Asbestos and the law

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Background

At the turn of the century, asbestos was considered an ideal building material. It was an excellent fire retardant, had high electrical resistivity and was inexpensive and easy to use.[1] More than 25 million tons of asbestos were used in the construction of factories, offices, schools, shipyards and homes, mostly after World War II. In addition, asbestos was used for brake linings,cement, paint and textiles.[2]

The problem with asbestos arises when the fibers become airborne and are inhaled. Because of the size of the fibers, the lungs cannot expel them. Health problems attributed to asbestos include[3][4]:
1. Asbestosis - A lung disease first found in naval shipyard workers, asbestosis is a scarring of the lung tissue from an acid produced by the body's attempt to dissolve the fibers. The scarring may eventually become so severe that the lungs can no longer function. The latency period ( meaning the time it takes for the disease to develop) is often 10-20 years.
2. Mesothelioma - A cancer of the mesothelial lining (pleura) of the lung. The only known cause is from asbestos exposure. The latency period for mesothelioma may be 20-50 years. The prognosis for mesothelioma is grim, with most patients dying within 12 months of diagnosis.
3. Cancer - Cancer of the lung, gastrointestinal tract, kidney and larynx have been linked to asbestos. The latency period for cancer is often 15-30 years. [5]

Regulation and government action

Worldwide, 60 countries (including those in the European Union) have banned the use of asbestos, in whole or in part.[6]. Some examples follow.

Australia

A nationwide ban on importing and using all forms of asbestos took effect on December 31, 2003. Reflecting the ban, the National Occupational Health and Safety Commission (NOHSC) revised asbestos-related material to promote a consistent approach to controlling exposure to workplace asbestos and to introduce best-practice health and safety measures for asbestos management, control and removal. The ban does not cover asbestos materials or products already in use at the time the ban was implemented.[7]

Although Australia has only a third of the UK's population, its asbestos disease fatalities approximate Britain's of more than 3,000 people per year.[8]

France

France banned the use of asbestos in 1997, and the WTO upheld France's right to the ban in 2000. In addition, France has called for a world-wide ban. [9].

United Kingdom

The British Government's Health and Safety Executive (HSE) has promoted rigorous controls on asbestos handling, based on reports linking exposure to asbestos dust or fibres with thousands of annual deaths from mesothelioma and asbestos-related lung cancer.

  • "At least 3500 people in Great Britain die each year from mesothelioma and asbestos related lung cancer as a result of past exposure to asbestos. Annual numbers of deaths are predicted to go on rising into the next decade." [10]
  • The TUC (UK) report cites a figure of 5000 deaths per year. TUC (UK)

The HSE does not assume that any minimum threshold exists for exposure to asbestos below which a person is at zero risk of developing mesothelioma, since they consider that it cannot currently be quantified for practical purposes; they cite evidence from epidemiological studies of asbestos exposed groups to argue that even if any such threshold for mesothelioma does exist, it must be at a very low level. [11]. (There is currently no scientific consensus as to whether there does indeed exist such a specific threshold ).

United States

In the United States, 10,000 people a year die from asbestos-caused diseases, including one out of every 125 American men who die over the age of 50. [12] The Environmental Protection Agency (EPA) has no general ban on the use of asbestos. However, asbestos was one of the first hazardous air pollutants regulated under Section 112 of the Clean Air Act of 1970, and many applications have been forbidden by the Toxic Substances Control Act (TSCA). [13]

According to a September 2004 of the American Journal of Respiratory and Critical Care Medicine, asbestos is still a hazard for 1.3 million US workers in the construction industry and for workers involved in the maintenance of buildings and equipment. [14]

A Senate Subcommittee of the Health Education Labor and Pensions Committee heard testimony on July 31, 2001, regarding the health effects of asbestos. Members of the public, doctors, and scientists called for the United States to join other countries in a ban on the product.[15]

Civil Litigation

The first lawsuits against asbestos manufacturers were brought in 1929. [16] Since then, many lawsuits have been filed. As a result of the litigation, manufacturers sold off subsidiaries, diversified, produced asbestos substitutes, and started asbestos removal businesses.[17] In June 1982, a retired boiler-maker, James Cavett, won a record award of $2.3 million compensatory and $1.5 million in punitive damages. [18]

The Manville Corporation, formerly the Johns-Manville Corporation, filed for reorganization and protection under the United States Bankruptcy Code in August 1982. At the time, it was the largest company ever to file bankruptcy, and was one of the richest. Manville was then 181st on Fortune's list of the US top 500 industrial corporations, but was the defendant of 16,500 lawsuits related to the health effects of asbestos. [19]

Johns-Manville was described by Ronald Motley, a South Carolina attorney, as "the greatest corporate mass murderer in history." Court documents show that the corporation had a long history of hiding evidence of the ill effects of asbestos from its workers and the public. One of many examples is a memo from Johns-Manville's medical director to corporate headquarters[20] :

The fibrosis of this disease is irreversible and permanent so that eventually compensation will be paid to each of these men. But, as long as the man is not disabled it is felt that he should not be told of his condition so that he can live and work in peace and the company can benefit by his many years of experience.

Other important US asbestos lawsuits included Bell v. Dresser Industries Inc., Borel v. Fibreboard Corporation, and Waters v. W. R. Grace. More information on these and other, asbestos-related issues in the USA are reviewed on the Asbestos Resouce Center website.

By the early 1990s, "more than half of the 25 largest asbestos manufacturers in the US, including Amatex, Carey-Canada, Celotex, Eagle-Picher Industries, Forty-Eight Insulations, Manville Corporation, National Gypsum, Standard Insulation, Unarco, and UNR Industries had declared bankruptcy. Filing for bankruptcy protects a company from its creditors." [21].

The future of asbestos civil litigation

Asbestos litigation is the longest, most expensive mass tort in U.S. history, involving more than 6,000 defendants and 600,000 claimants.[22] Current trends indicate that the rate at which people are diagnosed with the disease will likely increase though the next decade. Analysts have estimated that the total costs of asbestos litigation in the USA alone will eventually reach $200 billion. The amounts and method of allocating compensation have been the source of many court cases, and government attempts at resolution of existing and future cases.

Industry and insurance companies have long attacked asbestos litigation as a cause célèbre for tort reform. The controversy over asbestos-related liability issues is reflected by recent press reports and the position taken by the American Bar Association:

Guardian Unlimited reported a test-case ruling in 2005, that allowed thousands of workers to be compensated for pleural plaques. Diffuse or localised fibrosis of the pleura, or pleural plaques, is less serious than asbestosis or mesothelioma, but is also considered a disease closely linked to the inhalation of asbestos.[23] However,insurers claimed the plaques are "simply a marker for asbestos exposure rather than an injury." Justice Holland rejected the insurers' arguments, and counsel for workers hailed the decision as a "victory that puts people before profits." [24]

Insurance companies allege that asbestos litigation has taken too heavy a toll on insurance and industry. A 2002 article in the British Daily Telegraph's Associate quoted Equitas, the reinsurance vehicle which assumed Lloyd of London's liabilities, which argued that asbestos claims were "greatest single threat to Lloyd's of London's existence." [25]. Of note is that Lloyds of London had been sued for fraud by its investors, who claimed Lloyd's misrepresented pending losses from asbestos claims.[26].

The American Bar Association states that a growing number of claimants are not, and may never, suffer from asbestos illness. Because of the fear of a running statute of limitations, many people file claims who are not presently ill, but have had xrays that show changes 'consistent with' asbestos disease. This 'now or never filing' is clogging the courts and delaying seriously ill claimants from having their cases heard. To alleviate this problem, the ABA recommends that (1) a clear standard of impairment be implemented, and (2) the statute of limitations not start ticking until a person actually becomes ill.[27]

United States

Asbestos-related cases increased significantly on the U.S. Supreme Court docket after 1980. The Court has dealt with several asbestos-related cases since 1986. Two large class action settlements, designed to limit liability, came before the Court in 1997 and 1999. Both settlements were ultimately rejected by the Court because they would exclude future claimants, or those who later developed asbestos-related illnesses. See Amchem Products v. Windsor et al and Ortiz v. Fireboard Corp.These rulings addressed the 20-50 year latency period of serious asbestos-related illnesses.

Congress is still considering legislation from 2005 entitled the "Fairness in Asbestos Injury Resolution Act of 2005". The Act would establish a $140 billion trust fund to supplant litigation as a means to compensate victims of asbestos and limit liability. On April 26, 2005, Dr. Philip Landrigan, Professor of Occupational and Environmental Medicine and Chairman of the Department of Community and Preventive Medicine at Mount SInai School of Medicine, testified before the US Senate Committee on the Judiciary against this proposed legislation. He testified that many of the bill's provisions are unsupported by medicine and would unfairly exclude a large number of people who have become ill or died from asbestos: "The approach to the diagnosis of disease caused by asbestos that is set forth in this bill is not consistent with the diagnostic criteria established by the American Thoracic Society. If the bill is to deliver on its promise of fairness, these criteria will need to be revised." Also opposing the bill are the American Public Health Association and the Asbestos Workers Union.[28]

On June 14, 2006, the Senate Judiciary Committee Committee approved an amendment to the Act which would allow victims of mesothelioma $1.1M within 30 days of their claim's approval.[29] This version would also expand eligible claimants to people exposed to asbestos from the September 11, 2001 attacks on the World Trade Center, and to construction debris in Hurricanes Katrina and Rita.[30]

Criminal Prosecution

W.R. Grace According to the United States Department of Justice, a federal grand jury indicted W.R. Grace and seven top executives on February 5, 2005 for its operations of a vermiculite mine in Libby, Montana.[31] The indictment accused Grace of wire fraud, knowing endangerment of residents by concealing air monitoring results, obstruction of justice by interfering with an Environmental Protection Agency investigation, violation of the Clean Air Act, providing asbestos materials to schools and local residents, and conspiracy to release asbestos and cover up health problems from asbestos contamination. The DOJ said 1,200 residents have developed asbestos-related diseases and some have died, and there could be many more injuries and deaths.[32][33]

The conpsiracy charges alone could result in a sentence of five years in prison, a $250,000 fine and three years of supervised release, as well as a $1 million fine per violation by the company.[34]

On June 8, 2006, a federal judge dismissed the conspiracy charge of "knowing endangerment" because some of the defendant officials had left the company before the 5 year statute of limitations had begun to run. The wire fraud charge was dropped by prosecutors in March. However, the company still faces the other charges. The trial is scheduled to start September 11, 2006. [35]

Environmental - Asbestos Removal and Cleanup

W.R. Grace, which filed bankruptcy in 2001, faces fines of up to $280 million dollars, for polluting the town of Libby, Motana. Libby was declared a Superfund disaster area in 2002, and the EPA has spent $54 million dollars in cleanup. Grace was ordered by a court to reimburse the EPA for cleanup costs, but the bankruptcy court must approve any payments.[36]

Asbestos abatement (removal of asbestos) has become a thriving industry in the United States. Strict removal and disposal laws have been enacted to protect the public from airborne asbestos. The Clean Air Act requires that asbestos be wetted during removal and strictly contained, and that workers wear safety gear and masks. Over the last ten years, the federal government has prosecuted dozens of violations of the Act and violations of Racketeer Influenced and Corrupt Organization Act(RICO) related to the operations. Often these involve contractors who hire undocumented workers without proper training or protection to illegally remove asbestos. Contractors who ignore safety regulations in removing asbestos commit an environmental crime that exposes countless people to potentially fatal and excruciatingly painful lung diseases. [37]

On January 11, 2006, San Diego Gas & Electric Co., two of its employees and a contractor were indicted by a federal grand jury on charges that they violated safety standards while removing asbestos from pipes in Lemon Grove, California. The defendants were charged with five charges of conspiracy, violating asbestos work practice standards and making false statements. If convicted the workers face five-year prison terms and a $250,000 fine for each violation. San Diego Gas & Electric faces fines of $2.5 million dollars.

On December 12, 2004, New York father and son owners of asbestos abatement companies were sentenced to the longest federal jail sentences for environmental crimes in U.S. history. The crimes related to a 10 year scheme to illegally remove asbestos. They were convicted on all 18 counts of conspiracy to violate the Clean Air Act and the Toxic Substances Control Act; violations of the Clean Air Act, and RICO. The RICO count included obstruction of justice, money laundering, mail fraud and bid rigging, all related to the asbestos cleanup. The son was sentenced to 25 years in prison, forfeiture of $2 million in illegal proceeds from RICO activities and restitution of $23,039,607 to his victims. His father was sentenced to 17-1/2 years in prison, forfeiture of $1.7 million in illegal proceeds and restitution of $22, 875,575 to his victims.[38]

On April 2, 1998, three men were indicted in a conspiracy to use homeless men for illegal asbestos removal from an aging WIsconson manufacturing plant. Then US Attorney General Janet Reno saId, "Knowingly removing asbestos improperly is criminal. Exploiting the homeless to do this work is cruel."

Other similar cases can be found at the DOJ website. [39]

See also

External links


This article incorporates material from the Wikipedia article "Asbestos and the law". The list of authors can be found here.

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