On October 20, 2005, a jury in California found Gurlock Sealing Technologies, of Palymyra, New York, and Kelly'Moore Paint Company, of San Carlos, California, jointly liable for Robert Treggett's malignant lung cancer. The jury recommended that Tregget receive a total of $36.6 million dollars. Mr. Tregget, 60, allegedly contracted his lung cancer through asbestos exposure on a U.S. Navy submarine and while remodeling a home. Tregget had chemotherapy and surgery to remove his right lung after being diagnosed with lung cancer in 2003.
An eight-member Middlesex County, New Jersey, jury awarded William Rhodes, 68, and his wife Doreen, $10 million dollars on August 11, 2005, as compensation for their pain and suffering caused by the mesothelioma, and as punitive damages against Universal Engineering of Manville, New Jersey. Mr. Rhodes had worked as a boiler repair technician for 30 years, during which time he used asbestos—containing products produced by Universal Engineering.
It began with Clarance Borel. Borel v. Fiberboard Paper Products Corporation was the groundbreaking case in all asbestos litigation. Mr. Borel was an asbestos insulation worker from Texas, where he was first exposed to asbestos in 1936. In 1969, he became disabled by asbestosis. A year later mesotheliona was diagnosed. Because compensation was strictly limited under Texas law, he sued several asbestos manufacturing companies, seeking full recovery of compensatory damages. The dam was about to break.
In court, Borel maintained that he and his coworkers had not been informed of the hazards of asbestos, and that respirators were not available, and when, years later they were available, they were not required to wear them as they were awkward and uncomfortable. His lawyers noted that none of the asbestos manufacturers had tested the effects of asbestos dust on workers, nor had they determined whether the workers' exposure exceeded threshold limits. Mr. Borel died before the trial ended. Nevertheless, the jury returned a verdict favorable to his widow and family. The dam burst. Tens of thousands of asbestos personal injury cases, settlements, and trials followed, and thousands remain in progress.
What is this material that can induce such fatal conditions and for which juries feel constrained to award unprecedented compensation?
Asbestos is not a single mineral; rather, it is a generic term describing six naturally occurring fibrous silicates, for the most part silicates of magnesium, calcium, iron, and/or sodium, with an unmatched resistance to fire. The six include chrysotile, crocidolite, amosite, tremolite, anthophyllite, and actinolite. But the common commercial products are chrysotile MgSiO- (OH4), which currently accounts for 99% of world production, while crocidolite Na- (Fe+, Mg) Fe+SigO22 (OH)2. and amosite (Fe-. Mg) Si-O22 (OH)2. account for the remaining 1%, if that much. Chrystotile, white asbestos, is the product of choice because of its soft, silky fibers, chemical and thermal stability, high tensile strength, flexibility, and low electrical conductivity. In addition, it does not evaporate, dissolve, burn, or react with other chemicals, nor is it your common garden variety of plant or animal fiber, such as cotton, wool, flax, hemp, or hair, which are carbon-containing compounds. Asbestos contains no carbon and is thus inorganic; the others are all organic molecules that the human body can readily metabolize. The qualities that made it so desirable also make it difficult for the body to remove—difficult, but not impossible. However, these fibers are also tasteless, odorless, invisible, and nonirritating to the throat. You simply do not know that they are present. Consequently, asbestos can be a dangerous material. But again, it's the dose that is consequential.
Asbestos was not, is not, used in its raw, fibrous state. It is added to vinyl, plastic, asphalt, cotton, and cement. It can be spun into yarn, woven into fabric, braided into rope (its fireproof threads are stronger than steel), or fabricated into corrugated or flat sheets for use as building materials as well as piping. Its heat- and corrosion-resistant qualities have been so beneficial and so desirable that between 1900 and 1980, over 36 million tons were used worldwide in over 3000 products.
It 's fire-resistant qualities, which have never been surpassed, were known to the Egyptians, Greeks, and Romans, who dubbed it the miracle material. The Greeks, we are told, used asbestos for wicks in their temple lamps and candles and were amazed that the flames did not consume the wicks. Consequently they called the substance "sasbestos," meaning inextinguishable, or unquenchable. In the ninth century, Charles the Great Charlemagne was known to clean his asbestos tablecloth by throwing it into a fire .
In the early 1930s widespread use of asbestos in homes, schools, and offices began. Fire protection was the compelling reason. But it was during World War II (1939-1945), with its demand for a vast fleet of naval and cargo vessels, when thousands of workers were employed in shipyards across the country as insulators and pipefitters, working in cramped, confining holds of ships applying the fire-retardant asbestos-containing material (ACM), often without benefit of respirators and adequate ventilation, and smoking as they worked, that many of them became the cases of asbestosis, lung cancer, and mesothelioma that began to appear 20, 30, and 40 years later.
But it was with Public Law 99-519, AHERA, The Asbestos Hazard Emergency Response Act, signed into law by President Ronald Reagan on October 22, 1986, that asbestos became a household word and a highly emotional issue, and the asbestos abatement industry was born, as was the pandemic of media-genic disease.
Because of the public concern for what was perceived as ill effects to their school-age children by 1 or 2 asbestos fibers in the air, AHERA required that the countries 100,000 plus schools conduct inspections by appropriately trained and certified building inspectors to identify both friable (crumbly) and nonfri-able ACM. With this information, the schools were required to prepare a management plan which would contain their schools strategy for managing asbestos safely. That was EPA's original intent. Unfortunately, by this action EPA fostered the notion that any level, any amount of asbestos was a threat to health. Political expedience impeded impartial scientific judgment. That exposure did not necessarily mean illness was totally lost in the onslaught to remove asbestos from schools, homes, and office buildings, even though 2 years after AHERA, the EPA stated that "although asbestos is hazardous [that word again], the risk of asbestos-related disease depends upon exposure to airborne asbestos fibers," and furthermore, on the basis of the available data, "The average airborne asbestos levels in buildings seem to be very low. Accordingly, the health risk to most building occupants also appears to be very low." In fact, the EPA itself found asbestos air levels in federal buildings to be essentially the same as levels outside these buildings. They stated emphatically that "Removal is often not a building owner' s best course of action to reduce asbestos exposure. In fact, an improper removal can create a dangerous situation where none previously existed" . But who was listening? Certainly not the media, who might have been counted on to get EPA's message out, but were more concerned with fanning the flames of fear of disease, which abetted lawyers in their steady stream of lawsuits.
Yes, asbestos fibers are known to have adverse health effects. The mechanism by which fine particulate matter gains deep penetration into the lungs was described earlier. Because of their long, filamentous, silky nature, asbestos fibers can readily penetrate down to the alveoli. Asbestos fibers, with their fishhooklike ends, fasten onto alveoli walls. In response to this irritation, the body, attempting to protect itself, begins a process of walling off, which is a double-edged sword in that wall thickening also reduces the passage of oxygen and CO' . This walling off, referred to as fibrosis' in the case of asbestos, is asbestosis. Shortness of breath occurs on walking, climbing stairs, and as it progresses, on lying down; a form of suffocation. Asbestosis is most common in men over 40 who have worked in asbestos- related occupations for long years. Cigarette smokers are at greatest risk of developing asbestosis. It is worth recalling that each lung consists of some 400 million alveoli (800 million in both lungs). If one, two, or three fibers enter an alveolus, causing irritation, it will be of no consequence. But again, this noteworthy message fails to get to the public, for whom a single fiber becomes a fearsome thought.
Mesothelioma is something else again. The lungs and abdominal organs lie in hollow cavities. For the lungs, it' s the pleural cavity; for the abdominal organs, it' s the peritoneum. Both cavities are lined and covered by a clear, saranlike tissue. It is in this tissue, the mesothelial tissue, that the rare malignancy mesothelioma arises. In the 1960s mesothelioma was reported to be due to exposure to crocidolite by South African asbestos miners. It is a nasty tumor characterized by shortness of breath, coughing, weight loss, and incapacitating pain, invariably resulting in death a year or two after diagnosis. Exposures had usually occurred 20-40 years earlier and may have been relatively brief, but heavy. Smoking does not appear to be connected to mesothelioma. Mesothe-lioma cases increased steeply from the 1970s through the mid-1990s then leveled off. This mesothelioma epidemic was the result of high-level occupational exposure from the 1930s through the 1960s in workplaces populated almost exclusively by men: "It is unlikely that low environmental exposure to asbestos, or any other type of low-level asbestos exposure, is associated with more than a negligible risk of mesothelioma" .
Epidemiologic studies have conclusively documented the association of bronchogenic carcinoma, lung cancer, with asbestos. Here again, it is the asbestos workers who smoked who have the highest risk and incidence of lung cancer compared to smokers not exposed to asbestos, or asbestos- exposed nonsmokers.
Unfortunately, asbestos, especially asbestos litigation, has inspired a clutch of unsavory characters. No subject has raised more emotion in the field of occupational health in the past 35 years than asbestos, which has provided the media, the legal profession, radiologists, and removal contractors with a bountiful harvest. It is well known and amply documented that reading X rays, radiographs, is a tricky business. Also, because the federal government needed to keep track of coal miners with black lung disease, the National Institute of Occupational Safety and Health (NIOSH) was concerned about the compe tence of physicians to read chest X rays, it instituted a week- l ong training program of X-ray reading, with final exams, including reading of X rays. Those who passed the rigorous test were certified as "B" readers. Lists of "B" readers in all 50 states are available from NIOSH.
In diagnosing asbestos-related diseases the most important medical tool is the chest X ray. In 1990, physicians from Johns Hopkins Medical School, West Virginia Medical Center, and the University of Southern California collaborated on a radiologic reevaluation of cases of alleged asbestos-related disease. But what prompted that? Why reevaluate X-ray films? During 1986, the National Tire Litigation Project sent physicians around the country in mobile X- ray vans to screen rubberworkers for asbestosis; a scheme calculated to provide cases for a group of lawyers. In one location, 700-750 workers submitted to a screening. Approximately 440 of the workers examined filed legal claims for an asbestos-related injury. Such numbers of positive X-ray findings represents a prevalence of 60%. If this is correct, it would constitute an epidemic of massive proportions. Consequently the physician/investigators sought to confirm or refute the radiologic findings. For this reevaluation they obtained the X - ray films of the tire workers and presented them to three independent board-certified "B" readers, who were not told the background of these films, but were required to interpret them using guidelines developed by the International Labor Organization. In as much as the technical quality of an x-ray film can influence a diagnosis, an assessment of film quality was made. One of the readers found 35, or 8% of the films to be unreadable, but most importantly they found the original prevalence to be mistakenly high. How high? The prevalence of likely asbestos-related conditions according to each of the readers was 3.7%, 3.0%, and 2.7%. "A large proportion of the re-evaluated cases had completely normal chests for their ages," and "the vast majority of abnormalities found were non-occupational in origin and consisted of conditions to be expected in an aged population." They concluded that the best estimate is that possibly 16, but more realistically, 11 of the 439 cases, some 2.5%, may have a condition consistent with asbestos exposure .
Echoing Reger, in 2004, researchers at John Hopkins and West Virginia published their findings of a study comparing "B" readers interpretations of chest X-ray films with those of "B" readers employed by plaintiff's lawyers. They obtained 492 chest radiographs that had been read as 95.9% positive for lung changes. All were presented to each of six independent "B" readers who had no knowledge of the history of these radiographs. The six independent readers found 4.5% positive . In an accompanying editorial, the question was raised; "Is something rotten in the courtroom?" as the differences between the groups is far beyond chance variability. Listen to their concern: "the radio-logic community itself has an obligation to conduct further investigations to determine whether the integrity of ' B ' reader radiologists has indeed been breached, and if so, to repair the breach,implement measures to prevent it from happening again, and restore integrity to our nobel and proud profession " [ 72 ].
Fast-forward to 2006. Mounting evidence indicates that many asbestos injury claims, and there are thousands of them, are not genuine; a lawsuit machine appears to be at work. In July 2005, Judge Janis Graham Jack of Federal District Court, Corpus Christi, Texas, in a withering decision threw out 10,000 plaintiffs' claims in a giant silicosis lawsuit because she found, as noted in the case Re: Silicia Products Liability Litigation. Order No. 29. Addressing Subject Matter Jurisdiction, some expert testimony and sanctions, from 1994. A physician, Dr. Ray A. Harron, had found "opacities and scars in all zones of Mr. Kimble ' s lungs, consistent with asbestosis." In 2002, the patient, Mr. Kimble, was X-rayed again, this time in connection with the current silicosis litigation. Dr. Harron again read Mr. Kimble's radiograph and determined that Mr. Kimble's lungs had opacities and scars consistent with silicosis. Just as the defendants prepared to introduce a packet of eight more identical asbestos/ silicon reversals by Dr. Harron, Dr. Harron stated to the defendant's attorney, "if you 're accusing me of fabricating these things, I think that ' s a serious charge." When the court responded that the defendants seemed to be making that accusation—and the defense council agreed, Dr. Harron asked for representation. The court ended its testimony at that point in order to allow Dr. Harron to hire an attorney. As Judge Jack stated :
The court finds that filing and then persisting in the prosecution of silicosis claims while recklessly disregarding the fact that there is no reliable basis for believing that every plaintiff has silicosis constitutes and unreasonable multiplication of the proceedings. When factoring in the obvious motivation—overwhelming the system to prevent examination of each individual claim and to extract mass settlements—the behavior becomes vexatious as well. Therefore, the court finds that O'Quinn (Plaintiff's Council) has multiplied the proceedings . . . unreasonably and vexatiously, and his firm will be required to satisfy personally the excess costs, expenses and attorney's fees reasonably incurred because of such conduct.
The New York Times noted that Dr. Ray A. Harron reviewed as many as 150 X-ray films a day, one every few minutes at $125 each—some $20,000 a day, earning millions of dollars over the years. Some of his reports supported claims by more than 75,000 people seeking compensation for asbestos-related lung injury. Over the last 30 years, more than 700,000 claims have been filed involving inhalation of asbestos, and more than $70 billion has been spent on asbestos litigation, and $49 billion as compensation. Dr. Harron gave up his medical practice for reading X-ray films full time and averaged 6400 X-ray readings yearly over the past 10 years .
One reason for the wave of claims was the realization on the part of claimants, their attorneys, and trade unions that many asbestos manufacturers had already been driven into bankruptcy, and settlement funds were drying up. As many as 90% of current claimants have no signs of serious illness, but are filing claims while there is still hope for some compensation. Clearly, asbestos-
related illness is not as widespread as corruption among lawyers, physicians, and their plaintiffs.
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