Mesothelioma Lawyers Blog

A Massachusetts heating and cooling contractor is accused of improperly removing asbestos from a single-family rental unit – against state law – and then bullying the tenant into silence.

Our Boston mesothelioma lawyers couldn’t be more appalled by these allegations, considering the harm to which the contractor reportedly exposed the tenant by his negligent and quite possibly criminal actions.

The reality is that Boston, like many large, older cities in the country, is riddled with asbestos is its schools, government buildings, businesses and even homes. It’s almost inescapable in a structure built in the first half of the 20th Century, given its pervasiveness in products from insulation to tiling to drywall to bonding agents – the list goes on and on. Both the federal and state government are well aware of this, as well as the dangers posed by the presence of these products if they are disturbed. That’s why there are very strict laws about how renovations and demolitions of asbestos-laden structures must be carried out.

At the federal level, the National Emission Standards for Hazardous Air Pollutants for Asbestos, under Section 112 of the Clean Air Act, establishes the safe work practices required to minimize the release of asbestos fibers during projects that involve asbestos-laden structures. Massachusetts has its own laws regarding safe practices as well, which require workers to notify the state when asbestos removal is going to occur and to strictly follow a set of protocol regarding the removal, storage and disposal of the material.

Violators can be sanctioned with criminal charges, prison time and hefty fines.

In this case, the 42-year-old contractor is being criminally charged by the state with two counts of violation of the state’s Clean Air Act for his failure to file notice of asbestos removal with the Massachusetts Department of Environmental Protection. He also failed to prevent asbestos emissions, prosecutors say. Additionally, he’s charged with one count of intimidating a witness.

The property owner is also facing two counts of violation of the state’s Clean Air Act.

Both men have pleaded not guilty, according to the state attorney general’s office.

The property owner is accused of hiring the contractor, who was not licensed in asbestos removal, to replace a boiler inside a rental home where a family with a number of children resided. While the contractor was conducting the work, he failed to seal off the basement. The heating pipe insulation contained asbestos, which was dangerous not only for the contractor but for the unsuspecting family living there as well.

Neither the homeowner nor the contractor took measures to inform state or federal officials that asbestos removal work would be taking place.

Exacerbating the situation was the fact that when the contractor learned he could be facing criminal charges, he went to the home and threatened one of the tenants -a parent to the small children – warning them not to testify against him. This is why he is facing an additional charge.
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The state supreme court in California has agreed to take on review of a case regarding whether a raw asbestos supplier can be found liable for failure to warn users about the dangers of products containing asbestos.

Our Boston mesothelioma lawyers know that suppliers of raw asbestos would almost certainly have known about the dangers of the material, as industry insiders had been aware of problems dating back to the beginning of the 20th Century. The question is whether the supplier of the raw material should be held liable for the damages caused by products made from that material.

The case stems from a mesothelioma diagnosis received from a man who was previously employed by a pipe and supply firm just outside of Los Angeles. Evidence he presented at trial found that from the late 1960s through the late 1970s, he regularly handled water-heater venting pipe products made from a Long Beach manufacturer that received crocidolite asbestos, sometimes referred to as “blue asbestos,” primarily from Special Electric.

Estimates were that from 1974 through 1980, the defendant in this case supplied some 7,000 tons of crocidolite asbestos to the Long Beach manufacturer. Asbestos wasn’t a named ingredient in the Long Beach manufacturer’s pipe products, but there was enough evidence that the company used scrapped pipe containing asbestos in the mix to make its new pipes.

The plaintiff alleged that he was completely unaware of the dangers he was facing each day when he went to work. He further alleged that Special Electric failed to inform both him and his employer of its knowledge that asbestos was a material known to cause foreseeable risks of injury and death.

The trial court jury in Webb v. Special Electric Co., Inc. found in February 2011 that while Special Electric did not design the product it was selling with any type of defect, it failed to adequately warn one of its end users of the risk. This negligence, the jury determined, was a substantial factor in the plaintiff’s harm, and subsequently awarded him $5 million. However, Special Electric was held responsible for just 18 percent of that award, or about $900,000.

However, an appellate court ruled in March that the trial court had erred in its handling of pretrial motions, and that the jury’s decision was unjustified on its merits. Specifically, the court determined that although it would have been relatively easy for the Long Beach supplier to issue danger warnings to users, such as the plaintiff, it would have been “unreasonable” to expect that Special Electric would require its Long Beach customer to do this. What’s more, the court found, the bags in which the asbestos was transported to the Long Beach firm did contain warnings that the court believed were sufficient to satisfy its requirement.

Now, the California Supreme Court has agreed to take on the question of supplier responsibility.

The decision will technically only have a direct impact on asbestos litigation in California, but the decision could serve as a guide to other courts nationwide, expanding its potential influence.
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An Atlanta-based paper manufacturer, Georgia-Pacific, has been ordered by appellate judges in New York to hand over internal documents relating to research it commissioned regarding the safety of its products.

The justices say the company, which is a defendant in ongoing asbestos liability litigation, needs to submit the documents for a judicial review to determine whether those records could be subject to the crime-fraud exception to attorney-client privilege.

Our Boston mesothelioma lawyers understand the decision was an anonymous one for the panel ruling in the case of Weitz & Luxenberg v. Georgia Pacific, and that the judges also demanded the firm give up the raw data used to complete those studies.

What the company had been trying to do was to uphold those studies as evidence that their products had not been harmful. Of course, the objectivity of those studies is highly questionable considering Georgia-Pacific had paid for them to be conducted. The judges ruled that they would need to review the data themselves before determining whether the research could be used as evidence to support the company’s case.

The opinion directly affects all claims brought against Georgia-Pacific by one law firm in New York, and it affirms an earlier order decreed by the Manhattan Supreme Court in late 2011. The ultimate findings of the appellate panel could influence claims against Georgia-Pacific in other jurisdictions as well.

Georgia-Pacific, with some 300 manufacturing plants across the globe, is one of the world’s largest producers of paper, tissue, pulp and building products. It’s wildly popular brand names include Quilted Northern and Angel Soft toilet paper, Dixie paper products and Brawny paper towels. What you might not realize is that the firm was also responsible for the production of a sizable line of building materials and certain chemicals.

Back in the mid-1960s, the firm acquired a company called Bestwall Gypsum, which made drywall, plaster and fertilizer out of gypsum and also, commonly for the time, asbestos. The use of asbestos in the firm’s products continued for at least a decade after Georgia-Pacific bought the firm. It’s been widely argued by asbestos plaintiffs that Georgia-Pacific executives were well aware of asbestos dangers when they bought Bestwall Gypsum, but continued to use it in those products anyway.

The studies in question, commissioned by the firm in 2005, were intended to test the harmful effects of a no-longer-produced joint compound product that contained asbestos. Most of the studies were co-authored by the company’s director of toxicology and chemical management. Even the research that wasn’t co-authored by that director was reportedly heavily influenced by him and each of the studies was reviewed by the company’s legal team before they were released.

But the studies failed to disclose the involvement of Georgia-Pacific in any of it, upholding itself as independent research – even going so far as to falsely claim the company had no part in it.

Now, asbestos litigation plaintiffs want the company to release the internal communications and all the raw data used to formulate those studies. Georgia-Pacific has refused, calling the records “privileged.”

In the summer of 2011, a special master ordered the records turned over for a judicial review to determine whether the records were a crime-fraud exception. Such an exception would be found if judicial services were used to commit crime or a fraud. The earlier Manhattan Supreme Court judge found that the company’s undisclosed involvement in the research constitutes a sufficient basis for a claim of fraud.
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Debbie Brewer loved her father.

Every night, when he returned home in Great Britain from his job at the Royal Navy dockyard, she would cuddle up next to him, breathing in the asbestos dust that covered his work uniform, which he would change out of after greeting his family each evening.

Now, our Boston mesothelioma lawyers have learned, Brewer has died at the age of 53, a loving mother herself. Those childhood hugs with her dad are believed to have been the cause.

While we typically think of asbestos litigation as concerning only those who worked directly with the deadly fibers, we now know just how dangerous that dust was to the immediate family members of those workers as well. It’s a testament to how dangerous the material truly is. These are people who weren’t necessarily hauling mounds of it over the course of years. But they were washing their spouse’s clothing. They were cleaning the tracked in dust from up off the floors. They were embracing their loved ones after hard days work.

Terminal illness and death is the price they are paying.

In Brewer’s case, her father died at the age of 68, also of asbestos-related lung cancer. Brewer died much younger because her exposure occurred much earlier in life. She was diagnosed the same year her father died.

The disease can lie dormant for decades before symptoms emerge allowing doctors to make a diagnosis. The prognosis is poor, with most patients given just a few years to live. Brewer, amazingly, survived seven years with the disease, most likely because of her early diagnosis and treatment.

A number of scientific journal articles examine the effects of parental asbestos work on children, and the consensus so far is that youth were unquestionably at risk by parents who returned home in their work clothing directly after their shifts.

Research in the 1960s indicated that wives were often placed at risk when they laundered the asbestos dust-covered clothing of their spouses. A 1971 study conducted by the National Institute for Occupational Safety and Health found that all family members could be placed at risk if the asbestos-laden work clothing was washed with other articles of clothing. Those fibers could then stick to the children’s clothes, and thus cause them to suffer asbestos-related illness later in life as well.

That’s part of the reason why we’re seeing younger and younger asbestos victims filing claims.

Another example of this is a 47-year-old woman from Australia, who was exposed to the “devil’s dust” as a child while watching her father cut asbestos cement sheeting in the family garage. She inhaled puffs of the dust, and received a mesothelioma diagnosis at age 45. Neither her father nor siblings have thus far developed the disease. She, however, has been given a few years to live – and that is with aggressive treatments and therapies.

An untimely death due to mesothelioma is tragic at any age. But for those who are dying so young, exposed as innocent children, by parents who no doubt would have taken every precaution against it if they’d known, is all the more unjust.

We are committed to working closely with these individuals and their families to fight for compensation.
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Dr. Bill McQueen’s hands had healed many in his extensive career as a renowned ear, nose and throat surgeon.

But for all his skill, experience and education, he could not save himself against the most formidable medical enemy he ever faced: Mesothelioma.

Our mesothelioma lawyers understand the Texas doctor died earlier this year, two years after his diagnosis, following a whirlwind of aggressive treatments and the initiation of litigation that is now being carried on by his widow, only in her early 60s.

McQueen’s case, chronicled recently by The Wall Street Journal, serves to shatter the misconception that mesothelioma affects only blue collar shipyard workers, mechanics and other tradesmen.

In fact, the surgeon never worked in any of those fields. He did, however, work closely with his father in the family greenhouse as a teenager. He also helped extensively with home improvement projects around the house with his dad. Unbeknownst to father and son, many of the products they used to complete their various chores were laden with asbestos. Exposure to these fibers is the only known cause of mesothelioma, which lies dormant for decades before revealing itself in a terminal diagnosis.

In terms of litigation, these cases can present more challenges than those brought by tradesmen who worked in industries known to have extensively used tools and products manufactured with the deadly substance. In the latter, the point or points of exposure may be easily identifiable. Plaintiffs can clearly say, “I worked at XYZ manufacturing plant between this year and that year, and the products used during the course of my duties contained asbestos fibers, for which I was neither warned nor protected.”

But it’s tougher when the exposure occurred during a home improvement project. You might remember a major kitchen renovation 40 years ago. But you wouldn’t likely have the receipts to prove that the flooring or the roofing or the plumbing or the insulation was a brand that was later found to have contained asbestos. That’s if you even remember the brands used at all. It gets even tougher if the exposure was a result of minor, incremental projects, as alleged here. Asbestos was contained in products as inane as caulking materials, adhesives and various mastics.

A recent study by an economic consultant analyzing the asbestos litigation filings of a court in Philadelphia discovered that nearly 50 percent of the asbestos injury claims made between 2006 and 2010 were filed by plaintiffs who cited exposures from do-it-yourself construction or mechanical products. Prior to 2000, these plaintiffs made up just 3 percent of the total.

Anyone diagnosed with mesothelioma – or who has had a loved one pass from this awful disease – likely has a strong case for damages. But recovery of damages is going to depend on your ability to prove exposure. Our Boston mesothelioma law team has extensive experience in representing clients whose exposure arose from non-traditional sources. We know how to investigate these cases and how to improve your chances of winning the compensation you deserve.
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A five-year prison sentence looms large for a former Nestle plant owner who illegally removed asbestos from his property in violation of the federal Clean Air Act.

Our Boston mesothelioma lawyers understand that the 47-year-old defendant has pleaded guilty to allegations by the U.S. Attorney’s Office that he damaged and removed some 2,000 feet of friable asbestos installation without filing the proper notification with the Environmental Protection Agency.

During the course of the work, prosecutors say the owner hired unlicensed and inexperienced labor to remove the asbestos. Throughout the removal process, the workers failed to keep the asbestos wet. This is a critical step in asbestos removal that helps to ensure the fibers don’t become airborne, posing a risk that it will be inhaled by those nearby.

Inhalation of asbestos can be deadly.

Asbestos exposure leads to a number of serious illnesses, including chronic asbestosis and mesothelioma, which is fatal.

In addition to improperly removing the material, prosecutors say the workers weren’t given protective respiratory gear. Topping it all off, the asbestos wasn’t taken to a previously-approved landfill site for proper disposal.

In this case, it was the workers who tipped off investigators with the U.S. Justice Department that what was happening at the New York work site was not right.

The U.S. Clean Air Act, incorporated into Title 42, chapter 85 of U.S. Code, holds that any personnel working on asbestos activities in public, schools or commercial buildings must be accredited. These personnel include workers, inspectors, supervisors, management planners and project designers.

The National Emission Standards for Hazardous Air Pollutants for Asbestos, which falls under section 112 of the Clean Air Act, lays the groundwork for safe work practices that will help minimize the release of deadly asbestos fibers during the processing, handling and disposal of materials that contain asbestos.

Prosecutors say this is a serious problem, and unfortunately, not an isolated one. The U.S. Attorney’s Office in the Central New York reports they have prosecuted more than 100 such cases in the last 15 years.

Boston too has had its fair share of these cases, revealing that the prevalence of this negligence ensures we will be seeing asbestos exposure liability claims for many years to come. For example, in 2011, a contractor and a real estate agent were fined $42,000 for improper asbestos removal from a property in Worcester. In another case in 2012, Swampscott, a demolition company was ordered to pay $100,000 for improper removal and disposal at a number of locations throughout the state.

The list goes on and on.

Prosecutors in the recent New York case say the fine amount – which could reach as high as $250,000 – should take into account the fact that the city has had to hire its own, licensed asbestos abatement firm to conduct proper removal of the hazardous material that remains on site.

Workers who are negligently exposed to asbestos and suffer illness as a result are entitled to civil compensation.
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A new study conducted by researchers in Washington state reveals that cancer patients were more than twice as likely to file for bankruptcy than those who had never been treated for cancer.

Our Boston asbestos litigation lawyers know that the financial burden tends to be higher for those who suffer from rare and aggressive forms of cancer, such as mesothelioma. Their treatments, medications and procedures are often more intensive, invasive and ultimately more expensive than more common types of cancer.

Part of that has to do with the fact that when a cancer is commonplace, the drugs are mass-produced, more readily available – sometimes even in generic form – and ultimately cheaper. Also, treatments and surgeries for common cancers may be less expensive because more physicians and surgeons are trained to conduct them, whereas mesothelioma patients may need to seek out skilled specialists whose services may not be as readily available.

Most cancer patients have nothing to blame but bad genetic luck for their misfortune. Mesothelioma patients, however, can always point to a specific cause: asbestos. In many cases, patients can even identify exactly when they were exposed. Often (though not always), it was an occupational exposure, stemming from work in shipyards or construction or other industrial occupations. Many of the firms that produced asbestos-laden products knew that they were dangerous, and yet did nothing to alter the product or warn those who regularly used them. Nor did they provide appropriate protections that might have shielded victims from inhaling the deadly fibers.

It is primarily for this reason that mesothelioma sufferers should seek compensation through civil litigation or a claim to one of the several dozen asbestos bankruptcy trusts. Holding these firms accountable continues to be of great importance.

But so too is the financial solvency of your family and those you will leave behind. Spouses of mesothelioma victims can be left not only with the devastating loss of their life partner, but many times, they are left to cope with financial ruin.

According to this study, published in the journal Health Affairs, the researchers mined data from some 400,000 adults, who were evenly split between those who had been treated for cancer and those who had never had cancer. The researchers then cross-referenced that information with bankruptcy filings between 1995 and 2009. Those who had cancer were 2.5 times more likely to endure a bankruptcy during that time frame.

The study didn’t break down which of those cancer sufferers had insurance, but there has been prior research that strongly suggests that many of those who cite significant health issues as the catalyst for their bankruptcy filing did have health insurance.

The greater disparities are reportedly seen when the information is broken down by demographics. For example, minority patients were more likely to suffer a bankruptcy than their white counterparts.

The release of the study coincided with an effort to reduce the cost of cancer drugs, with more than 100 doctors criticizing Big Pharma firms for making critical cancer drugs too pricey for most people to afford.

Certain federal budget cuts have also forced some cancer patients to delay important treatments.

Time is something many mesothelioma patients don’t have in great supply.
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“Nice try, but not happening.”

That was basically the response given by a a federal bankruptcy judge to RPM International Inc., the parent company of Bondex and Specialty Products Holding Corp., in its efforts to limit its liability on future asbestos exposure litigation claims.

Judge Judith Fitzgerald called the company’s attempt a “novel theory,” but ended up flatly rejecting it in a 51-page ruling issued from her position in the U.S. Bankruptcy Court in Wilmington, Delaware.

Our Boston mesothelioma lawyers believe Fitzgerald’s ruling contains sweeping language that is expected to have implications for future asbestos exposure cases.

Bondex, as you may know, is a joint compound that was used by everyone from plumbers to home builders to do-it-yourself motor vehicle mechanics. Products made from this asbestos-laden material included ready-mix joint cement, liquid aluminum coating, fibered masonry coating and ready-mix finish.

Bondex and its direct holding company, Specialty Products Holding Corp., were later purchased by RPM, who continued to market many of these same, dangerous products.

Then, as so many companies beset with asbestos litigation later do, Bondex and SPHC filed for a Chapter 11 bankruptcy protection. RPM was not a part of the filing, but the bankruptcy was intended to initiate the establishment of an asbestos section 524 (g) trust that would serve to compensate existing and future asbestos victims. If approved, it would not only cap the value of future claims against the two subsidiaries, it would hold RPM blameless in future litigation.

As part of setting up this trust, the companies had to estimate what their actual current and future liability is. Part of that involves determining the history and value of past claims. This is where Bondex tried to get tricky.

Both companies said their liability should be between $300 million and $575 million. The firms argued that in delving into the history of these claims, there were a number of cases that couldn’t be counted. The reason? The companies said they had only settled them because they were “nuisances,” and doing so was not an admission of guilt, but rather an effort to reduce the cost of litigation. By weeding out these “nuisance” claims, the companies argued, they could significantly reduce their future liability amount.

No way, said the judge, ultimately holding that the liability of both firms is somewhere closer to the $1.2 billion range. In her reasoning, the judge said that the historical information – ALL of it – is relevant. These were claims the company chose to settle, and they can’t now come back and say they don’t count, though the judge called it a “novel theory.”

It’s true that some companies will settle certain claims on the basis of factors other than merit. However, allowing the companies to determine which claims are which, particularly when we’re talking about how much money they should set aside for future cases, is a little like allowing the fox to guard the hen house.

The companies have said they intend to appeal, a process that could take another three years.
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