New Study Released Explaining the Asbestos - Mesothelioma Link

"Asbestos carcinogenesis has been linked to the release of cytokines and mutagenic reactive oxygen species (ROS) from inflammatory cells. Asbestos is cytotoxic to human mesothelial cells (HM), which appears counterintuitive for a carcinogen. We show that asbestos-induced HM cell death is a regulated form of necrosis that links to carcinogenesis. Asbestos-exposed HM activate poly(ADP-ribose) polymerase, secrete H2O2, deplete ATP, and translocate high-mobility group box 1 protein (HMGB1) from the nucleus to the cytoplasm, and into the extracellular space. The release of HMGB1 induces macrophages to secrete TNF-α, which protects HM from asbestos-induced cell death and triggers a chronic inflammatory response; both favor HM transformation. In both mice and hamsters injected with asbestos, HMGB1 was specifically detected in the nuclei, cytoplasm, and extracellular space of mesothelial and inflammatory cells around asbestos deposits. TNF-α was coexpressed in the same areas. HMGB1 levels in asbestos-exposed individuals were significantly higher than in nonexposed controls (P < 0.0001). Our findings identify the release of HMGB1 as a critical initial step in the pathogenesis of asbestos-related disease, and provide mechanistic links between asbestos-induced cell death, chronic inflammation, and carcinogenesis. Chemopreventive approaches aimed at inhibiting the chronic inflammatory response, and especially blocking HMGB1, may decrease the risk of malignant mesothelioma among asbestos-exposed cohorts."

"Programmed necrosis induced by asbestos in human mesothelial cells causes high-mobility group box 1 protein release and resultant inflammation" Published online before print June 28, 2010, doi:10.1073/pnas.1006542107 (This item requires a subscription to Proceedings of the National Academy of Sciences).

Click here to read more about asbestos related disease and claims for benefits. 

For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com  has been representing injured workers and their families who have suffered asbestos related illnesses.

Quebec to Resuscitate Its Asbestos Industry

Despite a public outcry and world wide outrage, the Quebec government is now poised to infuse the Province's idle asbestos mining industry with financial support to bring it back to life.  The Montreal Gazette reports that the cabinet of Quebec Premiere Jean Charest's cabinet is about to approve a $58 Million loan to activate the Jeffry Mine in Asbestos, Quebec. The mine has been idle since 2002. Asbestos is a known carcinogen that has been causally linked to lung cancer and mesothelioma, a rare and fatal malignancy. Hundreds of thousands of claims have been filed against the asbestos industry for direct liability. Verdicts continue to be reported in record number in cases filed by asbestos victims and their families. While asbestos use has been banned in many countries, Canada and the United States have yet to ban is use.  Click here to read more about asbestos related disease and claims for benefits. For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com  has been representing injured workers and their families who have suffered asbestos related illnesses.

Asbestos Manufacture Garlock Files for Bankruptcy Protection

Garlock Sealing Technologies LLC, a former manufacturer of asbestos products (The Anchor Packing Company), announced that it has taken a step toward a permanent resolution of asbestos-related personal injury claims against the company. Today, Garlock filed a voluntary petition in the U.S. Bankruptcy Court for the Western District of North Carolina in Charlotte to establish a trust to resolve all current and future asbestos claims against Garlock under Section 524(g) of the U.S. Bankruptcy Code.


Asbestos has been used for insulation properties. It is a known cancer causing agent and responsible for causing asbestosis, lung cancer and mesothelioma.


For the past 35 years Garlock has defended its liability in asbestos claims. Garlock has processed more than 900,000 asbestos claims to conclusion (including judgments, settlements and dismissals) and, together with its insurers, has paid over $1.4 billion in settlements and judgments and over $400 million in fees and expenses.


Garlock manufactured asbestos containing gaskets, pipe joints, values and other equipment.


Garlock will operate in the ordinary course under court protection from asbestos claimants while in the claims resolution process available under Chapter 11. All pending litigation against Garlock will be stayed as the company seeks to develop and implement a court-approved plan to permanently resolve all asbestos-related claims. Garlock plans to negotiate with representatives of asbestos claimants to establish a trust to pay all valid claims. Absent a negotiated resolution, Garlock intends to ask the court to determine the amount necessary to fund the trust.


Click here to read more about asbestos related disease and claims for benefits. For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com  have been representing injured workers and their families who have suffered asbestos related illnesses.

Libby Care Program Begins Enrollment Process

The new Federal healthcare program for those exposed to asbestos in Libby MT has now begun registration of citizens. The new program will provide Medicare benefits to those who were exposed to asbestos, a known carcinogen.


The occupational healthcare program embodied in the recently enacted legislation has the potential for being the most extensive, effective and innovated system ever enacted for delivering medical care to injured workers. The “Libby Care” provisions, and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations, than any other program of the past. Potential pilot programs  will now be available to injured workers and their families who have become victims of the failed workers’ compensation occupational disease medical care system.

Click here to read more about Libby Care.

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$208.8 Million Awarded in California Asbestos Case

A Los Angles jury awarded $208.8 Million in what has been recognized as the largest asbestos verdict ($200 Million punitive damages) in the State of California.  The case involved a household contact exposure to asbestos fiber. The wife of the asbestos worker was exposed to asbestos fiber on the clothes of her husband that he brought home and that she cleaned.

Liability was apportioned 70% against CertainTeed Corp and 30% against the Los Angles Department of Water and Power.

Asbestos is a known carcinogen and knowledge of the relationship of human exposure to asbestos fiber and mesothelioma, a rare malignancy, has been known since the 1920's. Cases for household contact exposure to asbestos fiber are common.

In Paterson NJ the Union Asbestos and Rubber Company Plant (UNARCO) was the subject of a sentinel study by the late Irving J. Selikoff, MD, who found that of the 933 workers who were employed during the war years, over 300 had died by 1976 of asbestos related disease, and that household contact illness and disease was very prevalent.

Click here to read more about asbestos related disease and claims for benefits. For over 3 decades the Law Offices of Jon L. Gelman 1.973.696.7900 jon@gelmans.com  have been representing injured workers and their families who have suffered asbestos related illnesses.

The Health Reform Act Charts a New Course for Occupational Health Care

The occupational healthcare program embodied in the recently enacted legislation has the potential for being the most extensive, effective and innovated system ever enacted for delivering medical care to injured workers. The “Libby Care” provisions, and its envisioned prodigies, will embrace more exposed workers, diseases and geographical locations, than any other program of the past. Potential pilot programs  will now be available to injured workers and their families who have become victims of the failed workers’ compensation occupational disease medical care system.

The legislation initially establishes a program for the identification, monitoring and treatment of those who were exposed to asbestos in Libby Montana where W.R. Grace formerly operated an asbestos (vermiculite) mine producing, among other things, attic insulation. The plant belched thousands of pounds of asbestos fiber into the air of the geographical area daily. Libby Montana has been declared a Federal Superfund Site and the asbestos disease that remains as its legacy has been declared a National Public Health Emergency.

The newly enacted national health care law will have profound effect upon the treatment of occupational disease.  Placed deep within the text of the bill (H.R. 3590), on page 836 (Section 1881A Medical Coverage for Individuals Exposed to Environmental Health Hazards), is the new occupational medical care model, “Libby Care.”  The Manager’s Amendment, embracing the concept of universal occupational health care, inserted in the final moments of the debate, will make all the difference in world to the future of medical care and the handling of work-related illnesses.

What We Learned From History

Historically it is well known that occupational diseases are problematic issues confronting workers’ compensation.They are problematic for all stakeholders in the system. For employers, it is difficult to defend a claim that may occur over a lengthy working period, ie. 280 days per year. Defending occupational disease claims has always been an elusive and a costly goal for employers and insurance carriers. Employees also are confronted with obstacles in obtaining timely medical benefits. Occupational disease claims are universally contested matter and medical care is therefore delayed until the claim is successfully litigated and potentially appealed. This process results in delay and denial of medical care and sometimes death.

In the 1950’s the insurance industry put tag-along verbiage in the statute to modify the 1911 workers’ compensation act to encompass occupational disease claims. This was not a philanthropic gesture, but one rather intended to shield Industry from rapidly spreading silicosis liability in civil actions emerging in the 1950s.

Over time, the failure of the workers’ compensation system to provide adequate medical care to injured workers suffering from occupational illness has given rise to the emergence of several attempted collateral benefit systems by the Federal government. The Black Lung Act-The Federal Coal Mine and Safety Act of 1969 established the Federal Black Lung Trust Fund, which obtained its revenue from the assessment of a percentage tonnage fee imposed on the entire Industry. In October 2000, the Federal government established The Energy Employees Occupational Compensation Program Act that provided a Federal bailout of liability for the monopolistic beryllium industry. The hastily enacted Smallpox Emergency Personnel Protection Act of 2003 (SEPA) shielded pharmaceutical manufacturers from liability.  Following the horrific events of September 11, 2001, the Federal government quickly established The Victims Compensation Fund to compensate the victims and their families through an administrative system.

The largest transfer of economic wealth in the United States from Industry to the private sector, other than in the Attorney General’s thirty-eight State tobacco litigation, emanated from asbestos litigation which had its geneses in workers’ compensation.   The late Irving Selikoff, MD’s pioneering efforts in providing expert testimony, based upon his sentinel studies of asbestos workers in Paterson, NJ, created the trigger mechanism for a massive wave of claims for occupational health care. The program never did adequately nor efficiently or expeditiously provide medical care.

The workers’ compensation system did not provide an adequate remedy because of a constellation of reasons, and subsequently, the wave spread to civil litigation out of desperation for adequate benefits. Asbestos litigation has been named, "The Longest Running Tort” in American history. While the Fairness in Asbestos Resolution Act of 2003, failed to be release from committee, the insurance industry tried to stifle the litigation but the effort failed.  Asbestos litigation expanded into  bankruptcy claims that continue unabated and the epidemic of disease continues. The remaining cases in the Federal court system were transferred to Federal Multi District Litigation (MDL 875) and the majority are finally concluding after twenty years of Panel consolidation. Medical benefits were not a direct component of that system. Unfortunately, asbestos is still not banned in the United States and the legacy of disease continues at historic rates.

The Costs

In a study prepared in 2000 by Dr. Steven Markowitz for a book entitled “Cost of Occupational Injuries  and Illnesses”, it was revealed that the direct medical costs attributed to occupation illness by taxpayers, amount to $51.8 Billion dollars per year for the hospital physicians and pharmaceutical expenses. Overall workers’ compensation is covering 27% percent of the cost. This amounts to 3% of the National Gross National Product. The cost is passed on to: employers, insurance carriers, consumers, injured workers and the taxpayer. Medicare, a target of the cost shifting mechanism employer by Industry, continues its “pay and chase” policy in an effort to seek reimbursement under the Medicare Secondary Payer Act. All the stakeholders and the compensation systems have become increasingly bogged down as cost-shifting continues by Industry. The workers' compensation claims process has become stagnant. 

Reportable Data A Questionable Affair

The quantification of occupational illness data has been very problematic as it is based on sources of questionable reliability. The US Bureau of Labor Statistics (BLS) based its collection on employer driven safety reporting, ieNCCI), keeps its data and procedures under wraps.

Both the NY Times and Nebraska Appleseed have reported that there exists underreporting of occupational disease conditions in epic proportions. They report that the elements of fear and intimidation directed to injured workers compound the defense attitude of employers and the insurance industry resulting in a massive underreporting of occupationally related medical conditions.

Increased Hurtles for Compensability

There have been attempts over the years to integrate more claims statutorily into the workers’ compensation system to shield employers from civil action and resultant large liability verdicts. This resulted in a flood of occupational exposure claims into the workers’ compensation arena. An effort in the mid-1980’s, following the asbestos litigation explosion, was by Industry to contain costs and restrict the payment of occupational disease claims even further in the workers’ compensation.

The initial effort was to create higher threshold standards and requirements in the area of mental stress claims. That was quickly followed by efforts to limit orthopedic and neurological carpal tunnel claims.  Restrictive language interpreting what is peculiar to employment further limited all occupational disease claims.

Furthermore, scientific evidence proof requirements became increasingly difficult to surmount. Daubert type arguments emerged by the defense in the nations’ workers’ compensation forums where simplicity of a remedial and efficient benefit delivery program had existed in the past. Where a biological marker was not present, as was in asbestos exposure claims, the establishment of causal relationship was universally challenged.

Pre-existing and co-existing factors soon became other hurtles for injured workers and their families.  Medical histories of orthopedic difficulties such as back conditions soon complicated repetitive motion trauma litigation. Co-existing and pre-existing smoking habits, family genetics and obesity were yet another obstacle to recovery.

Societal Habits Changed

Life and the way we look at work have changed dramatically with the onset of technology. Off-premises work is becoming more and more common with the advent of Internet access and economic globalization. Defining the barriers between work and pleasure has grown to be exceedingly difficult.

People are working harder and longer. More chronic conditions are prevalent in older workers. Disease increases with age and results in more total disability claims.

Occupational Medical Costs

The compensability of occupational claims is much more difficult to sustain in court. In recent studies over 99.9% of occupational deaths and 93.8% of the medical costs of occupational disease were held to be non-compensable. Over 50% of the lifetime medical costs are incurred during the last year of one’s life.

The Legacy of The Libby Montana Gold Rush

In 1881 gold miners discovered vermiculite, a form of asbestos in Libby, Montana. In 1920 The Zonolite Company was established and began to commercially mine vermiculite. W.R. Grace bought the mining operations in 1963. In 1990 the mine was closed and production ended.

For decades W.R. Grace belched over 5,000 pounds of asbestos into the air in and around Libby on a daily basis. The residents who worked at the plant and their families and household contacts were exposed to asbestos fiber.  Mineworkers brought home the asbestos on their clothing. The unknowing inhabitants and their families  used the asbestos to fill their gardens, their driveways, the high school track, the little league field and in their attics for insulation.

The US Environmental Protection Agency (EPA) visited Libby in 1999 and investigated the incidence of disease and the contamination of the site. The EPA declared Libby a Superfund site in October 2002 and a physical clean-up began of the geographical area. The question of who would pay for the medical care of Libby remained an unknown.

A Manager’s Amendment

Senator Max Baucus (D-MT), Chair of the Senate Finance Committee, utilizing a mechanism known as “A Manager’s Amendment,” at the last moment, modified the Senate’s version of the Health Care Reform Bill. The Patient Protection and Affordable Care Act passed the Senate, ultimate cleared the House and was signed into law by President Obama on March 23, 2010. Section 10323, Medicare Coverage for Individuals Exposed to Environmental Health Hazards, 2009 Cong US HR 3590, 111^th Congress, 1^st Session (December 31, 2009).

Senator Bacus said,  “This provision is important because it will provide vital medical services to American who—through no fault of their own—have suffered horrible effects from their exposure to deadly poisons. It will provide vital medical services we owe these Americans under our commitment in the Superfund Act.”  The amendment initially provides for screening and medical care to residents of the Libby Montana asbestos contaminated site that was owned and operated by W.R. Grace. It essentially provides for universal health care.

“Libby Care” Is The New Occupational Medical Care Model Legislation

The Libby site qualified for the medical program because the hazardous asbestos contaminated site in Libby was deemed to be “a public health emergency” on June 17, 2009 as defined by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). While there are 1700 designated Superfund sites, Libby is the first site in the history of the program that has been designated as “a public health emergency.” The program may be expanded in adopted to other communities at the discretion of the Secretary of of the Department of Health and Human Services (HHS). 

The plan authorizes a grant for initial medical screening purposes. The screening would determine if a medical condition is present that is attributable to the environmental exposure. It allows those individuals with a diagnosed medical condition due to the environmental exposure at the site to get Medicare services. The Secretary of the Department of HHS may establish additional pilot programs to provide additional medical care appropriate for the residents of contaminated communities so designated. The delivery of Medicare medical benefits will be directed to those “who have suffered horrible effects from their exposure to deadly poisons.”

The purpose of the legislation is  “…. to furnish such comprehensive, coordinated and cost-effective care to individuals…..” p2224 l3-1. It mandates the furnishing of “Flexible Benefits and Services,” for items, benefits or services NOT covered or authorized by the Act. It further authorizes the institution of “Innovative Reimbursement Methodologies,” for reimbursement subject to offsets for individuals “eligible to receive public or private plan benefits or legal agreement.” p2226 ll8-11. The Secretary of HHS will maintain “waiver authority.”

Charting A New Course

After a century of struggle, the United States now embarks upon a new course for occupational medical care. The law charts a new path for the delivery of  occupational disease medical benefits on a timely basis. It will permit researchers an avenue for the collection of epidemiological data so that the workplace can be made safer. All will benefit. The innovative legislation provides for a long awaited and much needed initiative to provide an efficient, responsive and coordinated treatment plan and preventive health program that hopefully will expand and will vastly improve occupational health care.

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Exclusivity Doctrine Shields an Employer-Manufacturer From Liability in Mesothelioma Claim

A Federal Judge, who is managing the Multi-District Asbestos Litigation, has ruled that the exclusivity doctrine defeats the application of the dual capacity doctrine where the manufacturer's corporation was merged into the employer's corporation. 


The employee was hired by Hewlett-Packard (HP) in 1966 which merged into Agilent Technologies in 1999. In 1966 the employee, while working for HP, worked on asbestos containing products manufactured by F&M Scientific Company (F&M). F&M was acquired by HP in 1965. The employee ceased work in 2001 and ultimately died of mesothelioma on April 7, 2007.


The court reasoned that dual capacity, while it is an exception to the exclusivity doctrine, is not easily obtained.  The economic reality, the court reasoned, is that both companies were the same corporate entity due to the merger of the businesses. 


The Judge held that, "Workers’ compensation must remain the exclusive remedy for injuries sustained in the course of employment. When a corporate entity is simultaneously an employer and a manufacturer of harmful products, workers’ compensation serves to limit its tort liability with respect to its employees." 


Shamir v. Agilent, et al., MDL 875, Civil Action 08-76816, Decided April 5, 2010.


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NJ Appellate Court Upholds $30.3 Million Mesothelioma Verdict

In an unpublished decision a NJ Court of Appeals upheld a $30.3 Million verdict in an asbestos case where the worker was exposed to asbestos fiber during summer employment during his youth. The court held that the standard of causation in a mesothelioma case permitted recovery where there was infrequent exposure to a small amount of fiber.

History

"Mark Buttitta was born in December 1952. He worked as a “parts picker” at the GM distribution warehouses in Edgewater and Englewood during the summers of 1971 to 1973, and during his winter breaks while matriculating at Colgate University. As a summer employee, Mark was also responsible for sweeping the warehouse floor at the end of the shift. Mark worked with his father, who had been employed by GM since the 1940’s. During the summer of 1971, Mark also worked with Frank Buttitta, Jr. (Frank, Jr.), his brother. 

"In his de bene esse deposition, played for the jury at trial, Mark testified that as a “parts picker,” he, along with fifty to seventy-five other employees, were responsible for filling orders for parts submitted to GM by automobile dealers. The picker would retrieve parts from open racks or bins located at various locations within the “very busy” warehouse and place them in a cart. Some parts were packaged in boxes and some were stored loose on shelves. If the parts were packaged in a box, the parts picker would open the box, check to make sure it contained the correct parts and the required quantity, and then either remove the part or reseal the box for transport to the shipping area. Brakes were packaged in boxes containing four units; to fill an order, a parts picker would often retrieve one set of brakes from a box. 

"Mark said that, on some days, he would pick as many as fifty brake shoes or pads and twenty-five clutch pads or assemblies. Frank Ripley (Ripley), who had worked with Frank, Jr. and Mark at the GM warehouse, confirmed that brakes and clutches, which then contained asbestos, were the most common products picked at the warehouse. 

"Mark, Frank, Jr., and Ripley described the warehouse as being very dusty, with thick layers of dust on the shelves, boxes, and automotive parts, which became airborne when disturbed. The air was “stagnant” and there was visible dust “in the air.” The warehouse had no windows and ventilation was poor. Mark wore street clothes to work; masks and respirators were not provided. He often returned home from work “covered with dust”; Frank said he came home covered in a “gray kind of dirt”; Ripley said that after a day working in the warehouse “you’d blow your nose in a handkerchief and you know there would be dust.” Mark did not see any warnings on the boxes. 

The frequency, regularity and proximity test

"The frequency, regularity and proximity test “’is not a rigid test with an absolute threshold level necessary to support a jury verdict.’” James, supra, 155 N.J. at 302 (quoting Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir. 1992)). “The phraseology should not supply ‘catch words’ [and] the underlying concept should not be lost.” Sholtis, supra, 238 N.J. Super. at 29. Tailoring causation to the facts and circumstances of the case, “[t]he frequency and regularity prongs become less cumbersome when dealing with cases involving diseases, like mesothelioma, which can develop after only minor exposures to asbestos fibers.” Tragarz, supra, 980 F. 2d at 420. Thus, exposure in this case must be considered in relation to the uncontradicted expert testimony establishing that mesothelioma is associated with the “smallest exposure” to asbestos and can develop from the cumulative effects of minimal and infrequent exposure. 

"Here, with regard to the frequency of exposure requirement, Mark worked for three summers and during his winter breaks at the GM warehouse. He was also exposed through his contact with his father who worked at GM. That rather brief work history must be considered in light of the nature of mesothelioma and the experts’ testimony that the disease can be contracted after infrequent exposure to asbestos. This was sufficient to establish the frequency of exposure. See Rotondo v. Keene Corp., 956 F.2d 436, 442 (3d Cir. 1992) (holding that plaintiff, who developed mesothelioma and had worked several months one summer in close proximity to asbestos, satisfied frequency, regularity, and proximity test). 

"Plaintiff presented sufficient evidence to establish that Mark regularly worked in close proximity to asbestos-containing clutches, including those manufactured by Borg-Warner, to permit the issue of causation to go to the jury.

Buttitta v Allied Signal, Inc. et al., DOCKET NO. A-5263-07T1 A-5268-07T1 (NJ App Div) 

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National Asbestos Week: What is Asbestos and Why is it Bad for Our Health?

This week is National Asbestos Awareness Week. To commemorate this event the ADAO is holding its 6th International Asbestos Awareness Conference. The following is a cross-post from that event.

What is Asbestos and Why is it Bad for Our Health?
April 2nd

By Richard Lemen
PhD, MSPH, Assistant Surgeon General, USPHS (Ret.) & Rear Admiral (Ret.)

Asbestos is a commercial term referring to a group of naturally-occurring fibrous minerals. Asbestos has remarkable durability and resistance to heat, properties conferring value in a wide range of products including building and pipe insulation, friction products including brake shoes, and fire-resistant bricks. Asbestos has been woven into fireproof cloth and incorporated into cement pipes used for water transport and into erosion-resistant cement roofing tiles. Unfortunately, asbestos fibers are also inhalable, and once inhaled, cause grave health risk, apparently because of their physical characteristics and bio-persistence in the body. Asbestos exposure causes a wide range of serious and fatal health conditions including pleural changes (plaques, thickening, breathlessness, loss of lung function), asbestosis (scarring of the lungs), cor-pulmonale (right sided heart enlargement and then failure), lung cancer, mesothelioma (cancer of the linings of the lung or abdomen), laryngeal cancer, gastro-intestinal cancers (including stomach, colon, rectal), ovarian cancer, and is suspected of causing kidney cancers.  All asbestos fiber types have been found to cause all major types of asbestos-related disease, including chrysotile, the most commonly used form of asbestos. In reality, most asbestos use involves either intentional mixing of different fiber types or inadvertent contamination of a fairly pure product with small quantities of another (natural contamination). Today world production of asbestos is highest from Brazil, Canada, China, Kazakhstan, Russia, and Zimbabwe. Vast amounts of asbestos are still used in many developing countries where exposure is not limited to just workers, by also non-occupational groups including children. For these reasons and because scientists have not been able to determine a safe level of exposure to asbestos most industrial countries have banned its use. However, this has not been true for Canada or the United States where products can still contain asbestos.*Dr. Lemen is the Retired Assistant Surgeon General who has recently been appointed by President Obama to the Presidential Advisory Board on Radiation and Worker Health. He will present at ADAO’s 6th International Asbestos Awareness Conferenceon April 10th. Click here to read more about asbestos and workers' compensation. Click here to read about asbestos litigation.

Putting a Value on Occupational Cancer Claims

Giving the sick the benefit of the doubt was the mantra the US District Court Judge charged with overseeing the settlement of 911 of the claims of the first responders. The Judge rejected the settlement of $575 several days ago as being inadequate.

The original settlement was crafted by the parties to cover the nearly 10,000 parties to the lawsuit. The Judge recognizes the difficulties in proving cancer claims and the unpredictability of the disease. The original cap offered was $100,000. The Judge said that was inadequate and suggested to the parties to find some method of increasing the benefits.

The 911 first responders were exposed to asbestos and petroleum products that could result in many types of future malignancies, including, lung cancer, mesothelioma and leukemia.

Click here to read more 911 claims.

Asbestos Inspector in NY Admits Faking Tests

In the first criminal prosecution for violating the Toxic Substances Act, a NY inspector admitted in court that he made up hundreds of asbestos and lead tests between 2001 and 2009 and never actually inspected the buildings that he was charged to evaluate.

"EPA has also found that inhalation of asbestos can cause lung disease and cancer, and classified asbestos as a known human carcinogen. New York City has rules and regulations intended to reduce human exposure to asbestos fibers. Among other things, those rules and regulations require that, prior to the commencement of certain demolition and other projects, an inspection be performed by a New York City certified asbestos investigator to determine whether asbestos is present and, if so, how much and what kind, and whether the asbestos will be disturbed during the project. One purpose of the inspection is to determine whether or not the project is to be an "asbestos project" which requires the filing of a notice with the City and an abatement prior to commencement of the project. If the project is determined not to be an asbestos project, New York City rules and regulations require that a certified asbestos investigator complete, sign, and affix his or her asbestos investigator seal to a form captioned "Not an Asbestos Project," known generally as an ACP-5, and file that form with the City prior to issuance of a building permit and commencement of the project. 

"Until approximately February 17, 2004, Todara was a New York City-certified asbestos investigator, which authorized Todaro to inspect buildings for asbestos and to prepare and file -3 ACP-5s. On or about February 17, 2004, however, the City of New York suspended Todaro's asbestos investigator certificate, after which Todaro was prohibited from performing building inspections for asbestos and from preparing and filing ACP-5s in the City of New York. 

"However, despite the suspension of his asbestos investigator certificate, Todaro continued to prepare ACP-5s for filing with the City of New York regarding building projects taking place throughout the city. On numerous occasions, Todaro did so without actually performing an inspection of the premises identified in the ACP-5. In order to make it appear that inspections had actually been performed by a certified asbestos investigator, Todaro prepared backdated ACP-5s that falsely represented that he had performed an asbestos inspection and that he had done so prior to the suspension of his asbestos investigator certificate. Todaro submitted bogus ACP-5s, together with invoices describing the services provided as "Inspect/ACP5," to his customers, at least some of whom billed customers of their own for Todaro’s purported services.  Certain kinds of demolition and renovation activities in buildings can result in the release of asbestos fibers from building components into the air and the contamination of building components with lead-containing dust. Asbestos fibers in the air can be detected through the taking of air samples and laboratory analysis of those samples ("air monitoring"). Lead contamination of building components can be detected through lead clearance testing. 

"On hundreds of occasions, Todaro created and caused to be created false laboratory reports purporting to set forth the results of asbestos air monitoring and lead clearance testing performed at sites in which demolition and renovation activities were occurring or had occurred. Todaro then mailed these bogus reports, along with invoices for payment for his purported services, to customers. Those customers included, among others, management companies, landlords, and contractors. Some of Todaro's customers, in turn, billed customers of their own for Todaro's purported services. Moreover, some of the fraudulent invoices submitted by Tosaro were ultimately paid for under New York City government programs, administered by HPD, through which buildings in New York City were renovated, demolished, or demolished and re-built (the "HPD Programs"). One purpose of the -4 HPD Programs was to increase the stock of affordable housing in New York City.

Special Agent-in-Charge Majorie Franzman stated: "The egregious and reprehensible actions of Mr. Todaro exhibited a complete disregard for the health of unsuspecting residents in New York City. Mr. Todaro also placed at risk those workers who perform demolition and renovation work by exposing them to potentially unsafe levels of lead and asbestos. My office will continue to work closely with our law enforcement partners to hold accountable those who violate OSHA safety regulations and worker safety laws."

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Chubb Permitted to Sue Travelers in Manville Asbestos Claim

The Second Circuit Court of Appeals has held that Chubb was denied its due process in a claim flowing from the Manville bankruptcy that was filed in 1982. In a long and convoluted judicial history, Chubb was seeking reimbursement from Travelers, its insured, for lack of notice of a bankruptcy settlement years before. As a result of that settlement, to which Chubb was not a party, Chubb was sued by a new group of plaintiffs in 2004 as a result of Travelers malfeasance in the asbestos conspiracy.

While denying the asbestos personal injury claimants from seeking recovery, the Court allowed Chubb to proceed with its claim.

"We further hold that Chubb was not adequately represented in the proceedings that lead to the bankruptcy court's approval of the 1984 Insurance Settlement Agreement and the Manville Plan, and that it did not receive adequate notice of the 1986 Orders. Accordingly, both the bankruptcy court and the district court erred by rejecting Chubb's due process argument. Chubb is therefore not bound by the terms of the 1986 Orders. Consequently, it may attack the Orders collaterally as jurisdictionally void. And, as we held in Manville III, that attack is meritorious."

In re Johns-Manville Corp., --- F.3d ----, 2010 WL 1007832, C.A.2 (N.Y.),2010., March 22, 2010

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Making Movies Can Be Hazardous to Your Health

The recent blog about the Mad Hatter's exposure to mercury has drawn much attention. The National Institute of Occupational Safety and Health (NIOSH) has revealed more movies associated with dangerous exposures at work.

Making movies could be a dangerous activity. In 1954 asbestos was dumped onto Bing Crosby by a stage hand above to simulated the appearance of snow while he was singing the theme song from "White Christmas". Asbestos is a known carcinogen, ie. lung cancer and mesothelioma.

NIOSH has posted a blog for readers to vote and comment on the movies with occupational hazards. Visit the NIOSH science blog.

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Possible Vaccine for Mesothelioma

A vaccine has been demonstrated as safe for potential use against mesothelioma. The research, conducted by Netherlands scientists was reported in an advance publication of  the American Journal of Respiratory and Critical Care.


The scientists concluded that, This study demonstrated that autologous tumor lysate-pulsed dendritic cell-based therapy is feasible, well-tolerated, and capable of inducing immunological response to tumor cells in mesothelioma patients."

Mesothelioma is a rare and fatal  malignant tumor associated with asbestos exposure. Asbestos was mined and its fiber used for fire-retartant insulation properties. Asbestos use has resulted in an a legacy of illness and death decades following exposure because of the latent and progressive nature of the disease. Asbestos production is not yet banned in the United States.

Findings indicated that, "Administration of dendritic cells pulsed with autologous tumor lysate in mesothelioma patients was safe with moderate fever as the only side effect.There were no grade 3 or 4 toxicities associated with the vaccines or any evidence of autoimmunity. Local accumulations of infiltrating T cells were found at the site of vaccination. The vaccinations induced distinct immunological responses to KLH, both in vitro and in vivo. Importantly, after three vaccinations, cytotoxic activity against autologous tumor cells was detected in a subgroup of patients."

The Study: J. P Hegmans, J. D. Veltman, M. E Lambers, I. J. M. de Vries, C. G. Figdor, R. W Hendriks, H. C. Hoogsteden, B. N. Lambrecht, and J. G. Aerts , Consolidative Dendritic Cell-Based Immunotherapy Elicits Cytotoxicity Against Malignant Mesothelioma, Am. J. Respir. Crit. Care Med. 2010 0: 200909-1465OCv1-


More articles about this research:
Health Day: Vaccine for Asbestos-Related Cancer Looks Safe. In tests, novel immunotherapy appears to combat mesothelioma tumors.

Science News: Possible Vaccine for Mesothelioma Proven Safe.

Clinical Trials: Dendritic Cell-based Immunotherapy in Mesothelioma

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Asbestos Deaths Predicted to Continue for Decades

The National Institute for Occupational Safety and Health (NIOSH) has released a draft Intelligence Report concerning asbestos and mesothelioma in an effort to create a "road-map for research."

"Asbestos has been a highly visible issue in public health for over three decades. During the mid- to late-20th century, many advances were made in the scientific understanding of worker health effects from exposure to asbestos fibers and other elongate mineral particles (EMPs). It is now well documented that fibers of asbestos minerals, when inhaled, can cause serious diseases in exposed workers. However, many questions and areas of confusion and scientific uncertainty remain. For instance, due to the mineralogical complexity of the asbestos minerals, the scientific literature contains various inconsistencies in the definition and application of the term asbestos for health protection guidance and regulatory purposes."

"The purpose of the Roadmap is to outline a research agenda that will guide the development of specific research programs and projects that will provide a broader and clearer understanding of the important determinants of toxicity for asbestos and other EMPs. NIOSH recognizes that results from such research may impact environmental as well as occupational health policies and practices. Many of the issues that are important in the workplace are also important to communities and to the general population.Therefore, NIOSH envisions that the planning and conduct of the research will be a collaborative effort involving active participation of multiple federal agencies, including the Agency for Toxic Substances and Disease Registry (ATSDR), the Consumer Product Safety Commission (CPSC), the Environmental Protection Agency (EPA), the Mine Safety and Health Administration (MSHA), the National Institute of Environmental Health Sciences (NIEHS), the National Institute of Standards and Technology (NIST), the National Toxicology Program (NTP), the Occupational Safety and Health Administration (OSHA), and the United States Geological Survey (USGS), as well as labor, industry, academia, health and safety practitioners, and other interested parties, including international groups. This collaboration will help to focus the scope of the research, to fund and conduct research, and to develop and disseminate informational materials describing research results and their implications for establishing new occupational and public health policies."

Asbestos Deaths Predicted to Continue for Decades

"NIOSH has annually tracked U.S. asbestosis deaths since 1968 and malignant  mesothelioma deaths since 1999 using death certificate data in the National Occupational  Respiratory Mortality System (NORMS). NORMS data, representing all deaths among  U.S. residents, show that asbestosis deaths increased almost 20-fold from the late 1960s  to the late 1990s (Figure 6) [NIOSH 2007b]. Asbestosis mortality trends are expected to substantially trail trends in asbestos exposures (see Section 2.4.2) for two primary  reasons: (1) the latency period between asbestos exposure and asbestosis onset is 2 typically long, commonly one or two decades or more; and (2) asbestosis is a chronic disease, so affected individuals can live for many years with the disease before succumbing. In fact, asbestosis deaths have apparently plateaued (at nearly 1,500 per year) since 2000 (Figure 3) [NIOSH 2007b]. Ultimately, it is anticipated that the annual  number of asbestosis deaths in the United States will decrease substantially as a result of  documented reductions in exposure. However, asbestos usage has not been completely  eliminated, and asbestos-containing materials remain in place in structural materials and  machinery, so the potential for exposure remains. Thus, asbestosis deaths in the United  States are anticipated to continue to occur for several decades."

Mesothelioma Strongly Linked to Occupational Exposures

"Malignant mesothelioma, an aggressive disease that is nearly always fatal, is known to be  caused by exposure to asbestos and some other mineral fibers [IOM 2006]. The occurrence of mesothelioma has been strongly linked with occupational exposures to asbestos [Bang et al. 2006]. There had been no discrete International Classification of Disease (ICD) code for mesothelioma until its most recent 10th revision. Thus, only seven years of NORMS data are available with a specific ICD code for mesothelioma (Figure 4); during this period, there was a 9% increase in annual mesothelioma deaths, from 2,484 in 1999 to 2,704 in 2005 [NIOSH 2007b]. A later peak for mesothelioma deaths than for asbestosis deaths would be entirely expected, given the longer latency for mesothelioma [Järvholm et al. 1999]. One analysis of malignant mesothelioma incidence based on the National Cancer Institute's Surveillance, Epidemiology, and End Results (SEER) Program data found that an earlier steep increase in incidence had moderated and 1 that mesothelioma incidence may have actually peaked sometime in the 1990s in SEER-2 covered areas [Weill et al. 2004]. In contrast to NORMS data, which represents a census 3 of all deaths in the entire United States, the analyzed SEER data were from areas in 4 which a total of only about 15% of the U.S. population resides."

NIOSH  has invited Public Comment Until April 16, 2010 5:00pm EDT

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Senators Call for Toxic Substances Act Update

The New York Times today reports that Senator Frank Lautenberg (D-NJ.) is anticipated to introduce new legislation to modernize The Toxic Control Substances Act (TSCA) originally enacted in 1976. 


"There's no question that chemicals are essential to our modern lives ... but when we use these products, the chemicals in them can end up in our bodies," Lautenberg said. "And when the chemicals used in flame retardants, plastics or rocket fuel show up in our children's bodies, we have a potentially dangerous situation."


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Zurich May Face a Surge in European Asbestos Claims

It has been reported that Zurich Insurance in Britain may be facing a huge increase in asbestos disease claims.The British House of Lords may act on legislation permitting recovery for asbestos disease claims where there is evidence of scarring called pleural plaque.


Bloomberg News reported, “There could be a material deterioration in prior year profitability,” said David Masters, a London-based credit analyst at Moody’s. “There remains a risk that pleural plaques claims costs could spiral over time.”


The century old workers compensation programs have become stagnated in processing occupational claims. Huge delays in compensating victims of asbestos disease in Britain have been reported. This mirrors what is occurring in the US. Workers' Compensation systems that have also been dilatory in with the disposition of these claims for numerous reasons.


Rating agencies have indicated that costs for asbestos related disease through Europe may have significant impact upon the reserves of insurance carriers including large one like Zurich.


Asbestos exposure is a cause of latent and fatal diseases such as asbestosis, lung cancer and mesothelioma. 


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Malignant Pleural Mesothelioma and Occupational Exposure to Asbestos

A strong relationship has been reported between industrial uses of all forms of asbestos is generating an increase in mesothelioma-related diseases and deaths among Mexican workers.

"Environmental and occupational exposure to asbestos in Mexico in the past has been a cause of deaths and health damages. Its magnitude is unknown to date. Our objective was to identify the proportion of cases of malignant pleural mesothelioma (MPM) that can be attributed to and occupational exposure to asbestos."

"As a public health policy, Mexico should the use of asbestos in all production processes with the aim of controlling the epidemic and preventing the occurrence of new cases of MPM."

"Case-control study of pleural mesothelioma in workers with social security in Mexico", Am. J. Ind. Med. , Jan. 28,2010.

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Secretary at Former Asbestos Plant Awarded $17.87 Million

A former secretary at an Illinois asbestos plant, Union Asbestos and Rubber Company (UNARCO) was awarded $17.87 Million as a result of contracting an asbestos related disease, mesothelioma. The woman was employed from 1967 to 1969 at UNARCO as a secretary.

The lawsuit alleged that Pneumo Abex LLC and Honeywell International Inc. and their corporate predecessors knew of the dangers of asbestos and failed to warn their employees and customers of the hazards.

UNARCO also operated an asbestos plant in Paterson NJ from 1942 through November, 1954. It produced asbestos pipe covering and textile material for US Navy ships and and others. The Paterson NJ group of workers, and their families, became the cohort group for sentinel studies conducted by the late Irving J. Selikoff, MD (1915-1992), who linked asbestos exposure to various disease including: asbestosis, lung cancer and mesothelioma. Those studies ultimately lead to a world renown conference in 1964 sponsored by The New York Academy of Sciences.

Asbestos is still mined in Canada. The use of asbestos in the United States has yet to be banned in the United States.

Disease caused by asbestos has resulted in an epidemic of disease and resulting massive amounts of workers' compensation occupational exposure claims and civil actions. Asbestos litigation has been deemed "The Longest Running Tort in American History."

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The Saga of Asbestos in LIbby Montana

The plight of the workers of Libby Montana may have been highlighted by efforts of Senator Harry Reid in the recent Senate Health Care Reform legislation, but it goes historically much deeper. While the hazardous of asbestos may have been studied for over a hundred years, it wasn't until a newspaper article 1999 did horrors of Libby become nationally recognized.

A a recent lecture Aubrey Miller, M.D. spoke on the plight of Libby and its people. An environmental epidemiologist and a captain in the U.S. Public Health Service board-certified in occupational medicine, Miller currently serves as the chief medical officer in the U.S. Food and Drug Administration (FDA) Office of the Commissioner's Office of Counterterrorism and Emerging Threats. Previously, he worked for the U.S. Environmental Protection Agency (EPA) and for the U.S. Department of Health and Human Services (DHHS) as a regional health administrator, coordinating multi-agency emergency responses, such as the Libby situation.

"It's the worst site in EPA history in terms of human health......Even though asbestos has been studied for 100 years," he added, "the science and regulations were developed from worker studies for workplace settings and thus were not very useful for environmental situations and non-worker exposures."

Eddy Ball, a reporter covering the Miller's lecture to a capacity audience concluded, "Politics and financial interests further complicate the regulation of such environmental hazards as Libby's. For instance, there was ample evidence accruing for many years that environmental asbestos contamination was hazardous and that the Libby situation was 'a predictable surprise.' Based on his experiences Miller is convinced that 'there must be other Libbys occurring under our noses' in the U.S. Miller stated we need to challenge dogma and preconceptions about environmental exposures and who is at risk in order to identify disease and provide honest and useful solutions for our communities."

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