Published on:

gp logo.jpgGeorgia-Pacific LLC was founded in 1927 as the Georgia Hardwood Lumber Company. Now, after years of expanding and acquisitions, Georgia Pacific is one of the world’s leading manufacturers and distributors of tissue, pulp, paper, toilet and paper towel dispensers, packaging, building products and related chemicals. Georgia Pacific, an American pulp and paper company based in Atlanta, Georgia, is also a named defendant in a multitude of asbestos cases. From 1965 through 1977 Georgia-Pacific used asbestos to create a building products compound used for hanging wallboard and finishing ceilings.

By 2001 the company had approximately 63,000 pending asbestos injury claims, which soon became the biggest issue clouding the company’s future. By 2004 the company had set aside over $100 million dollars in a ten-year defense fund. In that year alone Georgia-Pacific paid out $200 million dollars to resolve claims, an 11-million-dollar increase from 2003, when claim payments totaled 189 million. By January of 2005 Georgia-Pacific faced approximately 344,300 asbestos claims, costing the company a total of $830 million. It was during 2005 and in response to the overwhelming, rapidly increasing number of asbestos claims, that the company funded a series of studies testing the harmful effects of an asbestos containing joint compound that they previously manufactured. Findings were subsequently published in a series of articles. Eleven papers, published in the journals Inhalation Toxicology, the Journal of Occupational and Environmental Hygiene, the Annals of Occupational Hygiene and Risk Analysis were referred to in court depositions by GP’s Stewart Holm, as “litigation-driven research.”

Stewart Holm, Georgia-Pacific’s own director of toxicology and chemical management, co-authored the majority of the articles and consulted extensively on those that he did not. Georgia Pacific’s own in-house counsel reviewed the articles before they were published and actually recommended revisions. The problem stems from the fact that the studies did not disclose Georgia-Pacific’s involvement in their creation, and two of them falsely claimed “[GP] did not participate in the design of the study, analysis of the data, or preparation of the manuscript.”

Five New York judges ruled that Georgia Pacific must allow a private inspection of the documents and data related to eleven scientific articles that were financed by Georgia Pacific and meant to cast doubt on the harmful effects of Chrysotile asbestos. Although Georgia Pacific argued that the documents were attorney-client privilege, the Court determined that it fell under the crime-fraud exception to attorney-client privilege. The crime-fraud exception applies when legal services are solicited to commit a crime or fraud. The Court also said the data underlying the studies was not privileged and should be produced. There were sufficient extenuating circumstances to warrant a closer inspection of the documents.
Continue reading

Published on:

anxiety.jpgProduct Liability, as defined by Black’s Law Dictionary is:

… the legal liability of manufacturers and sellers to compensate buyers, users, and even bystanders, for damages or injuries suffered because of defects in goods purchased. …

Because Product Liability cases often involve a substantial cost to the plaintiff, it must be determined that the potential award is sufficient to warrant bringing the cause of action. Awards are primarily calculated based on damages and damages are typically associated or equated with a physical injury.

You can typically recover four different types of damages from a products liability case:

Compensatory damages – are based on expenses incurred as a result of the defective

Pain and suffering – these damages are for the pain that you endured as a result of an injury.

Loss of consortium – is to compensate a spouse for the negative effect that the incident had on your relationship.

money bag.jpg Punitive damages – are for the sole purpose of punishing the defendant for egregious behavior as to deter the defendant from ever repeating the actions that lead to the incident.

Now, with increasing frequency, plaintiffs are requesting damages or compensation based on emotional distress. Emotional distress is difficult to prove and more difficult to calculate a compensatory value. Emotional distress can be in conjunction with a physical injury or in absence of a physical injury. It is easier to demonstrate emotional distress when it is a result of or in combination with a physical injury. The emotional distress appears to be commensurate with the severity of the physical injury. When is it permissible or appropriate to seek damages based on emotional distress when accompanying an injury? And when is emotional distress compensable if no physical injury was sustained? The answer is different and varies for each state. The lack of definition and unified standard is what makes it one of the most difficult injuries to prove. The following are ways of demonstrating or supporting a claim of emotional distress

  • Intensity. The severity of the distress. The more significant the mental anguish, the greater chance you have of proving that your emotional distress was profound enough to warrant compensation. In some cases, courts will require some sort of physical injury as well.
  • Duration. The period of time that the pain persists. A consistent and or recurring pain with a significant duration may support claims of mental anguish.
  • Belated Bodily Harm. The physical manifestation of emotional distress. Emotional distress can result in ulcers, headaches, hives and other physical ailments. The existence of these stress-related ailments may be demonstrative of emotional stress.
  • Underlying Cause. The more extreme the underlying cause of the emotional distress, the more likely a court will find emotional distress. The severity of the incident that caused the emotional distress is directly commensurate the emotional stress suffered.

Angry Whopper2.jpgA recent case in which emotional stress damages were awarded was brought by a Seattle, Washington Sheriff’s Deputy. The Deputy went through a Burger King drive-thru and was served a whopper. He did not eat any of the burger, but because of an uneasy feeling, he decided to inspect what lay under the bun. The slimy substance he encountered was later analyzed by a lab and determined to be the saliva of a Burger King employee. He claimed the discovery caused him emotional stress that resulted in ongoing vomiting, nausea, food anxiety and sleeplessness. The court, in a 6-3 decision Thursday, said state law permits relief for emotional distress damages, in the absence of physical injury, caused by being served a contaminated food product, if the emotional distress is a reasonable reaction.
Continue reading

Published on:

hardhat.jpgAccording to Wikipedia, Labor Day is:

A United States federal holiday observed on the first Monday in September, that celebrates the economic and social contributions of workers. It was first nationally recognized in 1894 to placate unionists following the Pullman Strike. With the decline in union membership, the holiday is generally viewed as a time for barbeques and the end of summer vacations.

This Labor Day, take a moment to remember the workers who were unknowingly exposed to asbestos and those who subsequently lost their lives as a result. According to the World Health Organization (WHO), “about 125 million people in the world are exposed to asbestos at the workplace.” 107,000 of them will die.

Occupational exposure or exposure at the workplace is the most common incidence of asbestos exposure. There is also secondary exposure resulting from contact with a second person, usually a spouse, parent or child that brings asbestos home on their clothes and or personal belongings. Finally, bystander exposure is exposure from a nearby location at which asbestos becomes airborne and inhaled even though the exposed person did not work directly with the asbestos or asbestos containing product.

Historically, mining trades posed the highest risk of asbestos exposure. Although asbestos is no longer mined in the United States, not all countries have stopped taking the dangerous mineral from the earth. After taking mining out of the equation, Construction trades pose the greatest risk of asbestos exposure. According to the National Institute for Occupational Safety and Health (NIOSH), almost one-quarter of worker deaths caused by asbestosis between the years 1990-1999, were in the construction trades, by far the most dangerous industry in terms of asbestos exposure. Additionally, those in trades related to Ship and boat building and repairing, Industrial and miscellaneous chemicals, Railroads, Painters, Powerhouse workers, Floor coverers, Pot tenders, steel mill workers, Refinery workers, Paper mill workers, Tile setters, Brake and clutch manufacturers and Machinists are at considerable risk.
Continue reading

Published on:

Microscope ADVANCED_TRINOCULAR_RESEARCH_MICROSCOPE_RMH-4T.pngAccording to the American Cancer Society, malignant mesothelioma is a cancer that starts in the cells that line certain parts of the body, most commonly the lungs and stomach. The disease is predominately a result of exposure to asbestos and kills nearly 3,000 people each year. Because 3,000 is not as staggering as the approximately 200,000 people in the United States that get lung cancer, and more than 159,000 people that die from the disease, funding for research and the necessary attention that would promote public awareness is sometimes difficult to come by. However, there is a dedicated group that vehemently pursue a cure for mesothelioma.

Mesothelioma has no cure at this time. One of the key elements to effective management of the disease is early detection and an accurate prediction of how the cancer will respond to available treatments. Current research includes the search for an ideal biomarker that can aid in the diagnosis of the disease and help predict the effectiveness of various treatments including chemotherapy. A biomarker is a distinct biochemical, genetic, or molecular characteristic or substance that is an indicator of a particular biological condition or process. Obtaining the necessary tissue or tumor samples necessary for a diagnosis is often quite invasive. The majority of research thus far has been of a case-control design to determine diagnostic accuracy of particular molecules. In the past ten years substantial progress has been made in the identification of biomarkers specific to Malignant Pleural Mesothelioma. Future research will require the determination of how to integrate the information of the distinguished markers into clinical diagnostic and /or management algorithms.

Some recent studies have focused on the overexpression of the ephrin B2 receptor (EPHB2) in patients with mesothelioma. Ephrin type-B receptor 2 is a protein that in humans is encoded by the EPHB2 gene. In a sampling of 34 different malignant mesothelioma tumors, it was found that the EPHB2 was significantly higher in tumor tissue than in normal peritoneum and not in benign mesothelial cells. Continuing studies focus on determining the following:

  • If by using specific EPHB2 inhibitors it will slow the progression of the disease. Inhibiting growth increased the apoptotic proteins and activity, which is part of the natural self-destruction of cells. Stopping the growth of EPHB2 also decreased the proliferation and invasion of the bad cells, in the laboratory research.
  • If EPHB2 can be used as an effective marker for Malignant mesothelioma. Can EPHB2 be used for early detection and can monitoring the quantity thereof, determine the effectiveness of treatment.

Research is critical to the advancement of treatment and the search for a cure for Malignant Mesothelioma. Research which cannot take place without the requisite funding. Funding that, despite the admirable efforts of various charities, organizations, and dedicated individuals, always seems to be lacking. The Department of Defense Bill finally offers some assistance. The 2014 Defense Appropriations Bill (H.R. 2397), just recently approved by The House, includes funding for the Congressionally Directed Medical Research Program. The program includes the Peer Reviewed Cancer Research Program in which Mesothelioma is a topic area.

The quest for answers progresses.

The battle continues…
Continue reading

Published on:

Asbestos:Is it hiding in your home? It is widely known that asbestos, the toxic, naturally forming, fibrous mineral, can be found in building materials such insulation and drywall as well as brake shoes and gaskets. But you might be surprised to know where else asbestos has been… and where it is now. Did you know that asbestos has also been found in grooming bags, kitchen appliances and even a child’s toy box.

hair-styling-tools.jpgUp until the year 2000, asbestos has been used in the manufacturing of hair dryers, curling irons and even baby powder. A photographer actually discovered asbestos fibers being emitted from a blow dryer. He was not photographing the hair dryer. He was drying negatives that he had just developed and noticed a dust on the film that turned out to be asbestos. studies during that time period discovered that asbestos exposure from a hair dryer can be equal to or even greater than exposure from being a bystander to a nearby construction site. Electric curling irons as well as the holders have been manufactured using asbestos. In a curling iron, however, it is significantly less likely that the particles become air born. In the late 70s early 80s, as many as 10 out of every 19 body and baby powders tested at Mount Sinai Hospital in New York were contaminated with asbestos fibers, containing anywhere from 2% to 20%.

kitchen.jpgRefrigerators, dishwashers, stoves and ovens contain asbestos. Although the day to day use rarely creates air born debris, the installation, maintenance and repair can put the entire family (as well as the technician) at risk. Large appliances are typically repaired at home. Smaller appliances such as the Fry-Daddy, toasters, popcorn makers, slow cookers and a plethora of others also contain asbestos. The chance of asbestos being inhaled from these appliances is minimal, but considering the sheer volume of people who own one (or more), even the slightest chance of asbestos exposure should be considered UNACCPETABLE.

drawing.pngIf your child/children used Crayola, Prang or Rose Art crayons to create those adorable drawings that hung on the refrigerator (which also may have contained asbestos), they may possibly have been exposed to asbestos. It was not until the year 2001 that the Consumer Product Safety Commission (CPSC) determined that the risk, although low, was sufficient to require the manufacturers to find a substitute for the asbestos. In 2007 Planet Toy’s popular CSI: Crime Scene Investigation Fingerprint Examination Kit was determined to be asbestos-containing. Planet Toy’s ended up filing for bankruptcy, but in 2010, the remaining parties in the pending class action litigation were finalizing a settlement that would refund the price of the toy and initiate a recall of the toy. The toy was actually found to be #1 on the list of the top 10 most dangerous toys.

In January of this year, the Asbestos Disease Awareness Organization (ADAO) posted a new report from the United States Geological Survey (USGS) that detailed asbestos consumption in the United States. Many are not aware that even though the U.S. stopped producing asbestos, we continue to import it in substantial quantity. In 2012 it was estimated that we imported 1,060 metric tons of asbestos. The industry which produces chlorine and sodium hydroxide accounted for approximately 57 percent of consumption. The roofing industry accounted for 47 percent. This leaves 2 percent unaccounted for. Asbestos exposure, in any amount, is not safe. So where is that remaining 2%? (which after just a little bit of math, works out to be over 21 metric tons of asbestos per year) Nobody knows. Is it in your bathroom? Is it lurking in your kitchen? Are your children or nieces and nephews innocently playing with it after you have taken special care to steer them away the typical hazards of sharp or hot objects and electrical current?
Continue reading

Published on:

justice-statue-18-inch-YT-7746.jpgState Court vs. Federal – Weighing the pros and cons.
Typically, whenever possible, asbestos cases are filed in state court. A procedural defense tactic being implemented with increasing frequency is to have the case moved to Federal court.

The Plaintiff determines where the case is to be filed.
In state court, the plaintiff has the potential to recover punitive damages. The case is generally heard more expeditiously. Because plaintiffs’ lawyers choose where to file lawsuits, they have an opportunity to file in states that have particularly favorable legal rules. Approximately 80 percent of asbestos cases are filed in state court.

The right to have the case removed or heard in federal court is the exclusive right of the Defendant or Defendants.
In federal court, all cases filed since 1990 have been assigned to one judge in Philadelphia. This process was established to adjudicate the overwhelming number of asbestos claims. It is now known as the Multi District Litigation (or MDL). Not once has this judge allowed a case to be tried for punitive damages. Cases in federal court typically take much longer to go to trial and can be left inactive for significant periods of time.

The Defendant can move to have the case removed to federal court for several reasons. In asbestos cases, the principal grounds for removal are the Federal Enclave Clause and federal officer removal. The Federal Enclave Clause authorizes Congress to exercise exclusive legislation “over all places purchased by consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful things.” Basically, this puts any exposure that occurred at shipyards, military bases and the like under federal jurisdiction.

The federal officer removal statute provides in pertinent part that “[a]ny officer of the United States or agency thereof, or person acting under him, for any act under color of such office . . .” may remove a civil action or criminal proceeding commenced against him in a State Court to the district court of the United States for the district and division embracing the place wherein it is pending. Manufacturers who provided asbestos containing products to federal agencies, such as the military, claim that they were operating as a federal contractor and thus a federal officer was involved in the business.

Plaintiffs can attempt to thwart these efforts by dismissing the defendant who sought to have the case removed and then request the court remand the case. Or, they can stipulate that the plaintiff is only proceeding against the removing defendant on state law claims thus nullifying the basis for federal jurisdiction.

DISTRICT COURT 2.pngRecently, United Technologies Corp. (UTC) succeeded in removing two pending asbestos cases based on the U.S. Codes federal officer removal provision. The Plaintiffs in these cases were exposed at military bases. CBS ‘s predecessor-in-interest, Westinghouse was also successful in both getting and keeping their case in federal court claiming that, because their products were delivered to an agency of the United States Government, they were operating as a federal contractor and thus a federal officer was involved in the business.
Continue reading

Published on:

On April 16, 2000, (Case No. 00-22876 JKF) Pittsburgh Corning Corporation filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Western District of Pennsylvania. Inundated by asbestos claims, the company saw no other means by which to resolve this legal liability. Over 13 years later, Judge Fitzgerald of the United States Bankruptcy Court for the Western District of Pennsylvania issued a Final Order Confirming the Modified Third Amended Plan of Reorganization. PPG Industries and Corning Inc. are the two companies that own Pittsburgh Corning. Under the final plan proposed for Pittsburgh Corning, PPG Industries would pay about $825 million to the trust through 2023 along with 1.4 million shares of PPG stock or the cash equivalent. Corning Inc. would pay $290 million for the next six years. Their insurers would kick in over $1.7 billion.

amositeasbestospic.jpgPittsburgh Corning developed, manufactured, and supplied building materials on a national and international level. Specifically between 1962 and 1972, the company manufactured a pipe-covering and insulation branded UNIBESTOS. Unibestos Pipe Insulation and Unibestos Insulation were durable, withstood temperatures of 1500 degrees Fahrenheit, were extremely resistant to corrosion, and when the dust they created was inhaled, they were potentially lethal. Both products were composed primarily of thin, long-fibered Amosite asbestos. Amosite is known as one of the more deadly types of asbestos because of its long fiber characteristic that is brittle and breaks easily causing it to be inhaled.

Approximately 400,000 claims were filed against Pittsburgh Corning as a result of exposure to their asbestos containing products. Nearly 200,000 claims were settled before the company filed for chapter 11 bankruptcy. The 3.5 billion dollars allotted to the bankruptcy trust is still just out of reach to the over 200,000 victims left uncompensated. The down side of all this is that it will likely take at least one more year before the final confirmation of the plan and for trust to actually begin accepting the claims that will be paid at approximately 37% of the value. Victims will wait even longer for even a small percent of justice.
Continue reading

Published on:

Ever since Canada turned its Jeffrey Asbestos Mine into a virtual Mars, the question has been out there as to who will continue to export and promote the use of the potentially lethal mineral asbestos. Early last month, that question was answered when Russia, the world’s leading exporter, along with Kazakhstan, Ukraine, Kyrgyzstan, Zimbabwe, India and Vietnam blocked the move to list chrysotile asbestos (also known as white asbestos) under a UN convention that requires member countries to decide whether they wish to take the risk of importing the hazardous substances. At a meeting in Geneva, Switzerland, the opposition ignored the lives it may save and argued that it would increase shipping and insurance costs.

For years, the fight has been waged to include chrysotile asbestos in the Rotterdam Convention on Prior Informed Consent. Countries would have the right to be advised of the dangers of the product being imported. They would be required to give their consent, in writing, for the acceptance of both the asbestos or asbestos containing product and the risk that is being imported with it. Supporters of its inclusion say that this may save some of the nearly 110,000 people that the World Health Organization (WHO) estimate will die from an asbestos related disease each year. The opposition says the price is too high.

In 2011, Canada stood nearly alone (supported only by the Ukraine) in its efforts to keep chrysotile asbestos off “the list”. Now, in Canada’s absence, powerful industry has joined together and taken a seat at the table. Dollars rather than sense are what were served.
Continue reading

Published on:

Yarway trust.jpgYarway is the most recent in a long line of manufacturers who have had to claim bankruptcy as a result of asbestos claims. On April 22, 2013, Yarway filed a chapter 11 bankruptcy in the United States bankruptcy Court for the District of Delaware (In re Yarway Corp., 13-bk-11025). The reason for the financial downfall is said to be a continued influx of asbestos related claims. Exposure to Yarway’s asbestos containing products is distinguished, by the company, in two separate categories. The first group of claimants are those who were exposed to Yarway’s gaskets and packing. Although the gaskets and packing were manufactured by other companies, they were included in Yarway’s production of its steam valves and traps between the 1920s and 1970. The second are those exposed to joint packing, consisting of Teflon and asbestos, that was manufactured by Yarway between the 1940s and the 1970s.

Having exhausted all available insurance for asbestos related claims that began in 1991, Yarway hopes that the bankruptcy will allow for the equitable resolution of asbestos claims and the reorganization of a once profitable company. The over $128 million ($18 million for this fiscal year alone) paid out in settlement costs has proven too much for the company to withstand.

A little company history: The company was founded in 1908 by Robert Yarnall and Bernard Waring and given the name Simplex Engineering Company. They supplied steam straps, valves and controls to the flourishing steam-power industry. Based out of Chestnut Hill, PA, they put out a world-class product working out of a renovated machine works. The company evolved into the Yarnall Waring Company and eventually, in 1962, took its final namesake, YARWAY, which is displayed on its products still today.

Published on:

Caution_blank.pngThis product contains ASBESTOS which is known to cause cancer and lung disease. Avoid creating dust. Intentionally removing or tampering with this label is a violation of state law.

That is the minimum that must be stated in the warning label that must be applied to ALL asbestos containing building materials.

Earlier this month, legislators in Washington State House of Representatives passed a law requiring that all products containing asbestos meant to be sold in the United States must be clearly labeled.

Additionally, a bill proposed by Washington State Senators Biling, Ranker, Kohl-Welles, and Kline was also passed 65 – 28. The bill requires that:

A label must be placed in a prominent location adjacent to the product name or description on the exterior of the wrapping and packaging in which the asbestos-containing building material is placed for storage, shipment, and sale.

Effective January 1, 2014, the appropriate labels must be affixed to the designated products. Failure to comply will, at first, likely only result in a warning and the chance to rectify the problem. Subsequent infractions may result in up to a $10,000 .00 fine.

Many consumers are unaware that asbestos containing products are still a major part of the construction industry. Although asbestos is no longer mined in the United States, asbestos is imported, sold and widely used. Asbestos can be found in nearly 3,000 products such as roofing shingles, tiles and siding, spackles and joint compounds, plaster, flooring and insulation…and many more.

Asbestos is a group of naturally occurring fibrous minerals that, when made airborne and then inhaled, become toxic. Warning the consumer and any subsequent users of the potential hazards should not only be the law…It should be considered common sense. Every year tens of thousands of people are afflicted with and die from asbestos related diseases. These include (but are not limited to) malignancies of the respiratory and digestive systems as well as non-malignant diseases. The respiratory system malignancies include cancers of the throat (laryngeal & pharyngeal), the lung, and mesothelioma. Malignancies of the digestive system include cancers of the stomach and colon. Non-malignant asbestos related conditions include asbestosis and pleural disease. By 2029, approximately a half million asbestos related deaths (preventable deaths) are anticipated in the United States alone.
Continue reading