Asbestos Victim Can’t Refuse Autopsy, What’s That About?
By asbestoshub | November 3, 2008
A Seattle man expected to die from an asbestos cancer is fighting a requirement that he must undergo an autopsy after his death, a requirement the court mandates before his estate can sue the company that allegedly poisoned him through exposure to asbestos.
James Ross, age 71, objects to an autopsy on moral grounds and has filed a motion with the Seattle court asking that the autopsy requirement be waived, despite the adverse effect it will have on his lawsuit against Kaiser Gypsum and T.H. Agriculture & Nutrition. The defendants in the case are of course fighting the motion, claiming that if he does not agree to an autopsy his case should be dismissed.
Under Washington law, participants in asbestos litigation can opt out of the required autopsy if they cite religious objections. According to court documents, Ross objects on his personal belief that an autopsy results in ultimate destruction and disfiguration of the body.
Refusal to honor Ross’s moral objection violates Washington’s statute governing autopsies and contravenes fundamental notions of religious freedom and equal protection.
“It’s not a matter of nominal faith,” explains Matthew Bergman, an attorney for Ross. “This is directly related to constitutional rights since autopsies are seldom necessary to confirm diagnosis. Why shouldn’t James Ross’ request to refuse an autopsy be honored?”
Ross worked in and around asbestos for several decades as a brakeman and conductor for Burlington Northern Railroad based in Seattle. During the 1960s and 1970s, he performed a home remodel exposing him to the toxic and potentially deadly material. Until the late 1970s, asbestos was a common ingredient in joint compounds and ceiling and wall textures, products widely used in commercial and residential construction as well as home remodeling projects. Asbestos exposure has been linked to mesothelioma, and other asbestos-related diseases that may take as long as 15 to 30 years to manifest. Once diagnosed, patients often have only months to live.
Defendants in the pending litigation, Kaiser Gypsum and T.H. Agriculture & Nutrition, argue the differential treatment based on religious beliefs is appropriate and non-believers should be compelled to undergo the autopsy or face a greater risk for dismissal of their case. Why? If the man is diagnosed with an asbestos disease while living, what’s the point?
The asbestos lawsuit against the defendant hasn’t moved to trial because the defendants claim the plaintiff has not yet succumbed to mesothelioma.
Ross and Bergman understand the importance of the autopsy results for their case but are willing to risk the burden of proof as this decision could help aid future cases and support others in their right to deny an autopsy.
On Friday, Oct. 31, King County Judge Paris Kallas heard oral arguments from counsel on the plaintiff’s motion for a protective order prohibiting unauthorized autopsy.
Bergman believes Ross deserves the same treatment as other individuals excused on the grounds of religious beliefs and following under the first amendment of the U.S. Constitution.
“Despite the greater burden of proof in proving that the plaintiff suffers from mesothelioma, autopsies are not required to prove diagnosis,” said Bergman. “Rather, autopsies are helpful in resolving disputes only when diagnosis is already in question — that isn’t the case here.”
According to court documents, regardless of arguments for the autopsy, it is a violation of due process to mandate non-religious plaintiffs to undergo procedures while excusing those with religious objections from the same.
Let us cut you open when you die of an asbestos disease, though the idea might disturb you, or we are entitled to a get out of jail free pass since you’re not claiming religious grounds for objection. If he were to claim religious grounds for objection, it would all be fine? What is this, the Inquisition??
Topics: Law, Lawsuits | No Comments »
ATSDR Examines Asbestos Exposure to Montana Vermiculite in 28 States
By asbestoshub | October 31, 2008
The Agency for Toxic Substances and Disease Registry (ATSDR), in conjunction with state agencies in 28 states, is evaluating pathways of asbestos exposure in those states which received vermiculite asbestos from the mine in Libby, Montana. Read the ATSDR report.
Visit ATSDR for more details about the report and affected states.
Topics: Exposure | No Comments »
Asbestos Not Added to UN Watch List
By asbestoshub | October 31, 2008
There are 39 substances on the Rotterdam Convention’s international trade watch list, under which an exporting nation must ensure no substance on the list leaves its territory without the consent of the recipient country. The watch list is formally known as the Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals and Pesticides in International Trade.
Over 120 member states considered adding two pesticides – endosulfan and tributyl tin compounds, as well as chrysotile asbestos to the PIC list.
The Convention is designed to ensure that hazardous chemicals do not endanger human health and the environment but inclusion on the list is not a recommendation for an international ban or severe restriction of the use of the substance.
Chrysotile asbestos, which is widely used in building materials, accounts for 94% of global asbestos production. The UN World Health Organization (WHO) has identified it as a human carcinogen, and reports that at least 90,000 people die each year of asbestos-related diseases such as lung cancer and mesothelioma.
A number of countries, including some that continue to mine and export chrysotile asbestos, blocked its addition to the PIC list when the Parties to the Convention last met in 2006.
Apparently chrysotile asbestos will remain off the list for at least another two years.
India, Pakistan, Vietnam and the Philippines made their opposition to chrysotile’s inclusion on the list known at the talks. The three biggest customers importing Canadian asbestos.
Other countries, like Zimbabwe, Kyrgyzstan and Kazakhstan, also were opposed, but the majority of delegations were in favor of adding asbestos to the list.
Out of 126 countries, about 115 or 120 support inclusion and seven or eight who oppose.
The Canadian delegation did not make a speech, but vetoed a Swiss proposal to change the ratification process so that it would only require a three-quarter majority for listing a chemical. To be added to the list, consensus has to be achieved.
Substances on the Prior Informed Consent list are deemed dangerous, and importing countries have to be informed about their hazards.
An independent committee of scientists from around the world had recommended that chrysotile asbestos, endosulfan and tributyltin be added to the list this year.
Chrysotile asbestos is classified as a known human carcinogen by the International Agency for Research on Cancer, and many countries ban or restrict it. Last year Canada sold $77 million worth of asbestos, mostly to developing countries. At past meetings, Canada had vetoed the addition of chrysotile, saying the mineral can be used safely.
Read the United Nations Environment Programme Press Release
Topics: Facts | No Comments »
W.R. Grace Excutives to Face Criminal Trial February 2009
By asbestoshub | October 30, 2008
A federal judge has finally set the date for what will be the largest environmental criminal trial in U.S. history. Montana District Judge Donald Molloy said jury selection will begin Feb. 19 in the trial against The W.R. Grace Co. and six of its present and former executives on charges of knowingly endangering the lives of thousands of people with asbestos from its vermiculite mine near the town of Libby. The trial could take four months.
Thirty-three lawyers for Grace and the executives crowded into one side of the courtroom. Opposing them were three lawyers from the U.S. Department of Justice and Montana’s U.S. Attorney’s Office. Yes. That said 33 lawyers for 6 executives
It has been two years since the last hearing in the case, and over the years, Judge Molloy has ruled on a variety of government efforts to hold Grace responsible for the asbestos contamination. He has already required Grace to pay hundreds of millions of dollars in penalties to begin cleaning the environmental nightmare it created.
But in the criminal case, some of Molloy’s rulings were appealed by the federal prosecutors, who said the rulings could have gutted their case against Grace. After rulings mostly favoring the prosecution from the 9th Circuit Court of Appeals, Grace turned to the Supreme Court, which quickly refused to hear the matter. Imagine…how many lawyers would have gone to that hearing?
W.R. Grace’s lawyers are expected to try and resurrect many of the issues decided by the appellate court. They want to challenge the government’s asbestos testing in Libby; the introduction of earlier testing by Grace’s own scientists; and risk assessments showing Libby asbestos is a killer.
The Grace lawyers flashed colorful charts and graphs on the dozens of monitors dotting the court and began to explain their scientific premise that the people of Libby couldn’t have been harmed by asbestos in the vermiculite ore. Thirty-three lawyers to hold up pictures and try to disprove the obvious.
Gayla Benefield and Norita Skramstad are from Libby. Both have lungs damaged by asbestos. Benefield’s parents, Perley and Margaret Vatland, and Skramstad’s husband, Les, all died from exposure to asbestos from the mine.
“Grace pulls out its charts again and shows us that we’re all healed. It’s another Grace miracle,” Benefield said. “What do they think killed all those people in our cemetery?”
Environmental lawyers say that Grace most likely will produce testimony from industry-paid scientists saying the Libby asbestos really isn’t dangerous. In response, the government can point to hundreds of deaths from asbestos-related disease in the tiny town.
William Mercer, Montana’s Republican U.S. attorney, brought the criminal case before a federal grand jury even as the Bush administration was trying to force Congress to protect industry from civil asbestos claims.
Nevertheless, Mercer, Assistant U.S. Attorney Kris McLean, who is heading the case, and David Ulhmann, former chief of the Justice Department’s environmental crime section, stood their ground and took the case to a grand jury twice.
The asbestos-tainted ore from Zonolite Mountain has killed hundreds and sickened thousands in Libby and across North America, where it was shipped for use in insulation, fireproofing and garden products. Some was used to fireproof the steel frame of the World Trade Center.
On the morning of Feb. 7, 2005, Mercer stood on the courthouse steps in Missoula, reading from the 49-page indictment listing 10 specific criminal counts alleging conspiracy, knowing endangerment, obstruction of justice and wire fraud.
If they are found guilty, maximum prison sentences for the executives could range from 55 to 70 years. Grace, the U.S. attorney said, could be fined $280 million — twice the amount of after-tax profits the government says the worldwide corporation made from the mine, which closed in the early 1990s.
That day and ever since, Grace has denied criminal wrongdoing.
The government’s investigation of Grace was sparked by a series of articles published in the Seattle Post-Intelligencer in 1999. The stories showed that the company knew exposure to asbestos in its ore could kill and yet said nothing.
The Grace executives charged are:
- Henry Eschenbach, health and safety director in Grace’s industrial chemical group
- Jack Wolter, a former Grace vice president
- Bill McCaig, an early general manager of the mine
- Robert Bettacchi, a Grace senior vice president
- O. Mario Favorito, former general counsel for the corporation
- Robert Walsh, who was another senior vice president
- Alan Stringer, the last general manager of the Libby mine
Except Alan Stringer died after pleading not guilty. His death came a month after the death of Les Skramstad, a former miner who brought the asbestos into his house on the work clothes. While he struggled against asbestosis and eventually mesothelioma, his wife and three children were also diagnosed with fatal asbestos-related disease.
Topics: Exposure, Law | No Comments »
W.R. Grace Seeks to Exit Bankruptcy March 2009
By asbestoshub | October 29, 2008
Should be good news, right? W.R. Grace, who is responsible for single-handedly polluting the town of Libby, Montana, with asbestos and making its employees and residents sick with asbestos-related diseases, is seeking to come out of Chapter 11 bankruptcy proceedings. Now lawyers for people who have been injured by W.R. Grace’s asbestos are trying to block the company’s exit from bankruptcy proceedings.
Part of the W.R. Grace bankruptcy plan was to set up a trust to pay out past and future asbestos liabilities. Libby claimants filed U.S. Bankruptcy Court papers stating that the trust is designed to knock out 72% of their claims and strip them of the right to pursue damages for wrongful death.
The asbestos trust is funded with cash, insurance, and Grace stock, covers present and future damages related to asbestos exposure. Since 2000, 65 of 1,200 patients treated at a special clinic for Libby residents have died as a result of asbestos diseases. More than 100 people currently being treated are severely limited with short life expectancies.
Libby claims have cost W.R. Grace an averate $387,000.00 each due to the severity of the illnesses resulting from the asbestos mining operation and Libby residents are concerned that people with varying degrees of severity in diseases will be lumped together and denied fair apportionment of the trust funds.
A hearing will be held in late October 2008 to sort through the objections to allowing W.R. Grace to leave bankruptcy.
Relatedly, the banks who provided W.R. Grace with low interest bankruptcy loans say they should collect back interest because Grace never was bankrupt. They declared bankruptcy despite possessing great assets, because the cost of asbestos claims appeared to exceed their assets.
Topics: Claims, Exposure, Law, Lawsuits | No Comments »
Asbestos Jury Award Prompts Judge to Clarify
By asbestoshub | October 27, 2008
Milwaukee County Circuit Judge Richard Sankovitz has found that the estate of a Milwaukee man is entitled to a $1.1 million award made by a jury in an ambiguous verdict last July.
Sankovitz, who noted that he has presided over 200 trials, said this is the first time he ever had to modify a jury verdict but that in this case the instructions to the jury were unclear.
“It is unusual for a court to overturn or even tinker with a jury verdict because if there is any credible evidence in the record, even if it appears to us from our own vantage points that most of the evidence supports a different verdict, the jury’s verdict must be upheld,” Sankovitz said.
The case involved Steven Lemberger, 55, who died three months after filing a lawsuit in August 2005 that blamed his fatal illness on mesothelioma, caused by the inhalation of asbestos fibers at his workplace. The defendants in the case were the makers of brake linings that were ground in his workplace - General Motors and Honeywell International, the successor of Bendix Commercial Systems and their insurers.
One of the complications of the trial was that Lemberger suffered from mesothelioma, caused by asbestos, and lung cancer, caused by smoking tobacco. Lemberger was apparently a heavy smoker for many years.
Unlike a criminal case where verdicts are guilt or innocence, civil cases can be far more nuanced and this case was especially difficult. The jury had to answer more than 10 questions after listening to two weeks of testimony.
The jury’s answers to two of the questions appeared to be in conflict - that his death was caused by mesothelioma and that Lemberger was 95% responsible for his illness because he smoked.
“There is no evidence that he (Lemberger) was negligent in the way that he handled asbestos products or worked in their vicinity,” Sankovitz said in his ruling. “The evidence reveals no reason he ever would have had to suspect that he was breathing in a carcinogen.”
If Lemberger was found to be responsible for his own death, his widow, Colleen, would not have collected the jury award.
Sankovitz said the jury was able to distinguish that Lemberger had two forms of cancer — they found that half his medical expenses and lost wages were caused by mesothelioma.
“I believe the jury concluded that the defendants, whose products were a cause of his mesothelioma, should not be required to pay for medical expenses or lost wages that resulted from his lung cancer,” Sankovitz found.
Watch Tom Lamb report on Asbestos News Minute.
Topics: Lawsuits | No Comments »
And Now For the Next Wave of Asbestos Victims
By asbestoshub | October 24, 2008
Fiona Watterson, 44, played with bits of fibro brought home by her carpenter father when she was a young child growing up in Southport, Australia.
Fibro is a building product that has been around for a long time. In the post WW2 years, the 50’s and 60’s, it is estimated that a third of new houses built in Australia used Fibro somewhere. Fibrous Asbestos Cement products, are commonly called Fibro in Australia. Thin cement sheets, which are as thin as 4.5mm thick, have to be reinforced with fibres which for a long time were asbestos.
Ms. Watterson now realizes that it was most likely this contact with asbestos-laden fibro in the 1960s that caused her to contract mesothelioma at a young age.
She is one of a younger generation of victims of the children of those who worked with fibro and brought home asbestos fibres on clothing or who renovated fibro homes.
Lawyer Thady Blundell, who is representing Ms. Watterson in an asbestos claim, said more people in their 30s, 40s and 50s are now being diagnosed with mesothelioma.
“This is just the start of another wave of victims. The first wave was the miners, people working with these products in the building industry was the second wave, and the third wave are the wives and children inadvertently exposed in the domestic setting.”
Ms. Watterson, who has two sons aged 13 and 16, has had two doses of chemotherapy since being diagnosed with the cancer, caused by asbestos, in August.
She had been healthy before she began struggling to breathe in June.
“I was really stunned when they told me – I didn’t know what to think,” Ms Watterson, of Arundel, said.
She remembers her father storing sheets of fibro under their home, and she and her brother and sister playing hide-and-seek under there.
“We played with everything. We used to roll marbles down the fibro.”
Lawyer Carl Hughes, of Slater and Gordon, said about 10 per cent of asbestos cases he dealt with involved women who contracted asbestosis or mesothelioma after handling their husbands’ work clothes.
Brisbane mother-of-two Rita Charlton, 63, is paying the price for being a good wife back in the 1960s and ’70s. When her husband, Michael, came home from work covered in dust, she would sweep up whatever he trailed into the house and pop his clothes in the wash.
Today Mrs. Charlton has asbestosis, cancer of the right lung and suspected mesothelioma, likely from the abestos fibers carried on her husband’s work clothes.
“I always shook things out and I guess I breathed it in,” she said.
Slater and Gordon is seeking compensation for Mrs Charlton from companies that employed Mr Hughes.
Topics: Exposure | No Comments »
Canada Prepares to Defend Continued Asbestos Export
By asbestoshub | October 23, 2008
The Canadian federal government is being accused of the “shameful political manipulation of science” as it heads into international meetings where it is expected to defend Canada’s controversial exports of asbestos.
Three medical journals are blasting Prime Minister Stephen Harper’s government for “suppressing” a Health Canada report on the health dangers posed by asbestos and supporting exports of the mineral to developing countries.
This week’s edition of the Canadian Medical Association Journal is calling for a ban on the exports, which it describes as a “death-dealing charade.”
A report to appear this year in the U.S. Journal of Occupational and Environmental Medicine says Canada’s position that asbestos can be safely exported to developing countries “should be truly embarrassing to the Canadian government and people.”
And in an online editorial, the British journal Annals of Occupational Hygiene says suppression of the Health Canada report means the “best evaluation” of dangers posed by asbestos will not be on the table at international meetings in Rome next week.
The Canadian government and Stephen Harper, Prime Minister (pictured below) is expected to send a delegation to argue against putting asbestos on a United Nations watch list of dangerous substances and to defend continued asbestos exports from Quebec.
Health Canada says it is still reviewing the report, which was submitted in March by an expert committee the department brought together to review the threats posed by asbestos.
The Foreign Affairs Department will say only that it is still preparing for the Rome meetings.
While asbestos use in Canada has plummeted because of health concerns, Canada remains the world’s second-largest exporter, behind Russia. Quebec’s open-pit mines ship it to such developing countries as India, Indonesia and Thailand.
India uses Canadian asbestos because it can no longer be legally mined there. South Korea and Sri Lanka import Canadian asbestos as well.
Canada’s only remaining asbestos mines are in Thetford Mines and Asbestos. About 95 per cent of their production is exported. They bring in about $93 million per year and provide 550 to 700 jobs in Quebec.
But the World Health Organization and other agencies say chrysotile use should be halted, because the dust and fibers can enter the lungs and increase the risk of cancer and lung disease.
Dr. Trevor Ogden, a British occupational health expert who was chairperson of the committee, said Health Canada’s statement that it is still reviewing the report “is so obviously untrue as to be insulting. The government clearly has a very low regard for the intelligence of the public.”
Ogden said he suspects the delay is political, as does epidemiologist Leslie Stayner, of the University of Illinois, another member of the Health Canada panel.
Committee members are not allowed to reveal what the report says, but Stayner said the information in the report does not support continued Canadian exports. He said asbestos is widely recognized as a cause of lung cancer, mesothelioma and asbestosis.
Canadian trade delegations and asbestos companies have long argued chrysotile exports pose no danger if the importing countries use the material safely and put in place regulations, programs and practices equivalent to Canada’s.
The Canadian Medical Association Journal doesn’t agree.
“For Canada to pretend that India, Thailand and Indonesia can succeed in managing asbestos safely, when developed countries have failed, is fanciful,” the editorial said.
The Canadian government has poured more than $19 million into the Chrysotile Institute, a Montreal-based group that lobbies for the beleaguered industry.
At best, Canada is guilty of suppressing the results of an expert committee, pouring millions of dollars into a pro-asbestos industry institute and opposing the listing asbestos on the UN watch list.
Topics: Exposure, Facts | No Comments »
N.C. Workplace Safety Attorney Says He Was Forced Out After Reporting Asbestos Threat
By asbestoshub | October 22, 2008
Gilbert Jackson, a former N.C. official, says he was pushed out of his position for reporting asbestos removal inside his own office building.
Mr. Jackson has filed a complaint with the state labor department, alleging he was forced to retire because he reported asbestos violations in the Raleigh building.
Jackson’s former boss at the N.C. Occupational Safety and Health Review Commission contends he was not forced out but left of his own accord.
So who is telling the truth?
Jackson served as general counsel for the commission which hears appeals of OSHA citations. In September 2007, soon after Jackson and his colleagues moved into the 37-year-old office building owned by the N.C. Medical Society, he noticed a worker taking air samples in their office. He was told that asbestos was being removed.
Jackson complained to N.C. OSHA that people working in the building hadn’t been told about the presence of asbestos, as required by law. He also told his boss, commission chairman Oscar Keller, that he had done so.
Weeks later, Jackson said Keller phoned to tell him “he had gotten a call from the governor’s office telling him that I had to back off from the asbestos problems at the Medical Society. When I objected he said that if I didn’t back off, I would ‘have to go. ” — Why, because if this is true, they must have realized the irony of the Occupational Safety and Health Review Commission neglecting to tell its employees about asbestos removal?
The next day, Jackson said, Keller told him he had to attend a meeting with him and the medical society’s CEO. At the meeting, Keller disclosed that Jackson was the one who reported the OSHA violations and asked him to apologize, Jackson said. He contended that violated a law stipulating that the identities of those who report OSHA violations be kept confidential. Jackson said Keller yelled at him and told him not to report any more OSHA violations.
Subsequently, he said, Keller changed his hours, made him report to an administrative assistant who was not an attorney and gave that assistant authority over some legal decisions that were once his responsibility. Jackson said he was forced to take early retirement in April.
Keller disputed that Jackson was pushed out of his job. “All I can tell you is he is the one who resigned to take early retirement,” he said.
He referred other questions to the commission’s current general counsel, who said she could not discuss the complaint because it is still under investigation.
Jackson filed his complaint under North Carolina’s Retaliatory Employment Discrimination Act, which prohibits employers from punishing workers for reporting unsafe working conditions. A Charlotte Observer investigation earlier this year found that few who seek help under the program wind up getting it.
Keller, 87, and the commission’s two other members were appointed by Gov. Easley. Easley’s press secretary, Renee Hoffman, said there’s no indication the governor’s office played any role in Jackson’s departure.
In documents signed when the commission leased the office space, the state said the building must be kept free of hazardous asbestos. But a Medical Society executive checked neither “yes” nor “no” when asked whether the building was asbestos free, according to a copy of the lease proposal.
N.C. OSHA cited the Medical Society for asbestos violations but imposed no fines.
Medical Society CEO Robert Seligson, whose office is in the building, said tests showed the asbestos levels were minuscule, posing no threat to any of the building’s occupants.
The Society never tried to hide the presence of asbestos in the building, Seligson said.
Topics: Exposure | No Comments »
12 Months To Live Turned Out To Be Only 2
By asbestoshub | October 21, 2008
This isn’t a UK blog but the appeal of a widow of a mesothelioma victim deserves to be heard as far and wide as possible.
Wendy Gibbons, 60, of Glass Houghton UK, promised to continue the legal claim against British Coal that her husband started before he died from the crippling lung disease in June aged just 63. Charley Gibbons developed a cough just after Christmas in 2007 and was given 12 months to live in April 2008 when he was diagnosed with mesothelioma.
He only lived for another two months but he had already started to build a claim against his employers after he was exposed to asbestos daily while working at a coking plant in Glass Houghton between 1968 and 1978. Mrs Gibbons is appealing for any of his former colleagues to help in her fight for justice and has had a number of responses this week after appeals on TV.
She told the local paper, Express:
“We had never heard of mesothelioma. His diagnosis was such a shock. He worked with asbestos every day. We didn’t realize what it did. I’m angry because I suppose bosses would have probably known about the dangers but just carried on because it was cheap.
“Charley had worked all his life and was going to enjoy his retirement. Our children were out of the way and we were going to enjoy retirement together. He never even got to retirement age.” Mrs. Gibbons is hoping readers of the Express may come forward with vital information on her husband’s work. She said:
“We just want to find as many people as possible. We have got to try. That’s what my husband told me. “In the end, Charley almost begged to die. He had gone from being a fun-loving, doting husband, father and granddad and died a terrible death, suffered very bravely.
“I have been told that the mesothelioma had spread right around his lung, his diaphragm and his peritoneum and that this would have felt like pouring concrete into your organs and letting it set.
“I’m just glad he isn’t suffering any more and I will fight until my dying breath to see justice done for him.” Mrs Gibbons’ solicitor, Ian Toft at Irwin Mitchell, said: “Even by the time Mr Gibbons was exposed, employers had known for decades about the dangers of asbestos and the need to avoid exposure, yet as we can see from the number of mesothelioma cases across the UK, thousands of workers were still put at risk.”
If anyone has any information about Mr Gibbons’ working history, contact Ian Toft at Irwin Mitchell by email ian.toft@irwinmitchell.com.
Topics: Exposure, Lawsuits | No Comments »
