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  • Kirk Hartley

The Next “Asbestos” – Dust from Mammoth Tusks !

In Yakutsk, Russia, “the next asbestos” has been identified – it’s dust generated from artisans carving up the mammoth tusks that are estimated to more or less litter the tundra at a rate of 600 skeletons per kilometer. Really ! See the May 13, 2008 Chicago Tribune article by Alex Rodriguez.

So, how is this “the next asbestos”? It turns out that tusk carvers use mechanical grinding tools and generate lots of dust, but do not want to wear masks. According to the article:

“At his workshop, the whir of grinding tools fills a second-floor room where 16 Yakut artisans painstakingly carve chunks of tusk into everything from figurines of bears and tigers to hilts for decorative daggers and swords. Mammoth tusk dust hangs heavy in the air, an occupational hazard that Petrov says he compensates for with a $130 bonus tacked onto the workers’ $520 monthly salaries.”

Now you see the linkage – a developing industry with workers anxious for jobs, and extra pay offered to work with a hazardous substance. And, the corporate CEO is aware of “the hazard” but thinks he is doing the right thing by paying a 25% bonus for “assuming the risk.” But of course no one really knows the full extent of the risk. So, what happens in x years when some but not all of the artisans contract mammothosis or, worse yet, a malignant tumor linked mainly to working with mammoth dust, with cigarette smokers suffering the tumors at a 10X higher rate.

Mammoth dust, of course, is not really going to be the “next asbestos.” The facts from the article, however, sound very much like the testimony one can hear from factory employees who worked in dusty factories, including people who worked even after OSHA took effect in 1971. The issues also take on new vitality because asbestos uses is spiraling upward in Asia and the former Russia, and the media has finally caught up to the fact that carbon nanoparticles appear to raise tumor risks akin to amphibole asbestos fibers. 

The policy question it seems is: what can/should/might societies  do to try to avoid future deaths, economic losses, societal losses, and litigation from hazardous materials ? Is an OSHA “top down command and control” regulation the only/best answer, along with less than extravagant workers compensation payments? Or, should the payments be raised to higher levels that are more actually likely to satisfy the injured and their families? Should the owner be offered some kind of creative new economic “Nudge” to keep the employees safe, as might argued by Messrs. Sunstein and Thaler in their wonderful book: Nudge, Improving Decisions About Health, Wealth, and Happiness. Or, should a present economic “Nudge” go directly to the employees? Or do we wait for and allow repetitive lawsuits against tusk finders/sellers who “knew or should have known of the “dangers of mammoth dust,” and then fault the lawyers who bring the lawsuits for imposing a “tort tax” on society.

Issues of this sort abound,and in my view, receive too little attention in the “tort reform” fights.  Other issues arise because insurance is not what it used to be, which is a problem since one of the rationales for some product liability rules is that risk can be spread through insurance. In reality, however, insurers seek to exclude long-tail risks. Thus, asbestos exclusions and pollution exclusions were added to CGL policies in the 1970s and 1980s. Mold became an issue later and also is subject to exclusions. Business Insurance commented recently that such exclusions may encourage “little guys” to try to hide problems instead of fixing them, but ultimately some lawyers will come along and take everything when some people actually do become really ill. 

There is much room here for innovative thinking on all sides of the many issues. 

#Asbestos #MassTortIssues #PolicyIssues

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About Kirk

Since becoming a lawyer in 1983, Kirk’s over 30 years of practice have focused on advising a wide range of corporations, associations, and individuals (as both plaintiffs and defendants) on both tort and commercial law issues centered around “mass torts.”

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