics of futures representative conflicts in asbestos bankruptcies) The futures representatives also hit conflicts due to the desire to reach certainty, today or "soon," despite the changes science will bring tomorrow. They also are outnumbered and out muscled. And, finally, the bankruptcy code gives them far too little power, and pays far too little attention to current or future science.

Global Context for Why the Issues Matter: On the last two Sundays, The Toronto Star has published an extended pair of articles (here and here) that are well worth reading as they cover in some detail the topics of increasing use of asbestos in India as a "developing country," and plans to export more asbestos fiber from Canada's Jeffrey Mine. The first article focuses on the growing use of asbestos cement to provide less expensive and "better" housing for people living in massive slums in India. The author, Jennifer Wells, candidly confronts the disparities between the "talking points" offered by the manufacturers and government as compared to the reality of actual working conditions in factories and the reality that there are no safeguards on use in the slums. She also points out that all of the warnings on the products are in languages other than Hindi. Ms. Wells also identifies the manufacturers and fiber suppliers.

The second article focuses on the issues regarding Canada's continuing export of chrysotile fiber, and plans to expand the exports from the Jeffrey Mine. The mine was formerly owned by Johns-Manville and has been in use for decades. According to the article, the open pit phase of mining is drawing to a close, but an underground mining phase is perhaps approaching fruition. The article includes some of the needed dialogue regarding the distinctions between the different asbestos fibers. Unfortunately, the article does not report on whether the "new" fiber to be mined has or has not been tested for "contamination" with amphibole fibers.

These article are yet another example of the issues that evolve as "developing" countries face opportunities and choices. In part, they face choices between current and future health risks, and the demands/pressures of industry and a vast population. They also face choices between the financial and health costs and risks encountered by people aspiring to "better" living conditions.

For those interested in more on the topic of banning asbestos, consider Laurie Kazan-Allen's website that documents her many years spent campaigning with others to ban asbestos use around the world. Ms. Kazan-Allen works through an organization known as the International Ban Asbestos Secretariat (IBAS). Ms. Kazan-Allen is the sister of an American asbestos plaintiff's lawyer, Steve Kazan. She has accomplished a great deal to limit the harms that can arise from asbestos use. She also has organized many groups of victims seeking medical care. legislation and/or compensation. The website contains a vast amount of information and is well worth the time to browse for anyone interested in the issues. The website also highlights a paper on and an upcoming conference opposed to asbestos use in Asia. In addition, Steve Kazan provides a website known as the World Asbestos Report.

Others, of course, would say IBAS goes too far in seeking to ban all use of all forms of asbestos. That position is well laid out in the Toronto Star's second article.

Unfortunately, there is no website focused on those who will have the future risk or disease, or the interests of the companies that will in the future pay bills for other companies.

• Print
• Comments (1)
• Trackbacks
• Share Link

This article from Business Insurance overviews points from an A.M. Best study to be released on Monday with data and projections on losses from asbestos and pollution claims. Here are some excerpts from the Business Insurance advance article:

"Best estimates the industry's ultimate asbestos and environmental losses will reach $117 billion, down from a previous estimate of $121 billion. Asbestos exposures, however, are projected to reach $75 billion, up $10 billion from a previous estimate; environmental exposures are projected to drop to $42 billion from a previously estimated $55 billion. (emphasis added)

"The increase in asbestos estimates reflects ongoing, elevated levels of annual incurred losses, as well as a subtle shift of losses away from product liability claims to more costly nonproducts claims against more peripheral defendants," according to the report. "Also affecting asbestos losses is a growing proportion of settlements in more serious cases, principally related to mesothelioma, which is increasing the average values of such claims.

• Print
• Comments
• Trackbacks
• Share Link

Here is the Madison County Record's weekly report on new asbestos claims filings. The article lists fourteen new claims. Five of the claims are for lung cancer.

I've not done a meaningful analysis comparing the rate of lung cancer filings, but my gut is telling me that there is a developing uptick in the rate of lung cancer claims in asbestos litigation.

• Print
• Comments (1)
• Trackbacks
• Share Link

One learns many things at asbestos litigation conferences. This year's learning includes being told about a collection on flickr of well over 500 pictures of asbestos-containing products. Here is a picture of a box of asbestos snow. The related collection will appear to the right if you pull up that link. Or go here for an overview of the collection.

• Print
• Comments
• Trackbacks
• Share Link

I'm headed to London this weekend to chair an asbestos litigation conference starting On Tuesday the 29th, so this seems a good time for an update on new speakers added to the conference roster and on some UK developments regarding asbestos litigation.

Conference Update: Two additional conference speakers have been added. One speaker will address new research regarding the impact of the chapter 11 asbestos trusts in the United States. Some of the research data was released in the US earlier this month and quite explicitly proves that indeed the chapter 11 bankruptcies have a significant impact on the litigation fortunes of the defendants that remain in the tort system. The research was undertaken by Bates White and will be presented by Peter Kelso. Additional upcoming research on asbestos bankruptcies also will be discussed.

Another speaker was added to address the evolving topic of litigation as a target of investors. Litigation investment will be addressed in two ways. First, Selvyn Seidel of Burford Advisors will explain the nature of the business and how and why it is expanding. Second, additional speaker Andrew Evans will describe the emerging market in which defendant companies may pay other companies to take over some or all litigation risks in, for example, asbestos litigation. Mr. Evans is part of a business known as Litigation Resources Group that has its roots in Bates White work on the economic realities of asbestos litigation.



Conference registration is still open at the online site here. The conference runs all day on Tuesday the 29th and a half-day on Wednesday the 30th. I'm speaking on the 30th as part of a panel on asbestos trusts.



Pleural Plaques: Trade unions in the UK this week started ratcheting back up their efforts to persuade the UK government to enact legislation that would reinstate damages claims for pleural plaques. This September 24 article from the UK asserts that the unions expect "betrayal":

"Unions will again call on the Government to restore compensation for pleural plaques sufferers at the Labour Party Conference next week.

Gordon Brown was presented with a campaign video produced for the Trade Union and Labour Party Liaison Organisation by Jim Kennedy, political officer of construction union UCATT, this week.

Unions are demanding a new law to overturn the Law Lords' 2007 decision that sufferers of the asbestos-related disease do not need compensation.

Mr Brown promised the TUC Congress that ministers would examine the question when Parliament returns. But UCATT warned earlier this year that they were expecting "betrayal" on the issue"

Asbestos in Schools Hysteria in the UK: Hard to believe the way asbestos-in-schools history is now repeating itself in the UK via essentially hysterical UK news articles that fail to take any lessons from like prior hysteria in the US. Thus, this article from the UK's Mirror newspaper rather hysterically reports that 50,000 law suits are expected against uninsured UK school councils for allegedly causing asbestos-related disease. The article states:


"Test case may lead to 1000s of asbestos compensation claims


By Mark Ellis 23/09/2009
A test case may open the floodgates to thousands of compensation claims for asbestos-related cancers, a court heard yesterday.
And it could create a massive financial burden on education budgets for generations to come.
The warning comes amid fears that many comprehensive schools built in the 60s are riddled with the potentially lethal material.
It also adds weight to the Mirror's Asbestos Timebomb campaign. Lord Justice Moses at London's civil appeal court heard that 50,000 cases against largely uninsured councils are expected over the next 40 years.

And he set the stage for a landmark ruling by allowing council chiefs at Knowsley, Merseyside, to appeal a £240,000 award.
The case involves Dianne Willmore, 49, who blames her time as a pupil for her incurable lung cancer.
Asbestos timebomb: For more information on the Daily Mirror's campaign visit our blog."


UK reporters actually interested in facts and reality would do well to take lessons from the US experience. Asbestos-in-buildings hysteria swept the United States in the 1980s as EPA and plaintiff's lawyers predicted waves of deaths of janitors and school teachers, and thousands of lawsuits arising from injuries to be attributed to the presence of asbestos in school buildings. Ultimately, the hysteria ended because defendants W. R. Grace, U.S. Gypsum and National Gypsum gathered and analyzed literally tens of thousands of air samples in school buildings. The samples were analyzed and evaluated by world-class experts, including Rich Lee and Morton Corn (Dr. Corn earlier was a highly senior OSHA official and oversaw a dramatic but thoughtful reduction in the PELs for asbestos) . Their peer reviewed articles and testimony ultimately stemmed the tide of hysteria because they proved that in most but not all instances, the indoor air in schools contained no more asbestos fibers than did outdoor air. They also proved that even if fibers are being released in a certain spot in the building, the fiber levels a few feet away are still normal. Morton Corn proved this by, among other things, using air sampling to monitor fiber levels at various points in a room in which he was using a baseball bat to strike an asbestos-containing ceiling material.

Meanwhile, asbestos-in-buildings lawsuits at first flourished in the mid to late 1980s and early 1990s but then faded away hen the plaintiff's bar realized that the cases were very hard to win and expensive to litigate. Indeed, my then-partner Pat Lamb and I went to trial for W.R. Grace back in 1995 on asbestos-in-buildings claims brought by the Chicago Board of Education and numerous suburban school districts. After several days of trial, the claims settled for a very modest fraction of the demand.



Today, asbestos-in-buildings claims do not exist in the US except in the non real world of chapter 11 cases where science and state law are routinely ignored. Why? Because Congress' section 524(g) gives economic power to claims that lack merit by giving claimants votes the debtors need to exit chapter 11, thus leading debtors to pay money to settle claims that plaintiff's do not in fact bring or win in state courts. This pattern once again highlights that chapter 11 decision-making for tort claims is seldom grounded in reality.

• Print
• Comments
• Trackbacks
• Share Link

Now online here at no expense is a new paper by the economists at Bates White. The paper is titled "The Naming Game" and is well-worth reading because it uses data from Alameda County to prove the reality that when defendants have exited the tort system to chapter 11, plaintiffs lawyers have in fact sought out and sued new defendants with increasing frequency. The paper also raises other interesting questions for discussion another day regarding the practices of plaintiff's lawyers in collecting money from asbestos trusts AFTER they have finished collecting money in the tort system.


The online article is a reprint from the September 2 issue of the Mealey's report for Asbestos Litigation.

• Print
• Comments
• Trackbacks
• Share Link

Just in time for upcoming asbestos litigation seminars. the economists at Bates White have issued a new report on asbestos litigation, asbestos trusts and the practices of plaintiff's lawyers in choosing and naming defendants to target in lawsuits. The article is well-worth reading as it uses data from Alameda County to prove the reality that as defendants have exited the tort system, plaintiffs lawyers seek out new defendants, among other things.

The article is in the new September 2 issue of the Mealey's report for Asbestos Litigation, or presumably is available through Lexis/Nexis in general.

• Print
• Comments
• Trackbacks
• Share Link

Many words have been written and said about asbestos litigation and class action litigation in Madison County. Disturbingly, academics and many others lack meaningful access to many concrete facts regarding the day in, day out events in Madison County and other courts that are very active in tort litigation. Instead, war stories and antecdotes - often but not always extreme - tend to dominate the media and academic exchanges, and produce many disputes about what really is and is not happening. In that light, the points of this post are 1) to provide an example of one week of asbestos claims filed in Madison County and 2) also to point out that the litigation industry now includes free news sources focused on providing a continuing flow of information regarding some of the active forums for tort litigation.

One group of sources for data consist of "the Record" publications that focus on Illinois' Madison and St. Clair counties, Southeast Texas and West Virginia. Specific to Illinois are the Madison and St. Clair County Records. All are free online publications, with paid print versions. The publications are run by private ownership, with an investment from the U.S. Chamber of Commerce. The Chamber of course has a view but that does not change the facts nor the reality that these publications provide by far the best real time, free and easy windows in to the goings on in these active venues that are so much a part of the litigation industry.

Free email subscriptions bring readers the news each week as defined by the Record; subscription sign up is available at the Ma,dison Record's home page (here). More or less each week the Record publishes a summary of the new asbstos case filings ( I keep bugging them to also put the complaints online, but so far that has not happened.) Set out below is the weekly summary for the week July 27-31.

As you read the case summaries, note how few of the cases appear to have a meaningful connection to Illinois. And, beyond considering the litigation industry view, consider also the widespread impact of cancer. Imagine what these families have been through or are going through as they try to cope with the devastion caused by these 18 of the 1.4 million cancers that will be diagnosed this year in the United Sates according to this detailed Powerpoint presentation for 2009 from from the American Cancer Society.

_________________________________________________________________


18 new asbestos cases filed July 27-31


8/20/2009 8:39 AM
By Kelly Holleran

A total of 18 new asbestos lawsuits were filed in Madison County during the week of July 27 through July 31.

The following claims were filed:

--Norbert and Marjorie Bossen of Iowa allege Norbert Bossen developed mesothelioma after his work in the United States Navy from 1944 until 1946; as a boilermaker in the late 1940s and early 1950s; with Gilbert and Bossen Farm Implements from the early 1950s until 1967; as a pipe fitter from 1967 until 1982; and performing home remodeling work to his homes in the mid 1970s. The Bossens are represented by Robert Rowland and Elizabeth V. Heller of Goldenberg, Heller, Antognoli and Rowland in Edwardsville. Sean P. Worsey of Levin, Simes, Kaiser and Gornick in San Francisco will serve of counsel. Madison County Circuit Court case number: 09-L-795.

--Walter Derby of Colorado, an aviation mechanic, consulting engineer, police officer, security guard, laborer, tree trimmer and contractor/construction worker at various locations throughout Illinois, California, Colorado and Oklahoma from 1967 until 2007 claims mesothelioma. Derby is represented by Timothy F. Thompson Jr. and Ryan J. Kiwala of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-789.

--Catherine Fridmanski claims her recently deceased cousin, Andrew Mulato, developed mesothelioma after his work as a bricklayer and steelworker at various locations from 1940 until 1980. Fridmanski is represented by Andrew O'Brien, Christopher Thoron, Christina J. Nielson, Bartholomew J. Baumstark and Gerald J. FitzGerald of the O'Brien Law Firm in St. Louis. Madison County Circuit Court case number: 09-L-792.

--Josie Gonzales of Texas claims her recently deceased husband, Eulalio Gonzales, developed mesothelioma after his work as a laborer and foreman at various locations throughout Illinois, Missouri, Colorado, Kansas, New Mexico and Texas from 1958 until 1985. Josie Gonzales is represented by Amy E. Garrett and W. Brent Copple of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-798.

--Joseph and Sandra Goudreau of Michigan claim Joseph Goudreau developed mesothelioma after his work as a laborer, painter, operator and engineer at various locations in Illinois, Michigan, Alabama and Wisconsin from 1950 until 2000. The Goudreaus are represented by Timothy F. Thompson Jr. and Ryan J. Kiwala of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-801.

--Julie Hied of Montana claims her recently deceased husband, Lyle Woolston,developed mesothelioma after his work as a rancher and mechanic at various locations from 1968 until 1978. Hied is represented by Robert Phillips, Perry J. Browder and Rosalind M. Robertson of Simmons, Browder, Gianaris, Angelides and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-775.

--Betty Hughes of Virginia claims her recently deceased husband, Cecil Hughes, developed mesothelioma after his work as a laborer and carpenter from 1970 until 1979. Hughes is represented by Robert Phillips, Perry J. Browder and Rosalind M. Robertson of Simmons, Browder, Gianaris, Angelisdes and Barnerd in East Alton. Madison County Circuit Court case number: 09-L-776.

--Robert and Barbara Krupp of Illinois allege Robert Krupp developed lung cancer after his work in the U.S. Coast Guard from 1952 until 1955; as a laborer at Mallinckrodt Chemical Company from 1955 until 1957; as a laborer at The New York, New Haven and Hartford Railroad Company from 1957 until 1961; as a laborer at Stickland Trucklines from 1962 until 1965; and as a laborer at Manufacturers Railway Company from 1965 until 1991. The Krupps are represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. Madison County Circuit Court case number: 09-L-777.

--John Lappin of Missouri, a machinist and steelworker from 1947 until 1992, claims mesothelioma. Lappin is represented by Andrew O'Brien, Christopher Thoron, Christina J. Nielson, Bartholomew J. Baumstark and Gerald J. FitzGerald of O'Brien Law Firm in St. Louis. Madison County Circuit Court case number: 09-L-772.

--Ronald H. and Karen L. Larson claim Ronald H. Larson developed mesothelioma after his work as a field lineman with the United States Army from 1960 until 1963 and as a steel plate inspector at Bethlehem Steel from 1963 until 1987. The Larsons are represented by Randy L. Gori of Gori, Julian and Associates in Edwardsville. W. Mark Lanier, Patrick N. Haines, C. Taylor Campbell, J.D. McMullen and William H. Barfield of The Lanier Law Firm in Houston will serve of counsel. Madison County Circuit Court case number: 09-L-781.

--Christopher Morelli of New Jersey claims his recently deceased wife, Michelle Morelli, developed mesothelioma after her work as a laborer at Lockheed Martin in 1982. She was also exposed to asbestos fibers while doing abatement work during the late 1990s and was secondarily exposed through her husband, who owned a painting, drywall and texture company from 1982 until now, according to the complaint. Christopher Morelli is represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. Madison County Circuit Court case number: 09-L-782.

--Jimmy E. and Rosalee Murphy of Arkansas claim Jimmy Murphy developed mesothelioma after his work as a manufacturer from 1967 until 1971 at Tucker Duck and Rubber Company, Fort Smith Table and Chairs and Bowmen and Company; as a laborer for Capco from 1971 until 1976; as a welder for Structural Steel in 1976; as a forklift operator for Farmland Feed Mill from 1976 until 1980; as a welder for Branham Industries from 1980 until 1981; as a welder for Interstate Electric from 1983 until 1986; and as an assembly line worker for Trane from 1986 until 2000. The Murphys are represented by Elizabeth V. Heller and Robert Rowland of Goldenberg, Heller, Antognoli and Rowland in Edwardsville. Madison County Circuit Court case number: 09-L-793.

--Shirley Jo Peeler of Ohio, a cashier for Liberal Markets from 1953 until 1956 and an employee at Revco and a press operator at Stanhope Products from 1956 until 1958, claims mesothelioma. Peeler is represented by Elizabeth V. Heller and Robert Rowland of Goldenberg, Heller, Antognoli and Rowland in Edwardsville. Madison County Circuit Court case number: 09-L-794.

--Larry C. and Bettye M. Sims claim Larry C. Sims developed mesothelioma after his work as an engineer and machinist mate while in the U.S. Navy from 1962 until 1987; as a maintenance man at Dorchester School District in South Carolina from 1987 until 1998; as a home remodeler at his house from 1960 until 1970; and as a shadetree mechanic from 1959 until 1979. The Sims are represented by Randy L. Gori of Gori, Julian and Associates in Alton. W. Mark Lanier, Patrick N. Haines, Angela B. Greenberg, Sam T. Richard, Bridget B. Truxillo and Lauren H. Ware of The Lanier Law Firm in Houston will serve of counsel. Madison County Circuit Court case number: 09-L-779.

--Toni Solano of Texas claims her recently deceased husband, John M. Solano, developed mesothelioma after his work as a laborer and division engineer for Burlington Northern Santa Fe Rail Road from 1975 until 2005. Toni Solano is represented by Elizabeth V. Heller and Robert Rowland of Goldenberg, Heller, Antognoli and Rowland in Edwardsville. Madison County Circuit Court case number: 09-L-796.

--Robert A. and Darlene M. Switzer claim Robert A. Switzer developed mesothelioma after his work as a service representative, products liability specialist, maintenance, expert claims witness for Caterpillar Tractor Company from 1953 until 1988; while being enrolled in officer's candidate school where he learned and performed duties on Navy ship from 1944 until 1946; while working for a road equipment contractor and on welded metal tracks from 1949 until 1953; as a farmer at Norvel Switzer Farm from 1926 until 1944; as a shadetree mechanic from the 1950s until 1980; and in residential construction from the 1950s until 1980. The Switzers are represented by Randy L. Gori of Gori, Julian and Associates in Edwardsville. W. Mark Lanier, Patrick N. Haines, R. Craig Bullock and J. Kyle Beane of Houston will serve of counsel. Madison County Circuit Court case number: 09-L-780.

--Leo J. and Ruth A. Vietmeier claim Leo J. Vietmeier developed mesothelioma after his work as a laborer, assembly line worker and maintenance man at American Vitrified in the 1950s; as a laborer while in the AFL-CIO Union in the 1960s; as a mine worker at Pegg's Run Coal Mill in Pennsylvania in the 1970s; as a meat cutter at Giant Eagle from 1980 until 1996; as a home remodeler at his home from 1967 until 1990; and as a shadetree mechanic on his automobiles from 1950 until 1980. The Vietmeiers are represented by Randy L. Gori of Gori, Julian and Associates in Alton. W. Mark Lanier, Patrick N. Haines, Angela B. Greenburg, Sam T. Richard, Bridget Baragona and Lauren H. Ware of The Lanier Law Firm in Houston will serve of counsel. Madison County Circuit Court case number: 09-L-778.

--Mary Ellen White of New Hampshire claims her recently deceased husband, John Grohosky, developed mesothelioma after his work in the U.S. Navy from 1944 until 1964 and as a forklift driver from the early 1970s until 1988. White is represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. Madison County Circuit Court case number: 09-L-784.

--Fred Young of Wisconsin, who served in the British Navy from August 1940 until August 1954 and who worked as a mechanical researcher from 1954 until 1956; as a mechanical researcher at AV Roc from 1956 until 1958; as a design engineer for Pratt and Whitney from 1958 until 1960; as a design engineer at the GE Nuclear Power Demonstration Plant from 1960 until 1963; as a senior reactor operator at Ontario Hydro from 1963 until 1965; as a maintenance supervisor at Thunder Bay Generating Plant from 1965 until 1967; as a maintenance supervisor at Wisconsin Electric Point Beach Plant from 1968 until 1972; as a laborer at Bechtel from 1972 until 1984; and as a consultant at Wisconsin Electric Point Beach Plant from 1984 until 1989, claims mesothelioma. Young is represented by Randy L. Gori and Barry Julian of Gori, Julian and Associates in Edwardsville. Madison County Circuit Court case number: 09-L-797.

• Print
• Comments
• Trackbacks
• Share Link

This article from the Madison County Record reports that Judge Daniel Stack has decided to retire as of 2010. Judge Stack is well known as the Madison County judge who took over the asbestos docket from Judge Byron. Judge Stack is generally credited with having made Madison County a less extreme place to litigate for asbestos defendants, although that's relative praise. That said, Madison County continues to grind out trial dates and settlements for asbestos cases, and so claims for 2009 are up from recent years.

• Print
• Comments
• Trackbacks
• Share Link

As posts on this blog reflect, there are in my view enormous issues out there regarding the interplay between asbestos trusts (mainly chapter 11 trusts) and the state court tort system. Happily, asbestos litigation seminars are paying an increasing amount of attention to the issues arising from the two parallel compensation systems. Two upcoming seminars offer great opportunities to learn more about the asbestos bankruptcy issues and much more.

Here are some specifics for the first of the two seminars:

1) HB Asbestos Litigation Conference Sept. 23-25 in San Francisco

The HB group took over from Mealey's and is running an upcoming 3 day asbestos litigation seminar. The program in general is excellent and is of special interest to me because of its focus on asbestos bankruptcy issues and because one of the chairs is fomer Chicagoan, Joe O'Hara, a lawyer who has tried asbestos cases for years for Owens-Illinois. Joe is now the Asssociate General Counsel for Owens-Illinois and a great lawyer I've known for more years than I want to admit. Joe and OI are very tuned in to the asbestos bankruptcy issues, and so the seminar program includes two Sept. 23 sessions focused on asbestos trusts and asbestos bankruptcy issues. In addition, numerous state court judges will be there and will end up hearing and/or saying a lot about these issues. Despite lots of other competing life events at that time, the sessions look so good to me that I'm flying out for just that day.

The specifics for the two asbestos trust and bankruptcy sessions are as follows; the speakers are quite knowledgeable:


2:30 Asbestos Claims Processing

•What bankruptcy trusts are operating and what are they paying?
• Timing of claims filing
• Best Practices - efficient methods for claim submissions
• Avoiding mistakes - areas of concern for claimant processing & payment
• W-9 forms, tax issues, 1099's to clients
• TDP's and processes within that may benefi t defendants
• Accounting for the money still in trust, the value of average mesothelioma claims & future projections on claims vs. assets and funds availability in trust

Francis McGovern, Esq., Professor of Law, Duke University School of Law
Larry Haden, President, Claims Resolution
Nicholas Vari, Esq., K&L Gates


3:45 The Surge in Bankruptcy Trust Payouts: Can You Make Everyone Happy? Maximizing Recoveries and Creating Fair Credit Allocation

• What adjustments should be made in the tort system to account for the bankruptcy payouts?
• What disclosure obligation should exist regarding pending trust claims, actual payouts, and expected future trust fi lings?
• Should the tort system encourage or leverage plaintiffs to file claims with the Trusts before the claims leave the system?
• Third party practice and the Defendants' interaction with the Trusts

Moderator: Joseph O'Hara, Jr., Esq., V.P. & Associate G.C., Owens-Illinois
Hon. Richard Aulisi, Supreme Court Justice, 4th Judicial District of New York
Hon. Ken Kawaichi, (Ret.), JAMS
Hon. James McBride, Superior Court of California
Joseph Belluck, Esq., Belluck & Fox LLP


To register, the HB home page is here. The entire asbestos agenda is here. In this tough yuear for budgets, note that inside counsel from corporations and insurers are invited to attend free of charge.

• Print
• Comments
• Trackbacks
• Share Link

For years, many have posed the question: what is the next "asbestos" ?

The answer usually has been: more asbestos.

Here is one recent example of why the answer remains largely true. The example is a plaintiff's firm press release urging the need to treat taconite as if it is asbestos even though its never before been classified as asbestos. There are some real health issues as to taconite, which you can see from this University of Minnesota web page addressing an ongoing study. The point here though is that the next asbestos is more asbestos. The second point is that the underlying JOEH article it cites purports to find a medical link between the presence of pleural plaques and pain in this particular person. The plaintiff's bar no doubt will continue to use this article as part of the always ongoing campaign to find reasons why money should be paid to persons without actual impairment of their day to day activities.

• Print
• Comments
• Trackbacks
• Share Link

James Hardie's asbestos trust continues to create issues. Here is an article regarding the Australian tax regulator seeking and gaining access to asbestos-related papers, apparently including papers exchanged with its accountants. Trusts are plainly an excellent concept for resolving asbestos and other toxic tort claims without massive litigation waste, but they are indeed complex undertakings.

• Print
• Comments
• Trackbacks
• Share Link

Update of July 14 to May 7 post reposted below: The National Law Journal includes a July 13 article updating on the case below. The update is that some defendants sought interlocutor appellate review of the trial judge's order in which he "reluctantly" declined to bar a deposition transcript created under the circumstances described below. Thus far, review has been declined by California's intermediate appellate court and by the California Supreme Court. The defendants, however, will continue to press the issue through other appeals and when it arises in other cases.


_______________________________________________________________
May 7 post

More and more legal news outlets have picked up on some parts of the asbestos litigation gamesmanship. Walter Olson's Pointoflaw uses the humorous (for lawyers) title "Asbestos: The Texas- California Two-Step" to link back to a California blog article (from Cal Biz Lit) that links to and quotes from a California trial judge's opinion (available here in full text) sharply criticizing the Waters & Kraus plaintiff's firm for its litigation tactics. Specifically, Judge Munoz criticized the firm for at least 10 times filing cases in Texas and then refiling in California after the plaintiff has been deposed in Texas. The same opinion was picked up in Legal News Line and today by law.com via the National Law Journal, and the ABA Journal online.



Why do plaintiff's play that game? Because it helps the plaintiff avoid meaningful scrutiny in depositions. How/why is that true? Because some states, including Texas and Illinois, have rules that limit depositions to six hours. Specifically, as Judge Munoz explained in his opinion:



"Plaintiff's law firm, which is a multi-state firm, has, in at least nine other cases, filed cases in Texas which were then dismissed after the plaintiffs' deposition had been take."



The reason for this procedure is apparently because under Texas law the deposition is severely limited to six hours per side. Additionally, under Texas law the failure to mention the defendant's product is a basis for summary judgment. The law in this state is to the contrary."



"It is the court's opinion that the filing of the Texas action was deliberately done to prevent the defendants from having adequate discovery and to prevent the filing of motions for summary judgment because of the California rule requiring specific questions about product identification."

Judge Munoz is correct that the tactic can and often does prevent a meaningful defense. Why is that - shouldn't six hours be enough? No, not even close in many cases. Why? Because in many cases, the plaintiff sues dozens of defendants and makes claims involving alleged "exposure" at dozens or hundreds of job sites. For example, the plaintiffs often are tradesmen (say an electrician or a pipefitter) who worked for a business that serviced dozens of businesses large and small (for example, stand alone power plants and power generating facilities at factories or refineries). That person may well have worked at dozen or more facilities a year, and may well claim that he was "exposed" to asbestos at each such site. In that situation, the defense lawyers need to carefully depose the witness to prove that in fact there was no actual inhalation of fibers from a specific job site. That proof is gathered by asking about the specifics of the work at the job site.

For example, in a typical deposition, the defense lawyer may be given a job site list from the plaintiff. The lead lawyer taking the deposition will then say: "I see you have listed the Acme Manufacturing Plant as a job site at which you claim you were exposed to asbestos. Please tell me about why you think you were exposed there?

The plaintiff may well respond: "I think I was exposed at the XYZ company because I brought in electric lines to a circuit breaker, and there were big pumps about 30 feet away from me. I assume the pumps contained gaskets that contained asbestos, and I assume the pipes leading in and out of the pumps were insulated with asbestos."

Once that testimony is on the record, then the defense lawyer for the gasket company needs to question witness in detail to find out the specifics of the pumps (who made them, what he knows about them) and then needs to take testimony to prove that in fact there was no actual "exposure" because, for example, 1) the plaintiff never touched the pump, and 2) the gaskets, if any are inside the pump, and the pumps were operating at the time of the plaintiff's work, so that fluid was flowing through the pumps and therefore any gaskets were wet and incapable of releasing a respirable asbestos fiber. Doing that takes time, but it has to be done if the company wants to obtain summary judgment when that "exposure" (or a few like that) are the only basis for potential liability. So, for a plaintiff with a long job site history, the deposition process may take literally several days if the testimony is to be taken well so that defense lawyers can make a record that proves up a solid defense for trial for each defendant in the position of the gaskety company. The plaintiff's lawyers, however, seek to limit the depositions to six hours to avoid the strong defenses, and of course will say it's their job to zealously represent their clients.

Isn't this all silly - shouldn't the plaintiff refrain from putting at issue job sites and alleged "exposures" where realistic lawyers who know their science also know that there was no actual inhalation at all of asbestos fibers or no meaningful inhalation? Yes, but that's not what happening in the tort system. Instead, the problem is that some but not all plaintiff's lawyers are pursing the "any fiber fiber counts" theory, supported by a small cadre of experts who will testify to their opinion that "any and all fibers add to the risk. "' Some courts have rejected that theory, but others let it go to the jury and others do not yet have concrete appellate case law. For much more detail on the "any fiber" or "every fiber" theory, the experts, and the case law, look to Mark Behren's very recent article "What's New in Asbestos Litigation" at pages 528-531.

The deposition time problem is made worse by the plaintiff's who claims that the pump maker should be held liable for failing to warn the plaintiff about the insulation that someone else installed over the pipes that connect to the pump . That legal theory also is popular in asbestos litigation today - for more specifics on the theory and the rulings to date, once again see Mark's article, but this time at pages 542-545. Here, though, the point is not to debate the merit of the legal theory. The point instead is to explain that because of that theory, the pump maker's lawyer needs to spend time questioning the witness about the insulation in some detail. E.g. does he know the age of the insulation (in the US, it won't have asbestos if it ws installed after about 1973, absent unusual facts), does he "know" if it contained asbestos (the answer should be no), was the insulation ripped or torn (properly jacketed insulation does not release fibers) , was anyone working on the insulation (could release fibers), did he touch the insulation (he probably did not but that's needed for the summary judgment motion). The result is that a six hour time limit often times denies a defendant its due process right to a meaningful opportunity to gather evidence and have a meaningful trial.

Some but not all plaintiff's lawyers typically will respond in at least two ways. First, they will say that some defendants send to depositions some ill-prepared defense lawyers who ask stupid questions because some insurers and some clients are too short-sighted to pay for well-trained lawyers who know their facts and science. That complaint is sometimes valid. Indeed, I've seen it happen. But that's NOT the fault of the well-prepared gasket company lawyer who must be accorded the due process chance to gather meaningful evidence to protect her client. The remedy instead is for the plaintiff's lawyer to bring a motion for protective order specific to that lawyer or defendant.

Second, plaintiff's lawyers will complain that some defendants play their own asbestos litigation games, such as removing cases to federal court just before trial of a dying mesothelioma victim, with the result being the loss of the trial date and the plaintiff's death before the trial is rescheduled. I'm told that has in fact occurred. But, once again, that's not the fault of all defendants and it's not relevant to the question of deposition time limits.

Finally, some will say that the problem is that the plaintiff came in and hired counsel just before death and there is not enough time. That can happen, but it's getting harder and harder to justify or believe that excuse in this age of non-stop mesothelioma ads online and on tv. And, in any event, when counsel was hired does not control the number of hours needed for deposition.

What steps would help to end this game. There is no one answer. One step would be an asbestos case-management order that automatically grants an extension of the deposition time in any case involving more than 5 defendants and 10 job sites. Another good step would be to have an activist trial judge who understands the science and the law, and who will take calls from depositions to block time-wasting by anyone, and who will ensure that each defendant receives a meaningful opportunity to prepare its defense.

• Print
• Comments (1)
• Trackbacks
• Share Link

Ironic the difference a continent can make. In the US, companies usually do not promote their involvement in current or past production of asbestos-containing products. Not so in India, where an online stock analyst item regarding Eternit Eeverst Ltd. lauds the profit in the company's production of asbestos-cement products. It states:



"The Tatas and the Eternit Group of Belgium set up the pioneer of asbestos fibre products in India, Eternit Everest Ltd . The company is a pioneer in the manufacture of fibre cement roofing products and flat sheets. Eternit enjoys a market share of over 20%. Everest Industries Limited provides you with the world-class building solutions to meet your construction requirements, in the Industrial, Commercial and Residential sectors. Historically, Everest has provided rural shelters by making corrugated roofing sheets available to farmers at a competitive price. The company is poised to capitalize on the opportunities in rural India where various housing and infrastructure initiatives are envisaged by the Government.
Products & Services

Everest offers a complete range of building solutions which includes Ceilings, Walls, Flooring, Cladding, Doors, Roofing and Pre-Engineered Steel Buildings. These are produced at Everest's state-of-the-art ISO: 14000 certified manufacturing facilities at Kymore, Nashik, Coimbatore, Kolkata and Roorkee. With over 4000 retail points spread across the nation together with the strength of over 1285 highly qualified and experienced engineers, designers and technicians, Everest provides you building solutions that successfully meet the highest standards of quality and durability.

Everest, the second largest player in the roofing industry, manufactures various asbestos and non-asbestos based products like roofing sheets, flats and boards that find application in housing, false ceiling, partitioning, interior etc. The company has embarked on a project to add capacities of non-asbestos products that also demand higher margins. It expects to capture square meter corrugated sheet market in the country. Following the break through in exporting this product in the Sri Lankan market, the company plans to tap the export market as well.
However the company is increasingly looking at international markets to widen its revenue base; it expects exports to increase in the coming years. Everest is actively looking at opportunities in African and European markets (where asbestos is banned) to widen its geographical reach. With the increasing share of exports in its total sales, the operating profit margin of the company will improve, as exports fetch better margins than domestic sales.

Valuations

At current market price, stock is trading at 7.82 P/E multiple of its FY2010 estimated earnings. We recommend investors to buy "Everest industries Limited" with medium to long term investment horizon."

• Print
• Comments
• Trackbacks
• Share Link

On this our nation's anniversary of its independence, you may find interesting/amazing a Pravda article on 1940s era use of cement bombs made from asbestos cement. And, by the way, this post was written long ago but set to post today. http://english.pravda.ru/main/18/87/344/10033_concrete.html

Soviet Invention of the 1940s: Concrete Bombs

20.05.2003 Source: URL: http://english.pravda.ru/russia/2851-concrete-0

Although the USA says concrete bombs used in raids on Iraq are the latest innovation, the USSR used them already in WWII.

The wonderful weapons that Americans used in raids on Iraq, the concrete bombs, were produced by Soviet plants already in the beginning of WWII. However, it seems that the USA hasn't hit upon another know-how of the Soviet Union. These are slate mines that were produced by the Soviet enterprise Kommunar in the 1940s.

Samples of this "weapon" can be seen in the city preserve museum in the Russian city of Novorossiisk. Deputy Director of the museum Lev Stepko describes the exhibits and speaks about their negative and positive aspects. The waterproof body of the weapon increases its reliability. Only the fuse is made of metal, which makes the slate mine immune to mine-detectors.

However, series production of concrete bombs and slate mines was started because of the availability and low price of the stuff they were made of. Weapons of this kind had several disadvantages as compared with the conventional arms: they were very fragile and could be damaged in long transportation. Concrete bombs and slate mines were used by the Soviet army in the Caucasus battle.

However, there are just few documents in the Novorossiisk city museum saying how civil enterprises producing construction materials were turned into defense enterprises. For example, documents in the archives of the concrete department of the People's Commissariat for Construction Materials say, a production line for making concrete bodies for bombs was opened at the enterprise Proletariy. About 20,000 concrete bodies for bombs were produced at the enterprise.

Historian Sergey Novikov searched the archives of the concrete industry museum and found documents proving that all concrete-making enterprises started this kind of production from November 1941 and finished it in August 1942, when German troops neared the city of Novorossiisk. Equipment of the concrete enterprises was evacuated to Georgia and Central Asia then. As Sergey Novikov says, the concrete enterprises mastered a unique technology. Concrete bombs were mostly used for training purposes, but those produced in the cities of Nevyansk, Volsk and Novorossiisk were used at war. Workers in Novorossiisk made concrete bodies even for unique 5-ton bombs.

The usage of those cases depended upon the stuffing. Explosives or chemical agents could be placed inside the concrete bodies; chemical agents were also used in target indicators. Those indicators were dropped on targets, but they didn't detonate and indicated the area for bombing which was clearly seen by pilots in the sky. It is highly likely that concrete bodies were sent to the arsenals where the military filled them with tolite and trotyl. There is also a version saying that concrete producers even had to stuff the bomb bodies themselves.

Documents in the archives reveal anxiety of top managers at the Novorossiisk concrete enterprises: they realized that strict discipline measures must be taken at the enterprises because they were given an unusual task of filling concrete bodies with explosives. As for production of slate mines at the enterprise Kommunar, historian Sergey Novikov even managed to find a woman participating in the production in the 1940s. Maria Leonova didn't assemble slate mines herself; she worked as an electrician in the production workshops of the enterprise.

She says that production of the weapon was started in the autumn of 1941. The production cycle wasn't difficult. Fresh asbestos-concrete mass (so-called eternit) was placed into moulds made of wood. The newly-made slates were used for making boxes of different sizes. Prominent edges of the newly-made boxes were moistened and trimmed. Bodies of mines were placed into special chambers for drying. Those mines were used against tanks. As it becomes clear from the story told by Maria Leonova, the slate boxes were stuffed with explosives somewhere outside the enterprise. Although, the workers of the enterprise didn't have to deal with explosives, they all the same had to keep the details of the work secret.

The war in Iraq has demonstrated that all modern innovations were developed long ago and were recently just furnished with modern details, such as high-precision laser pointing systems. As representatives of the US and UK Air Force say, the latest concrete bombs are meant for hitting particular targets. There is no explosive inside these bombs; the effect of these bombs is based upon kinetic energy and high percussive power. As the coalition forces say, concrete bombs don't split into pieces and consequently cannot injure accidental victims. They may say whatever they wish, but the present-day hostilities have already demonstrated that there cannot be absolutely humane weapon at all. Svetlana DobritskayaNovorossiisk Rabochy


© 1999-2006. «PRAVDA.Ru». When reproducing our materials in whole or in part, hyperlink to PRAVDA.Ru should be made. The opinions and views of the authors do not always coincide with the point of view of PRAVDA.Ru's editors.

• Print
• Comments
• Trackbacks
• Share Link

In light of this morning's news from the General Motors chapter 11 case, and emails landing in my inbox of late, this seems an apt time to mention that the recession, chapter 11 cases and asbestos litigation are all intersecting at upcoming asbestos litigation conferences.

For one, Perrin Conferences is hosting a September 14-16 asbestos litigation conference in San Francisco. In a nod to the recession and slashed corporate budgets, Perrin Conferences is offering free registration to inside corporate lawyers. Go here for the agenda.

The entire conference looks excellent for both substance and speakers. My eye was particularly caught by the seminar's day three panel on chapter 11 cases related to asbestos claims. Who knows what the world will look like by then, but for now, the panel is top notch:


9:00 AM - Asbestos Bankruptcy: New Filings, Confirmations & Dismissals

Overview of the current Chapter 11 asbestos bankruptcy landscape, Part I: Why are these companies still in bankruptcy?

Overview of the current Chapter 11 asbestos bankruptcy landscape, Part II: Who are these new filers and how are they doing?

Overview of the asbestos trust process, the Three "C's": Claims, Contribution and Cooperation
Will there be any defendants left? The automotive industry and bankruptcy

Joseph F. Rice, Esq., Motley Rice LLC, Mount Pleasant, SC
Charles Mullin, Litigation Resolution Group LLC, Washington, DC
Robert Phillips, Esq., SimonsCooper, LLC, East Alton, IL
Lucy P. Allen, SVP, Mass Torts and Product Liability Chair, NERA Economic Consulting, New York, NY

• Print
• Comments
• Trackbacks
• Share Link

Per this article from Delaware Online:

June 25, 2009
DuPont sued over asbestos in ArgentinaEx-Lycra plant workers say they were exposed
By ANDREW EDER and AARON NATHANS
The News Journal

DuPont Co. exposed workers in Argentina to asbestos until the late 1990s despite knowing the risks of the material, according to three lawsuits filed Wednesday in Delaware.
The lawsuits came from former workers at a Lycra spandex plant in Mercedes, Argentina, that was part of DuPont until the sale of its textile unit in 2004.
DuPont knew that exposure to asbestos could harm workers as early as 1964, the complaints said, but the company continued to use asbestos in the heat pipes and machinery of its Argentina facilities until the late 1990s.
The workers, Cristian Dematei, Juan Carlos Laborda and Ceferino Ramirez, are represented by the Wilmington law firm Jacobs & Crumplar. The law firm said more lawsuits would follow.
Dematei, who worked at the facility for 11 years, suffers from asbestosis, a chronic condition that causes shortness of breath and an increased risk of lung cancer, the complaint said.
Laborda worked at the plant from 1968 to 1980, according to his complaint, and suffers from asbestosis and asbestos-related lung cancer.
Ramirez worked at the facility for 32 years before retiring in 1993. He has been diagnosed with asbestos-related laryngeal cancer and asbestosis, his lawsuit said.
The lawsuits allege that workers were never warned of the dangers of asbestos exposure or given respiratory protection.
Amanda Velazquez, asbestos medical paralegal for Jacobs & Crumplar, said: "They need to break the double standard," referring to DuPont stopping using asbestos in U.S. plants earlier.
DuPont spokesman Dan Turner said, "While we have not had the opportunity to review the filing yet, and cannot comment on the specifics, we do find it puzzling that the plaintiff's attorneys have filed the compliant in Delaware rather than the country of origin. The safety and health of our employees, our neighbors and our community has and continues to be DuPont's highest priority."
Velazquez said it makes sense to sue a company in the place where it is based.

• Print
• Comments
• Trackbacks
• Share Link

Current articles here and here follow up on a conference in Israel regarding a town there with high mesothelioma rates. Asbestos campaigners long-ago reported here that the town included an asbestos-cement plant that used the amphibole asbestos fibers known as crocidolite and amosite. A detailed report with pictures is available here at World Asbestos Report. The company operating this plant is said here to have been Eitanit, formerly known as Isabest; wit the town and factory located in Nahariya, in the Western Galilee.

According to one of the articles above:

"The choice of topic by Asbestos Consultant Andy Oberta was particularly relevant to Greece - a country in which asbestos-cement products are still being manufactured. The case study An Asbestos-Cement Plant in Israel: Contamination, Clean-up and Dismantling detailed Mr. Oberta's involvement with a project in the City of Nahariya, Northern Israel. For nearly fifty years, amosite, crocidolite and chrysotile had been used at this site during the manufacture of asbestos-cement pipes and sheet products. The factory owners distributed asbestos waste to local people for use on their driveways, paths and farms throughout western Galilee. Although the plant shut in 1997, friable and non-friable waste material was still lying on the beach and by the roads which bordered the factory site. Town councilors thought a good use for the area would be a children's amusement park and plans were developed to build this tourist attraction. A series of photographs illustrated the hazards of such a plan and Mr. Oberta explained the process by which negotiations with the Israeli Ministry of the Environment and local people resulted in the rejection of this idea."

According to an old article you can find online through various paid sources:

COPYRIGHT 1991 Israel Business TodayEitanit Set to Re-enter U.S. Market The U.S. Federal Court recently canceled the ban on asbestos products initiated by the EPA in 1989. The decision opens the way for Eitanit, formerly called Isasbest, to reenter the U.S. market. The company is the only manufacturer of asbestos products in Israel and anticipates sales of $25 million in 1991. Managing Director Uri Peled says the company has invested significant sums in reducing health hazards to its 200 employees. Eitanit is owned by the Federman family.

Old manufacturing plants also have created issues'>http://www.eia-usa.org/forum/viewtopic.php?id=14">issues in the Chicago area as an old Manville plant that used amphibole fibers was located in Waukegan near an Illinois public beach and state park.

• Print
• Comments
• Trackbacks
• Share Link

Asbestos campaigners in the UK have embarked on a 1,200 mile bicycle trip to publicize the need for more medical research into asbestos-related cancers and to publicize asbestos issues. The trip is the subject of a blog known as "Breath-Taking Journey" and is found here. The ride is to end on July 4.

• Print
• Comments
• Trackbacks
• Share Link

An article here provides a quick comment from Elizabeth Warren and mentions law students who helped Prof. Isacharoff.


A Law360 article here includes the following quotes:

"Gary Svirsky, a partner in O'Melveny & Myers LLP's securities litigation practice who has been observing the case, said in an e-mail that the Supreme Court "opted to rule on the narrowest of grounds." The court may have opted to keep its decision narrow "so as not to unduly limit the court's flexibility in addressing complex problems that might be raised in future bankruptcies," such as the recently filed bankruptcies of U.S. automakers, Svirsky said."While beyond the scope of this report, the issues posed by nonderivative claims remain open and alive after this decision in our opinion," he said.
The court "seems to have gone out of its way to not adjudicate the actual merits of the dispute and just say that it has to progress in an orderly fashion from the bankruptcy court," said Samuel Issacharoff, a New York University law professor who represented asbestos claimants in the case before the Supreme Court.serving the case, said in an e-mail that the Supreme Court "opted to rule on the narrowest of grounds."
An Am Law blog article by Alison Frankel reminds readers of prior exuberant comments by Travelers' counsel, Mr. Ostrager, and quotes him as follows:

Ostrager told the Litigation Daily by e-mail that the Supreme Court ruling is "100 percent in our favor." He added: "Every aspect of the Second Circuit's substantive legal reasoning was rejected (either expressly or by implication). It is, therefore, a complete and total victory."

• Print
• Comments
• Trackbacks
• Share Link

An article by Steve Korris in the Madison County Dail Record provides an update on CSX's lawsuit targeting the Pittsburgh-based Peirce, Raimond plaintiff's law firm and radiologist Ray Harron, one of the doctors identified by many as facilitating bogus claiming. The case is set for trial in August on CSX's claims that in essence accuse the law firm and doctor of manufacturing bogus law suits. Here are some key excerpts from the article:

"Baylor's case was a sham," CSX lawyer Marc Williams of Huntington, W.V. wrote to U.S. District Judge Frederick Stamp on June 16.During his May 11 deposition, Baylor "had virtually no knowledge of the circumstances" around his representation by Peirce, Raimond and Coulter of Pittsburgh, Williams wrote.

He wrote that Peirce firm lawyers "consistently acted without his authorization."He wrote that at his deposition Baylor identified his own signature on a questionnaire but said handwriting on the asbestos exposure section belonged to someone else.

Stamp plans to start trial Aug. 11 on CSX's fraud conspiracy suit against the Peirce firm, owner Robert Peirce, and radiologist Ray Harron of Bridgeport, W.V."

The Record, as its known, is a great source for general information about litigation developments in some well-known venues for tort litigation. The information comes with a definite but disclosed pro-defense view, as explained here. Different iterations of the Record focus on different "plaintiff-friendly" jurisdictions, including West Virginia (go here) and southeast Texas (go here).

• Print
• Comments
• Trackbacks
• Share Link

Walter Olson 's PointofLaw has a June 12 post about Judge Weinstein writing a pessimistic paper about the way courts handle mass tort claims. Judge Weinstein may feel the need to write again after considering the Manville Trust's quarterly report for the 1st quarter of 2009. The report is available here, and is depressing both for what it shows and what it does not show.


The visible and depressing part of the report involves nonmalignant claims - the ones that seemingly have been fading away. But, that's not true for Manville during the first quarter of 2009. Instead, nonmalignant claims went back up - significantly - contrary to prior trends. They are said to be category 2 nonmalignancies, which means "asbestosis/pleural plaques" with a scheduled payment of $12, 000 (subject to prorated payment ) under the terms of the 2002 Manville TDP procedures available here - see page 7.

Specifics? Doing a little math from figures shown in the report's cover letter to Judges Lifland and Weinstein, it looks like there were about 2,900 nonmalignant claims, which is far more claims than ALL the Manville claims filed in 1Q 2008. According to the report's cover letter:

"During the first quarter of 2009, the Trust received 4,853 new claim filings compared to 1,776 for the same period of 2008. The malignant filing population has accounted for approximately 40% of the total for the first quarter of 2009 claim filings compared to 68% for the first quarter of 2008. The percentage decrease in malignancies is attributed to the sharp increase in the filing of unimpaired non-malignant Level 2 claims." (emphasis added)

"The Trust settled 3,749 claims for $30.4 million during the first quarter 2009 compared to 1,582 claim settlements for $14.8 million during the same period of 2008. The average settlement amount for the first quarter of 2009 and 2008 was approximately $8,100 and $9,300, respectively. Once again, the decrease in the average settlement amount is due principally to the higher percentage of non-malignancy claims settled during the first quarter 2009."


Also depressing is the lack of data in the report to tell readers where these nonmalignant claims are coming from and the nature of the supporting proofs. Are these claims from persons resident in the US or persons who live overseas? Are some of these claims from older claimants who perhaps really did inhale large amounts of Manville fibers, or are some these claims from younger claimants with x-rays read by physicians of dubious repute who have not yet been banned from submitting the reports ? Or, are these all valid claims supported by sound medicine and science ? The report does not shed light on the answers to the questions. Once again, bankruptcy- related proceedings prove themselves to be the antithesis of transparency, and the Manville Data apparently remains unavailable, thus making it harder for anyone to figure out the real facts about tens of millions of dollars that perhaps should instead be available to be paid to mesothelioma claimants.

• Print
• Comments
• Trackbacks
• Share Link

An article here describes a construction group in Dubai trying to raise consciousness regarding asbestos in building projects. This type of activity was what the US went through in the mid to late 1980s, and it spawned tort litigation seeking to recover the costs of coping with asbestos regulations. According to the article:

"By volume, there is more asbestos here than in the UK. The asbestos here is different to what you find back in the UK. It is usually asbestos cement and is classified as a lower risk. There is also legislation but it did not come into effect till 2006 and there is low awareness and a possibility that it is present in projects before that period. Besides, the current law only applies to asbestos boards. So it is legal to use water pipes for water supplies and sewage," said Faulkner. "Hence we are working with Build Safe UAE to create greater awareness among the 90 signatories of BSU."

• Print
• Comments
• Trackbacks
• Share Link