Archive for the ‘Asbestosis’ Category

The ASARCO trial is almost over, and an enormous number of environmental and asbestos-related lawsuit claims could depend on its outcome.

Closing arguments will be given on Thursday June 12, for the case in which Arizona-based mining company ASARCO alleges that its parent company, Grupo Mexico, systematically stripped its assets and left behind little more than a shell.

Grupo Mexico is a mining conglomerate headed by Chairman and Chief Executive German Larrea Mota-Velasco. The company is the world’s third largest producer of copper, and has mining interests in several South American locations.

ASARCO filed for bankruptcy in 2005, and during the process a bankruptcy judge removed Grupo Mexico’s control over the company due to allegations that the parent company was stripping ASARCO’s assets in an attempt to protect those assets from asbestos and environmental liability claims.

Among ASARCO’s claims are that Grupo Mexico knew it faced potential liabilities of more than $1 billion when it acquired the ASARCO company in 1999, and also that the parent company knew it might also shoulder the responsibility of cleaning up to twenty Superfund sites.

In addition, ASARCO claims that Grupo Mexico stripped the subsidiary of assets, including Peruvian copper mines that ASARCO once had a significant stake in and were the company’s most significant asset. ASARCO claims the parent company did this to prevent the mines being used to pay ASARCO’s creditors.

ASARCO also claims that Grupo Mexico used the fact that it controlled all the parties in the transaction to its own advantage, because it allowed the parent company to underpay ASARCO for the mines.

ASARCO’s legal battle began Monday May 12, with the beginning of a multi-billion dollar civil lawsuit against Grupo Mexico. Among those who testified at the trial was German Larrea Mota-Velasco, who repeatedly denied wanting the Andes copper mines in question, and who stated that he had never intended ASARCO should be forced into bankruptcy.

The outcome of this civil case will likely determine whether or not many of ASARCO’s creditors—including contaminated sites in many western states, as well as bond creditors and former employees and others suffering from asbestos-related diseases that the company is liable for—will see any money when the company emerges from bankruptcy. Some estimates say that ASARCO is responsible for tens of billions of dollars worth of liability, including several billion dollars worth of claims relating to exposure to toxins such as asbestos and lead.

The Environmental Protection Agency has filed a complaint against a company that it believes intends to scrap a liner that contains large amounts of asbestos and PCBs.

The company is Global Shipping LLC, based in Cumberland, Maryland. The EPA believes that the company has plans to scrap the SS Oceanic, a 682-foot liner, at a port in Gujarat, India.

The complaint was filed by the EPA in San Francisco, and was subsequently denied by Global Shipping. The EPA complaint imposes a fine of $32,500 per day.

The SS Oceanic was built in 1951 and reportedly carries 250 tons of asbestos, and 210 tons of PCBs within its framework. Both of these materials were widely used in ship-building prior to the late 1970s. Both materials are known human carcinogens, and asbestos exposure can also cause chronic lung conditions, including asbestosis.

Many environmental organizations are concerned about the possibility environmental and health effects of the dismantling of ships such as the SS Oceanic, not only because workers may be exposed to large amounts of the contaminants, but also because these toxic chemicals can be released in large amounts into soil and groundwater.

Dismantling and scrapping of ships is often done in Bangladesh, India, and China.

Founder and President of Global Shipping, Dr. Anil Sharmer, told an Indian newspaper that the SS Oceanic will not be scrapped in India, but is actually intended to be sold to buyers in Dubai or Macau. However, Sharmer said he could not confirm the current location of the ship.

The EPA, and a non-profit environmental group known as Basel Action Network, believes that the SS Oceanic is bound for a port called Alang in Gujarat, where older ships are often scrapped for their valuable steel.

However, according to Rich Vaille, the EPA’s Pacific Southwestern Region Associate Director for Waste Program Enforcement, federal law prohibits companies from exporting PCBs in any form, including in ships that are being sent overseas for scrapping.

According to the federal Toxic Substances Control Act, says Vaille, companies that illegally export PCB waste in this way are circumventing U.S. requirements for safe and proper disposal of the waste.

Another EPA spokesperson, Dean Higuchi, said that the agency wants the ship to be cleaned of asbestos and PCBs before being scrapped.

In response to the EPA’s complaint, Global Shipping says that it did not have to notify the EPA before moving the ship, and also that the EPA did not ask the company what it planned to do with the ship before filing its complaint.

Jim Puckett, director of the Basel Action Network, says that workers in the Alang port who are involved in scrapping the ships are exposed to extreme hazards, and don’t have the knowledge or equipment needed to safety work on the ships. Puckett also pointed to a 2006 government survey of Alang shipyard workers that indicated one in six of the workers had developed asbestosis symptoms.

Galveston, Texas - A woman from Galveston, Texas, claims that she developed mesothelioma as a result of secondary exposure, and has filed suit against the Marathon Petroleum Company and several other defendants, including the Todd Shipyards Corporation and the BASF Corporation.

Cynthia Leigh Chason filed suit on May 8, 2008, claiming that her asbestos exposure occurred as a result of her father’s work on asbestos-containing products.

The petition filed on May 8 states that “Ms. Chason was exposed to asbestos through household contact from her father, Loy Garner, who was employed by Marathon from 1969 through at least 1979. In addition, Ms. Chason was exposed through her father who also worked at Smith Douglass in Texas City from 1961 to 1969; and additionally he did some short-term contracting work in the 1970s for BASF in Freeport, Todd Shipyard in Galveston, and Monsanto in Texas City.”

The suit claims that Cynthia Leigh Chason was “exposed to large quantities of asbestos” as a result of her father’s occupations, some of which involved handling asbestos-containing products, or working with or around asbestos-containing machinery.

The suit also argues that the defendants in the case were aware that asbestos was a dangerous substance and that they failed to warn their employees that exposure to asbestos was a health hazard. In addition, claims the lawsuit, the defendants also failed to warn employees that asbestos fibers could be transported home and that other family members could be exposed to the fibers.

Asbestos-related disease caused by secondary asbestos exposure is relatively rare. In most, if not all, cases of secondary exposure, the resulting diseases is mesothelioma rather than asbestosis, because the cancer can develop after relatively small amounts of asbestos exposure. Asbestosis usually develops after long-term or heavy exposure to airborne asbestos fibers.

Secondary exposure to asbestos usually occurs in people who live with a family member who works with or around asbestos or asbestos-containing products. If the family member working with asbestos does not take the precautions needed to prevent their own exposure, they are able to expose the people they live with if they arrive home with asbestos fibers adhering to their clothing.

Mesothelioma is a particularly devastating disease due to the aggressiveness of this type of cancer. The disease spreads quickly and is highly resistant to all current forms of treatment. Mesothelioma has a very high mortality rate, and around half those diagnosed with the disease will die within two or three years.

The lawsuit states that litigation will continue even after Cynthia Leigh Chason dies.

After the Manhattan Institute released its damning report on asbestosis lawsuit scams, a doctor who has been involved in testifying as an expert witness commented on the situation.

Dr. David Weill, who has testified twice as an asbestosis expert before Senate committees, is the director of the Lung and Heart-Lung Transplant at the Stanford University Medical Center.

Asbestosis, says Weill, is a “pretty serious thing, possibly fatal.” That makes it frustrating that thousands of fake asbestosis claims have made it difficult for the genuine asbestosis sufferers to obtain fair compensation for their injuries.

Weill says that the genuine claims “get diluted out by the false claims.” In the very large class action lawsuits, plaintiffs often receive only a few thousand dollars. A windfall for people who don’t actually have the disease, but for people who are genuinely affected by asbestosis, a few thousand dollars can’t begin to compensate them for the way their lives are changed by the disease.

In recent years, Weill helped uncover facts about a massive scam that was carried out in Texas. It was discovered that plaintiffs suing for compensation for silicosis had already received compensation for asbestosis, a disease with an entirely different cause. The scam involved both lawyers and doctors, and the manufacture of thousands of false silicosis claims.

In testifying to the Senate, Weill explained that on an x-ray asbestosis and silicosis look like entirely different diseases, and furthermore than it “would be extremely unusual for one person in a working lifetime to have sufficient exposure to both types of dust to cause both diseases.”

In addition, said Weill, “outside the litigation setting, confusion between silicosis and asbestosis does not occur.”

Weill says that the attempted fraud in the Texas case was so blatant that the same plaintiff was diagnosed with asbestosis by one screening firm in February, and the next month was diagnosed with silicosis by another screening firm. However, in both cases the screening firm didn’t pick up any symptoms of the other disease. According to Weill, a treating physician would have diagnosed both silicosis and asbestosis in the same x-ray if both diseases were present.

However, in these massive class action suits, the physicians who read the x-rays rarely had any contact with the patients who supposedly had the diseases.

Weill was later hired by W.R. Grace & Company to help design a clinical study of the asbestos claims that had been made against the company. The study demonstrated that more than 80% of the asbestosis claims that had been made against W.R. Grace & Company were actually false.

The American Bar Association has been supporting federal legislation that would establish specific medical criteria for asbestos-related litigation since 2003. However, the Manhattan Institute report says even that may not be enough, as unscrupulous attorneys might soon find ways around such legislation.

Around ten thousand Americans die every year from asbestos-related diseases. Due to the long latency period of these diseases—of between ten and fifty years or more—experts predict that death rates will continue to grow, and won’t peak until almost 2020.

This week is Asbestos Awareness Week, and people such as Michael Harbut, M.D., of the Karmanos Cancer Institute in Detroit, are hoping to increase awareness of asbestos-related illnesses, and on the importance of early diagnosis of the diseases.

Asbestosis and mesothelioma, both caused only by exposure to asbestos, are two particularly debilitating asbestos-related diseases. They are the most common and perhaps the most well-known of the illnesses that develop only as a result of asbestos exposure.

Asbestosis generally develops after repeated exposure to inhalable asbestos. It causes pain and difficulty breathing, and symptoms continue to worsen for as long as asbestos exposure continues. However, the damage caused by the disease is not reversible, and symptoms remain even if asbestos exposure ceases.

Mesothelioma, on the other hand, can develop thirty or more years after a relatively short period of asbestos exposure. This cancer most commonly develops in the lining of the lungs, but can also develop in the lining of the abdomen, heart, or testicles. Like asbestosis, mesothelioma is incurable. These types of cancer are also notoriously aggressive and difficult to treat, and have an almost 100% mortality rate.

Over the weekend, Asbestos Awareness Week kicked off with a conference hosted by the Asbestos Disease Awareness Organization in collaboration with the Karmanos Cancer Institute. The event included several speakers, as well as a candlelight ceremony and brunch to remember those who have already died from asbestos-related diseases.

The tragedy of asbestos-related illnesses is that thousands of deaths could have been avoided through the provision of safety equipment to prevent exposure. Another is that the diseases are so difficult to detect early that many people are not diagnosed until they are already suffering from advanced stages of illness.

Michael Harbut of the Karmanos Institute stresses the importance of early detection of asbestos-related diseases, saying “Early detection helps people live longer and less painfully…It can take a very brief exposure to be affected. There’s no such thing as a safe level of exposure.”

Between 4,000 and 8,000 new cases of mesothelioma alone are diagnosed every year in America. Michael Harbut says that might be only the tip of the iceberg, and that mesothelioma accounts for the smallest percentage of cancers that can be attributed to asbestos exposure.

March 19, 2008, Tennessee – The Tennessee Court of Appeals has decided to uphold a jury verdict that awarded $5 million to former railroad worker Thurston Hensley.

Hensley filed the suit in 2002, after developing toxic encephalopathy and asbestosis as a result of working as an electrician for railroad company CSX Transportation. Hensley worked for CSX for 33 years, at the company’s railroad yards at Corban, KY.

Asbestosis is a chronic lung disease that is caused by long-term asbestos exposure. The disease leads to difficulty breathing due to lung scarring caused by inhaling asbestos. Encephalopathy in railroad workers is most often caused by exposure to toxic solvents.

During the initial trial, the jury in Hensley’s case awarded $5 million in compensatory damages after deliberating for two and a half hours. The case was filed under Federal Employer Liability Act, which allows compensatory but not punitive damages to be awarded.

During the three week trial, the jury had heard testimony about Hensley’s exposure to toxic solvents and asbestos, and the results of the exposure.

The former railroad worker claimed he had been constantly exposed to chemical solvents and asbestos during his 33 years working for CSX, suffering both lung and brain damage as a result of the double toxic exposure. The solvents Hensley had been exposed to include carbon tetrachloride, tetrachloroethylene, trichloroethane, and trichloroethylene.

The railroad appealed the jury’s decision on the basis of several factors. According to the railroad’s defense team, the statute of limitations had already expired on the case. The railroad also questions the judge’s charge, including the fact that the judge had “predetermined” that the plaintiff was affected by the diseases he claimed, and also that the judge did not tell the jury they must consider whether the plaintiff had a “genuine and serious” fear of developing cancer. In addition, the defendants said, the judge had erred in not declaring a mistrial following inflammatory statements made during the plaintiff’s closing arguments.

The Tennessee Court of Appeals, however, disagreed on all of the defendant’s appeal claims, and upheld the jury’s decision to award $5 million to Thurston Hensley.

CSX Transportation has already settled more than 450 solvent exposure claims but continues to deny there is a link between solvent exposure and brain damage, despite the growing body of medical evidence that strongly points to a direct link between the two.

Just as there is a now-proven link between asbestos exposure and the development of asbestosis and mesothelioma, the link between solvent exposure and encephalopathy has been proven by dozens of independent medical studies. Many doctors have suggested that thousands of railroad workers across the nation have suffered from the effects of solvent exposure but remain undiagnosed.

March 12, 2008 – Judge Paul E. Pfeifer, Ohio Supreme Court Justice, this week commented in an article that provided some insight into an asbestos disability compensation case that was resolved on October 23, 2007.

Judge Pfeifer commented on a worker’s compensation case that focuses on Ferall L. Limle, who had been a DuPont employee for almost 27 years before leaving the company in 1992 to work for the Zane Trace school district.

Limle was diagnosed with asbestosis, pneumoconiosis, and pleural disease in 2001. Asbestosis is a chronic lung disease that is characterized by lung scarring and symptoms such as painful and difficult breathing. As the name of this debilitating disease suggests the only cause of asbestosis is exposure to asbestos.

Limle had been exposed to asbestos during the years of his employment with DuPont. Following the diagnosis, Limle filed a workers’ compensation claim for the asbestos-related conditions. Three years later he filed for permanent total disability compensation.

This second claim was considered by the Industrial Commission of Ohio. Among the evidence discussed were reports from Dr. Michael L. Corriveau, who estimated that Limle was 75% work-impaired as a result of the asbestos-related conditions, and further stated that Limle was not capable of physical work-related activity.

Limle was granted permanent total disability compensation based on this and other medical reports. The Commission’s findings included that Limle was medically incapable of permanent employment, and further that his retirement from DuPont was not a voluntary “abandonment of employment.”

However, Limle’s former employer, DuPont, disagreed, and filed a complaint with the court of appeals, alleging that the commission’s decision constituted an abuse of discretion. The court of appeals is the next step in the process of deciding a workers’ compensation claim.

The DuPont complaint was not upheld, and the court of appeals agreed that the commission’s findings were based on solid evidence from Limle’s doctors.

Finally, the case came before the Ohio Supreme Court. Judge Pfeifer notes two important points here. First was DuPont’s claim that other non-related medical conditions suffered by Limle were included in the medical assessment, and contributed to an incorrect medical evaluation. That, says Judge Pfeifer, was simply “not true.”

DuPont also claimed that Limle should not be compensated because he had retired from DuPont before becoming disabled, he should be ineligible for total permanent disability. Judge Pfeifer, however, notes that Limle did not leave the labor market entirely, so the claim cannot be negated on that basis.
In addition, says Judge Pfeifer, the Supreme Court considered a previous legal decision made in 1995, in which the court upheld a similar case in which claimants had suffered long-latency diseases that did not manifest until after retirement.

This, says Judge Pfeifer, illustrates another reason why DuPont’s argument was wrong. Long-latency occupational diseases can manifest decades after exposure, and in the intervening years the affected person may be completely unaware of the exposure and the resulting health risks.

After consideration of these facts, the court voted by a seven-to-zero margin that Ferral L. Limle’s retirement from DuPont did not affect his eligibility for the claim for permanent total disability.