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Encyclopedia > Asbestos and the law
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This article concerns asbestos-related legal and regulatory issues. Image File history File links Unbalanced_scales. ... Fibrous asbestos on muscovite Asbestos Asbestos Asbestos (a misapplication of Latin: asbestos quicklime from Greek : a, not and sbestos, extinguishable) describes any of a group of minerals that can be fibrous, many of which are metamorphic and are hydrous magnesium silicates. ...

Contents

Background

At the turn of the last 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] Fibrous asbestos on muscovite Asbestos Asbestos Asbestos (a misapplication of Latin: asbestos quicklime from Greek : a, not and sbestos, extinguishable) describes any of a group of minerals that can be fibrous, many of which are metamorphic and are hydrous magnesium silicates. ...


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.[2] They are also sharp and penetrate tissues.


Health problems attributed to asbestos include[3]

  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 of the lungs and the chest cavity, the peritoneum (abdominal cavity) or the pericardium (a sac surrounding the heart). Unlike lung cancer, mesothelioma has no association with smoking.[4] The only known cause is from exposure to asbestos or similar fibers. 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. [9]

Considerable international controversy exists regarding the perceived rights and wrongs associated with litigation on compensation claims related to asbestos exposure and alleged subsequent medical consequences. Some measure of the vast range of views expressed in legal and political circles can perhaps be exemplified by the two quotes below, the first [5] from Prof. Lester Brickman, an American legal ethicist writing in the Pepperdine Law Review, and second, the Honourable Michael Wills [6], British Member of Parliament, speaking in the House of Commons on July 13th. 2006: Asbestosis is a chronic inflammatory medical condition affecting the parenchymal tissue of the lungs. ... In higher vertebrates, the peritoneum is the serous membrane that forms the lining of the abdominal cavity - it covers most of the intra-abdominal organs. ... The pericardium is a double-walled sac that contains the heart and the roots of the great vessels. ... Lester Brickman is a professor at the Benjamin N. Cardozo School of Law and a widely-regarded legal scholar. ... Michael David Wills (born 20 May 1952) is a politician in the United Kingdom. ... A Member of Parliament, or MP, is a representative elected by the voters to a parliament. ...


"A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let along analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation".


"Many of those who I see in my surgeries have worked in a number of workplaces and they could have been exposed to asbestos in each of them, but medical science is such that no one can identify which of them it is. As a result, there has been a long and complex history of legal discussion on how to apportion liability. The lawyers and the judiciary have wrestled, rightly and valiantly, with complex and difficult law, but it has created despair for the families whom we represent. Many of my constituents’ families have been riven by the consequences of litigation in trying to get some compensation for a disease that has been contracted through no fault of theirs. That is cruel and unacceptable".


Regulation and government action

Worldwide, 60 countries (including those in the European Union) have banned the use of asbestos, in whole or in part.[10]. Some examples follow.


Australia

A nationwide ban on importing and using all forms of asbestos took effect on 31 December 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.[11]


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.[12]


Canada

The only asbestos mines still operating in Canada are in the Province of Quebec. They are owned by the Quebec government who expropriated the Asbestos Corporation Limited in 1981 from its American parent, General Dynamics. Quebec is the second largest producer in the world behind Russia and the world's largest exporter of asbestos. Quebec exports 95 percent of its chrysotile production, mostly to Asian and other poor countries.[7] In 1999 the government of Canada went before the World Trade Organization to challenge, unsuccessfully, the ban on asbestos in France.[8] This article describes the Canadian province. ... This article or section does not cite its references or sources. ... Asbestos Corporation Limited (ACL) is a Canadian asbestos mining company. ... General Dynamics (NYSE: GD) is a defense conglomerate formed by mergers and divestitures, and as of 2005 it is the sixth largest defense contractor in the world[1]. The company has changed markedly in the post-Cold War era of defense consolidation. ... Chrysotile Asbestos Chrysotile is an asbestiform sub-group within the serpentine group of minerals. ... World map showing the location of Asia. ... WTO redirects here. ...


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. [13].


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. Fibrous asbestos on muscovite Asbestos Asbestos Asbestos (a misapplication of Latin: asbestos quicklime from Greek : a, not and sbestos, extinguishable) describes any of a group of minerals that can be fibrous, many of which are metamorphic and are hydrous magnesium silicates. ... Lung cancer is a cancer of the lungs characterized by the presence of malignant tumours. ...

  • "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." [14]
  • 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. [15]. (There is currently no scientific consensus as to whether there does indeed exist such a specific threshold ). Epidemiology is the study of factors affecting the health and illness of populations, and serves as the foundation and logic of interventions made in the interest of public health and preventive medicine. ...


United States

The American Bar Association states that a growing number of claimants do 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 X-rays 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.[16] American Bar Associations Washington, DC office The American Bar Association (ABA) is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the 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. [17] 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). [18]


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. [19]


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.[20]


Civil litigation

The first lawsuits against asbestos manufacturers were brought in 1929. [21] 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. [22] 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. [23]


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 the Fortune 500, but was the defendant of 16,500 lawsuits related to the health effects of asbestos. [24] The Fortune 500 is a ranking of the top 500 United States corporations as measured by gross revenue. ...


Johns-Manville was described by Ron 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[25]: Ronald L. Motley is a major American trial attorney whose Mt. ...

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." [26].


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.[27] 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.


The controversy over asbestos-related liability issues is reflected by recent press reports and the position taken by the American Bar Association.


United Kingdom

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.[28] However, insurers claimed the plaques are "simply a marker for asbestos exposure rather than an injury." Mr Justice Holland rejected the insurers' arguments, and counsel for workers hailed the decision as a "victory that puts people before profits." [29]. However this decision was reversed on appeal to the Court of Appeal and the issue is now due to be heard by the House of Lords in 2007. Front page of Guardian Unlimited from August 16, 2005 Guardian Unlimited is a British website owned by the Guardian Media Group. ... The lungs are surrounded by two membranes, the pleurae. ...


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's of London's liabilities, which argued that asbestos claims were "greatest single threat to Lloyd's of London's existence." [30]. Of note is that Lloyd's of London had been sued for fraud by its investors, who claimed Lloyd's misrepresented pending losses from asbestos claims.[31]. This article deals with The Daily Telegraph in Britain, see The Daily Telegraph (Australia) for the Australian publication The Daily Telegraph is a British broadsheet newspaper founded in 1855. ... Lloyd’s Building, London (with the blue cranes). ...


A recent turning point has recently come about involving the case of a young 45 year old mother from Southsea, Hampshire, who was exposed to asbestos from her grandfather’s work clothes and now suffers from mesothelioma. As a result, Michelle Campbell has received over £140,000 in compensation for her pain and suffering from the Ministry of Defence, highlighting that the legacy of asbestos will continue and is now capable of affecting a third generation of victims – the grandchildren of former dockyard workers and other men who worked with the deadly substance throughout their careers. [32].


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. The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... The word docket can mean: Look up docket in Wiktionary, the free dictionary. ... In law, a class action is an equitable procedural device used in litigation for determining the rights of and remedies, if any, for large numbers of people whose cases involve common questions of law and fact. ...


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.[33]


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.[34] 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.[35] The U.S. Senate Committee on the Judiciary (informally Senate Judiciary Committee) is a standing committee of the United States Senate, the upper house of the United States Congress. ...


Scotland

In May, 2006, the House of Lords ruled that compensation for asbestos injuries should be reduced where responsibility could not be attached to a single employer. [36] Critics, including trade unions, asbestos groups and Jim Wallace, former justice minister, have condemned the ruling. They said it overturned the traditional Scottish law to such cases, and was a breach of natural justice.


The Online Battle

Asbestos and specifically Mesothelioma are responsible for the most expensive AdSense keywords as of 2006. [37] With typical case payouts often in the millions of dollars it has become a battleground for SEO with some law firms spending over $50,000USD/month for their AdSense campaigns alone.[citations needed] AdSense is an ad serving program run by Google. ... Search engine optimization (SEO) as a subset of search engine marketing seeks to improve the number and quality of visitors to a web site from natural (organic or algorithmic) search results. ...


Criminal prosecution

United States

W. R. Grace and Company

According to the US Department of Justice(DOJ), a federal grand jury indicted W. R. Grace and Company and seven top executives on Februarly 5, 2005 for its operations of a vermiculite mine in Libby, Montana.[38] 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(EPA) 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.[39][40] The United States Department of Justice (DOJ) is a Cabinet department in the United States government designed to enforce the law and defend the interests of the United States according to the law and to ensure fair and impartial administration of justice for all Americans. ... A grand jury is a type of jury, in the common law legal system, which determines if there is enough evidence for a trial. ... W. R. Grace and Company NYSE: GRA is a conglomerate founded in 1854 by William Russell Grace (1832-1904). ... Libby is a city located in Lincoln County, Montana. ... Official language(s) English Capital Helena Largest city Billings Area  Ranked 4th  - Total 147,165 sq mi (381,156 km²)  - Width 255 miles (410 km)  - Length 630 miles (1,015 km)  - % water 1  - Latitude 44°26N to 49°N  - Longitude 104°2W to 116°2W Population  Ranked... EPA redirects here. ... A Clean Air Act describes one of a number of pieces of legislation relating to the reduction of smog and atmospheric pollution in general. ...


The conspiracy 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.[41]


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. [42]


Environmental - Asbestos Removal and Cleanup

W. R. Grace and Company , which filed bankruptcy in 2001, faces fines of up to $280 million dollars, for polluting the town of Libby, Montana. 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.[43] W. R. Grace and Company NYSE: GRA is a conglomerate founded in 1854 by William Russell Grace (1832-1904). ... Libby is a city located in Lincoln County, Montana. ... Official language(s) English Capital Helena Largest city Billings Area  Ranked 4th  - Total 147,165 sq mi (381,156 km²)  - Width 255 miles (410 km)  - Length 630 miles (1,015 km)  - % water 1  - Latitude 44°26N to 49°N  - Longitude 104°2W to 116°2W Population  Ranked...


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 Organizations 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. [44] A Clean Air Act describes one of a number of pieces of legislation relating to the reduction of smog and atmospheric pollution in general. ... The Racketeer Influenced and Corrupt Organizations Act (commonly referred to as RICO) is a United States federal law which provides for extended penalties for criminal acts performed as part of an ongoing criminal organization. ...


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.[45] The Toxic Substances Control Act (TSCA) is a United States law, passed in 1976, that regulates the introduction of new chemicals. ...


On April 2, 1998, three men were indicted in a conspiracy to use homeless men for illegal asbestos removal from an aging Wisconsin manufacturing plant. Then US Attorney General Janet Reno said, "Knowingly removing asbestos improperly is criminal. Exploiting the homeless to do this work is cruel." Janet Reno (born July 21, 1938) was the 78th Attorney General of the United States (1993–2001), and was the first woman to hold that post. ...


Other similar cases can be found at the DOJ website. [46]


References

  1. ^ [1] Medical News Today. 16 September 2004. Retrieved 15 April 2006.
  2. ^ Casarrett & Doull's Toxicology (2001), pp 520-522
  3. ^ [2][3]. EPA publication on Asbestos. Retrieved 15 April 2006.
  4. ^ Muscat JE, Wynder EL (1991). "Cigarette smoking, asbestos exposure, and malignant mesothelioma". Cancer Research 51 (9): 2263-7. PMID 2015590 [4]. 
  5. ^ [5]Pepperdine Law Review, Vol. 31, No. 33, 2004
  6. ^ [6]Hansard, official verbatim transcript of proceedings in the British Parliament
  7. ^ Article in STLtroday.com (St. Louis Post-Dispatch) [7]
  8. ^ Washington Post article: Canada's Deadly Export [8]

The St. ... ...

Further reading

Brodeur, Paul,Outrageous Misconduct.New York, Pantheon, 1985.


See also

Fibrous asbestos on muscovite Asbestos Asbestos Asbestos (a misapplication of Latin: asbestos quicklime from Greek : a, not and sbestos, extinguishable) describes any of a group of minerals that can be fibrous, many of which are metamorphic and are hydrous magnesium silicates. ... The Asbestos Strike of 1949, based in and around Asbestos, Quebec, Canada, was a four-month labour dispute by the asbestos miners. ... Asbestos Convention, 1986 is an International Labour Organization Convention. ... Asbestosis is a chronic inflammatory medical condition affecting the parenchymal tissue of the lungs. ... Any piece of real estate can be the subject of a Phase I ESA. A Phase I Environmental Site Assessment is a report prepared for a real estate holding which identifies specific environmental contamination liabilities. ...

External links


  Results from FactBites:
 
American Lawyer Media's Law.com (2635 words)
"[Asbestos is] a symbol of the failure of the civil justice system," says Benjamin Heineman Jr., the general counsel of General Electric Co. and a key backer of the asbestos trust fund.
Taking asbestos cases out of the courts, they say, doesn't mean Congress will be called upon every time a drug turns out to have dangerous side effects or the trial lawyers target another deep-pocketed industry.
A year ago a trust fund to end all asbestos litigation was the impossible dream of a few strategic thinkers on the defense side.
  More results at FactBites »

 
 

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