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  • Writer's pictureKirk Hartley

Response to Wonk 411 Comment Seeking to Justify Part of the GIT Result

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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