GlobalTort : Commentary from lawyers and experts on mass torts, law, insurance and science

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."

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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. 

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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:

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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)

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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.

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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."

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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.

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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.

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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.

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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."

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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.

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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.

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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

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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. 

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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."

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

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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:


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.

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.

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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.

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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.

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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?

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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.

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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.

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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."

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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:

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.

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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."

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A May 5, 2009 Slate article by Shaun Walker is about Russian towns that revolve around one industry. Such towns, he says, are known as monogorods. As it happens, he chose to write about the monogorod town of Asbest.


The article caught my eye for two reasons. One is the scope of the industry - according to Mr. Walker:

"There are 19 different factories and workshops that make up UralAsbest, the company that defines the town, he told me, and more than 70 percent of the families living in the town have at least one member who works there. He handed me an English-language brochure called "Asbestos Saves Lives."

The other noteworthy point is the town/industry's focus on the controversies over the toxicity of various types of asbestos fibers, and short, glib answers to complex questions. Plaintiff's lawyers hate to admit it, but the reality is that amphibole fibers (usually crocidolite or amosite) are by all accounts far more "toxic" than are chrysotile fibers. That said, some chrysotile fibers from some mines are "tainted" by amphibole fibers. The subtlies, however, usally are not discussed, as is the case in ths town of Asbest:

Kholzyakov sat back in his chair and let out a long sigh. "The thing is, amphibole asbestos, which was used in Europe, really was dangerous. But we mine chrysotile asbestos here, which is perfectly safe. It's only because companies in the West have made expensive substitutes that there is a campaign to ban us."

The party line in Asbest jibes well with a Pravda item on asbestos use. The full text of the article is below with the first three items reaaranged to appear at the top of the list. Bear in mind this is from the English version of Pravda.
http://english.pravda.ru/science/19/94/377/16671_world.html


10 myths of the past, which never materialized.

Environmental pollution: some people feared that the civilization would come to end by 2020 due to sky-high levels of industrial and communal pollution which should result in a lack of oxygen and poisonous evaporation.

Asbestos: Micro particles of asbestos cause lung cancer. Asbestos was produced in Canada and the USSR. Canadian asbestos companies went bankrupt following an anti-asbestos propaganda campaign instigated by the competitors. Russia's asbestos makers have survived the bad times. The incidence rate of cancer in the town of Asbest does not exceed an average national incidence rate of cancer.

Global warming: industrial emissions of carbon dioxide cause the greenhouse effect that leads to overheating of the earth's surface. Consequently, polar ice will melt away causing the global ocean level rise by one meter.

Steam-driven locomotive: serious scientists were asserting that cows would stop bearing offspring and produce milk at the sight of a locomotive. They also clamed that air would be squeezed out of train carriages at 20 km per hour and passengers will suffocate as a result.

Robot: intelligent machines will shake off dependence and take command of the world; humans would submit to the power of the machines.

Spacecraft: spacecraft were making holes in the atmosphere during the takeoff; the earth's protective anti-radiation layer of the atmosphere will be eventually destroyed and thus the earth will be exposed to dangerous space particles.

Microwave oven: fried sausages can irradiate in the dark; radiation from food cooked in the oven will pile up in the human body and cause cancer.

Cell phone: radiation emitted by a cell phone receiver can affect the brain by liquefying it. Paradoxically, a cell phone phobia could not stop the massive spread of cellular communications all over the world.

Vaccination: the danger of vaccination is one of the longstanding fears in the world; the first objectors appeared shortly after the first vaccination campaign launched by Dr. Edward Jenner in 1796; many objected to vaccination in Russia at the end of the 1990s.

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New Scientist has a brief new online article that poses the question as it builds from an article in a journal titled Astrobiology. The abstract is below for the Astrobiology article that summarizes an experiment testing the hypothesis. ( I love to scuba dive with my two daughters but I'll bet these fissures are too deep for us to do any on-site investigation.)

Abstract
We report the results of our efforts to study the effects of seismic shaking on simulated biofilms within serpentinite fissures. A colloidal solution consisting of recipient bacterial cells (Pseudomonas sp. or Bacillus subtilis), donor plasmid DNA encoded for antibiotic resistance, and chrysotile (an acicular clay mineral that forms in crevices of serpentinite layers) were placed onto an elastic body made from gellan gum, which acted as the biofilm matrix. Silica beads, as rock analogues (i.e., chemically inert mechanical serpentinite), were placed on the gellan surface, which was coated with the colloidal solution. A rolling vibration similar to vibrations generated by earthquakes was applied, and the silica beads moved randomly across the surface of the gellan. This resulted in the recipient cells' acquiring plasmid DNA and thus becoming genetically transformed to demonstrate marked antibiotic resistance. Neither Pseudomonas sp. nor B. subtilis were transformed by plasmid DNA when chrysotile was substituted for by kaolinite or bentonite in the colloidal solution. Tough gellan (1.0%) promoted the introduction of plasmid DNA into Pseudomonas sp., but soft gellan (0.3%) had no such effect. Genetic transformation of bacteria on the surface of gellan by exposure to exogenous plasmid DNA required seismic shaking and exposure to the acicular clay mineral chrysotile. These experimental results suggest that bacterial genetic exchange readily occurs when biofilms that form in crevices of serpentinite are exposed to seismic shaking. Seismic activity may be a key factor in bacterial evolution along with the formation of biofilms within crevices of serpentinite. Key Words: Biofilm--Chrysotile--Evolution--Pseudomonas sp.--Seismic shaking. Astrobiology 9, xxx-xxx

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U.S. v. W.R. Grace trial started February 19 in Missoula MT. The WSJ Law Blog notes that the case seems to be flying under the radar without a lot of news coverage.

The WSJ Law Blog also provides a link to a great resource about the trial - the Grace Case blog, a joint project of the law school and the school of journalism of the University of Montana. The Grace Case blog has been covering the trial - from both a legal and a journalistic perspective - since the trial started.

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Wonk 411 posted a comment regarding my April 7 post on GIT. You can read the full comment under the post.

In essence, Wonk 411 trys to justify the GIT result by suggesting that silica exposures are different than asbestos exposures because some silica exposures may be ongoing. Wonk is right that silica exposures may be ongoing. That is, however, a distinction without a difference for at least two reasons. First, Wonk assumes that asbestos exposures are over, but in fact they are ongoing for many products. Second, the theory for enjoining claims is to protect a company against a judgment that might hurt its finances. But that risk of an adverse judgment also arises from new silica exposures as it does from old silica exposures. The risk of adverse judgments also arises if a company issues misleading SEC filings or engages in fraud, but certainly no one would suggest that a bankruptcy court would or should immunize it from being sued. The same risk also arises from suits by state Attorney Generals, which is why they filed an amicus brief discussed in today's post. So, I appreciate Wonk taking the time to comment, but I'd say the comment is wrong. See below as to ongoing asbestos exposures, a subject I know way too well from having litigated asbestos-in-buildings cases for 9 years for GAF and then WR Grace.

In fact, asbestos exposures are or may still be occurring today. How and why is that? Because many asbestos-containing products are still in place, and some of the products may give off fibers if disturbed under certain conditions. Thus, the buidling materials sold by various bankrupt companies remain in place in buildings. For example, W.R. Grace's asbestos-containing Monokote fireproofing is still installed on the beams of many buildings for fire protection. Innumerable feet of wallboard still are joined by joint compounds containing asbestos. Millions of feet of asbestos-containing pipe-covering are still installed in pipe chases and boiler rooms around the nation. Millions of pieces of Congoluem's allegedly dangerous floor tiles also are still in place in hospitals and schools. Want proof? Look at the claims in asbestos bankruptcies that are filed by Dan Speights' law firm as counsel for building owners with asbestos-products still in place. They want lots money to repair or replace the materials even though claimants long ago stopped bringing the claim in the tort system because they could not reliably win the claims. You also clould read Judge Fitzgerald's opinion denigrating the viability of Zonolite insulation claims. You can see the opinion here. The opinion (correctly) concluded as follows:


"Claimants were required to show a disputed material fact to establish that ZAI poses an unreasonable risk of harm. Claimants failed to provide any epidemiological evidence or any risk assessment. They have shown no material fact in dispute. Claimants cited to the OSHA standard as an applicable regulatory yardstick, but failed to account for the lifetime exposure differences between the workplace and a home attic insulated with ZAI. In addition, the evidence established that the risk of exposure from ZAI in the home is less than that of dying in a bicycle accident, by drowning, or from food poisoning.

The various Daubert objections have been addressed in this opinion and will be incorporated into an order.

Without any scientifically reliable evidence indicating that ZAI poses an unreasonable risk of harm, this court must grant Grace's motion for summary judgment in part and deny claimants' motion for summary judgment in part, limited to the threshold issue of unreasonable risk of harm as it pertains to all proofs of claim. While the determination made herein may prove to be fatal to the property damage claims, several different theories of liability were proposed in the individual proofs of claim and may still need to be addressed..... "

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A Swiss media article describes significant media and partisan attention focused on the first day of trial in an asbestos-related criminal prosecution of former owners and managers of Eternit businesses that for decades were global manufacturers of asbestos-cement board, among many asbestos products. Hundreds of people are said to have gathered for the first day of the prosecution that involves allegedly knowing or reckless industrial hygiene decisions said to have resulted in premature deaths and injuries to over 2,500 manufacturing plant employees and local residents. The alleged misdeeds of Eternit have been widely chronicled over the years while this prosecution effort was ongoing. Informative articles are available here and here , and an article I wrote back in 2004 provides some context for EU businesses facing asbestso litigation's expansion into Europe.

Prosecutions of this sort raise a wide-range of issues. From the American perspective, perhaps the most striking aspect is that Italian law expressly allows trial that combine criminal and civil claims, thus giving the defendants significant risks that would not exist in a civil trial in the US. Italian law also allows the judge to reduce sentences to some degree if compensation is paid to victims. This trial will not end quickly - Italian criminal trials move slowly and include a variety of procedures not directly comparable to American criminal trials.

What's the likley outcome? My assumption/prediction is that this trial ultimately will result in Eternit entities and the individual defendants offering to plead guilty subject to a proviso limiting their sentences in return for creation of a significant private fund/trust that will pay money to claimants and that will make some payments to Italian government agencies such as INAIL to offset payments that have paid medical expenses for victims. I strongly suspect the deal will not be as cushy for the defendants as was the tobacco deal cut in the United States.

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One factor behind asbestos litigation is the amount of media attention focused on asbestos. Accordingly, it's telling to see the increasing media attention around the globe. A current example arises as the Korean media focuses attention on products with talc that may or may not contain asbestos fibers. A Korea Times article of April 5 reports on 11 baby powers said to be "contaminated," and describes calls for investigations into whether balloons or gum used talc that contained asbestos fibers.

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Here is an article by an Ebay trader showing pictures of old baseball gloves, and really old football helmets (think Red Grange style helmets) lined with asbestos to provide padding. These are just two of the many uses of asbestos as a textile.





Why, you might wonder, is an Ebay trader writing about asbestos. It's been well known for some time that asbestos litigation generated its own niche of Ebay shoppers, as is described here in an article from 2003. Why? For one, both plaintiff's lawyers and defense lawyers seek to find visual evidence for use in trials and during discovery. So, we buy old catalogs, pictures or even samples of products. Investigators and lawyers also buy and test old products for the presence of asbestos. For example, in a case I was involved with, there was no immediately clear source of asbestos exposure, but the plaintiff had a form of cancer (mesothelioma) usually but not always linked to inhalation of asbestos fibers (especially inhalation of amphibole asbestos fibers). Testing of old appliances proved that he had worked for a few years at an appliance production facility operated by a company that sold a line of products that included wires insulated with asbestos fibers.

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The oral argument transcript is availble here.

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Are American lawyers going abroad to seek out new asbestos claimants? Of course they are. Like any business person, they are seeking new markets.

Shipyards in Europe provide concrete examples. In particular, a March 24, 2009 article describes an American plaintiff's lawyer, Mitchell Cohen, speaking to shipyards workers in Malta, with the group apparently having been assembled the GRW trade union. According to the article, Mr. Cohen was talking about making claims against US asbestos trusts. Likewise, a 2004 article describes Mr. Cohen having been in Spain to speaking to and handing out settlement checks from US asbestos trusts to persons who worked on US Navy vessels in Rota, Spain.

Why shipyards? Shipyards anywhere in the world are great sources for asbestos claiming due to widespread use of asbestos during shipbuilding, including signficant use of the highly toxic amphibole fibers. Indeed, much of America's asbestos claiming arose from shipyards. Now, the claiming pattern is being repeated with claimants from shipyards around the globe seeking to file lawsuits and claims against asbestos trusts established in the US through Chapter 11 proceedings.

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James Hardie is an Australian building products company that made lots of asbestos-cement products, some of which were made from the especially lethal blue asbestos fiber known as crocidolite. In years past, it was being sued frequently. It then redomesticated to the Netherlands and established a trust to pay victims, perceiving the law there as favorable towards that end. The trust turned out to be grossly underfunded (which in my opinion was obvious from the start to anyone with a brain and any meaningful experience in asbestos litigation). Ultimately 10 of the senior officers were taken to trial by Australian securities regulators for misleading statements to investors. A recent newspaper article indicates the case is moving towards the end of the becn trial, with summations having started. A decision is expected in a few months. It will be fascinating to see how the judge assesses the situation.

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I never cease to be amazed at all the ways that asbestos fibers were put to use, and here's one new to me. According to Pravda, asbestos-cement was used to build cement bombs in the 1940s. The article from Pravid is here, and the full text also is set out below.


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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 WWIIThe 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

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A prior post on this blog described the UK government issuing a Consultation paper requesting views and information on, among other things, whether it should support legisaltion to cause compensation to be payable persons diagnosed as having pleural plaques attributed to asbestos inhalation. The UK government had said it would provide its position during November 2008, but did not do so. On February 11, 2009, however, Gordon Brown publicly said the Government will "soon" announce its view.


I submitted to the UK government a detailed outline of reasons why my opinion is that payments should not be made for pleural plaques. The paper is available here.

Below is the Q and A that prompted the comments by Gordon Brown.

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http://www.theyworkforyou.com/debates/?id=2009-02-11a.1360.3


House of Commons debates
Wednesday, 11 February 2009
Oral Answers to Questions -- Prime Minister



Michael Clapham (Barnsley West & Penistone, Labour) The Prime Minister will be aware that it is almost 18 months since the Law Lords made a decision denying compensation to people suffering from pleural plaques as a result of negligent exposure to asbestos. Does he agree with me that we can restore justice and fairness only if that Law Lords' decision is overturned?



Gordon Brown (Prime Minister; Kirkcaldy & Cowdenbeath, Labour) I met my hon. Friend last week and we talked about this very issue. It is very important that we get a resolution following the court judgment on pleural plaques. The Secretary of State for Justice has been looking at this matter and talking to his colleagues right across Government about the implications of what can be done, and I can assure my hon. Friend that an announcement will be made very soon.

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How should governments and courts decide/define when persons have a condition that should warrant payment of compensation through tort claims or through government agency programs ? The question is relevant in many settings, but the issues I know best relate to asbestos litigation. The question is presently the subject of discussion in a variety of jurisdictions and contexts.

Issues of this sort are under discussion in the UK. There, asbestos-related cancers are increasing significantly, and so are lawsuits seeking damages for the cancers. Paying compensation for cancer is easy to understand in many instances. However, some groups want to go further. Thus, some constituencies are urging the UK government (Britain and Wales, for this purpose) to use legislation to change recent case law so that payments may or will be paid to persons who can be deemed to have a condition known as "pleural plaques." Plaques are marks on a lining outside the lung, and the plaques are markers of past asbestos inhalation, but do not cause any impairment except, perhaps, in unique circumstances.


These issues arise because the House of Lords issued an opinion holding that common law compensation was not payable, concluding in essene that plaques do not constitute an injury. Subsequently, the UK Ministry of Justice issued a 9 July 2008 "Consultation" paper asking for views on whether the UK government should use legislation to allow or facilitate payment of compensation to persons with pleural plaques. The UK Consultation paper is a lengthy document setting out information about the issues, and five possible alternatives for government action, with a cost estimate for each of the five proposals. The government's Consultation paper is available online at: http://www.justice.gov.uk/publications/cp1408.htm.

Many papers were submitted on both sides of the issues, and the collection will be posted here as time permits. For now, I've posted online an image of the paper I submitted in opposition to the two most extreme aspects of the proposals set out in the Consultation paper.

The UK Government is expected to submit a reply to all the papers, and the reply is expected during November 2008.

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With election day in the US just 2 days away, this is a plea to all to get out and vote on Tuesday, if it's not already done.

This also seems an appropriate time to comment that it seems plain that both politics and tort litigation tend to inspire extreme views, generally to the detriment of society.

Our presidential campaign this year has been marked by ads and extremist emails too often filled with either outright lies or distortions of small nuggets of truth. On top of that come blatantly extreme attacks on each contender's personal life and views. I'll add my voice to the many who are asking for "better" from our politician and parties.



Sad to say, the same is too often true for discussion of tort litigation issues. Extreme views in tort litigation are illustrated by articles built around extreme cases instead of in depth looks at the overall facts. Extreme attacks on individuals are illustrated by comments posted beneath a Wall Street Journal blog post that noted the much too young death of Fred Baron, a very successful but sometimes controversial plaintiff's lawyer who spent decades on asbestos litigation, with his early work shaped and informed by his work related to cases arising from an infamously dirty place commonly known as the Tyler Texas pipe plant. In my view, debate about tort litigation issues also needs "better" than extremism.

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A prior post here noted that Canadian scientists recently criticized the Canadian government for continuing to support global sales of chrysotile asbestos fibers. The industry historically was very valuable for Canada in terms of jobs, taxes and revenues - the mining itself is graphically shown in a wonderful McCord Museum set of online photos of miners and the mines that show abysmal safety practices.


According to a front page Globe and Mail article on October 31, 2008, Canada took a formal position of silence this past week at proceedings under the Rotterdam convention to decide whether chrysotile asbestos fibers should be added to a list of the world's most dangerous substances and thereby banned to a large degree. In past years, Canada actively spoke against adding chrysotile to the list. The net result was the same because the convention calls for consensus, which was not achieved since nations such as Pakistan and India oppose the ban. Those nations are among many in which asbestos-cement board remains a popular building product despite hazards that may arise if good work practices are not used when the material is cut or destroyed. Cement board is a strong building material used for many roofs and walls in countries that lack trees and/or the infrastrcuture needed for lumber for use for building materials, and is flexible enough that scrpas of it were molded into a giant penguin shown here because of concerns about the asbestos in it.

This outcome is major disappointment to groups such as the International Ban Asbestos Secretariat that has worked for over a decade to obtain a global ban on asbestos fiber sales.

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The Canadian Medical Association has come out with an editorial, described here, that calls on Canada to join with other countries to further regulate "asbestsos" exports. The topic is of interest in Canada because its been a major exporter of asbestos for decades, and so the fibers produce jobs, corporate profits and tax revenue. The issue is in part caused by disputes about how safe or unsafe are the various types of asbestos fibers and their various end uses. The topic is relevant here because a recurrent issue in tort litigation no doubt will be whether and how health standards and practices in one country should effect what happens in another country or be applied in different countries.

The same issues also arise for politicans, as illustrated by the article. In the US, the issue has arisen during the US presidential election through Senator Obama has called for further and/or additional enforcement of terms intended to protect workers and "the environment" against processess that are not deemed as safe as practices in the US. Some have called it that a good idea, and others call it "protectionism." Some would say that it is short-sighted if the US and other "developed" economies do not push or "nudge" others to move towards less risky practices. Otherwise, it seems that industry is receiving a subsidy in the form of allowing it to undertake operations known not to be "safe." That said, others argue that the US should "let the free market" work and not "interfere."

Lots of room for debate in this area, and it will be interesting to see what happens.

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The NY Times has a great opening paragraph on this:

"Nanotubes, one of the wonder materials of the new age of nanotechnology, may carry a health risk similar to that of asbestos, a wonder material of an earlier age that turned into a scourge after decades of use when its fibers were found to cause lung disease ..."

Full article:

NY Times - Health Risks from Nanotubes

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I'm often told that asbestos litigation is essentially just a U.S. issue because our culture is said to be so litigious. However, even the reputedly nonlitigious Japanese culture has produced asbestos claims and payments. A Japanese website reports that a Japanese corporation recently voluntarily paid compensation to a person claiming to suffer from mesothelioma. The claimant was aided by a victim's rights group based in Japan. The victim worked at a manufacturing plant reported to have used crocidolite fibers.

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