• Asbestos victims and their survivors seek justice Tuesday, December 29, 2009

    Stop the Whining

    This column appeared on July 17, 2009 in the Daily Journal. It is reprinted with permission of the Daily Journal.

    By Dean A. Hanley

    Each year, 3,000 Americans develop asbestos cancer, known as mesothelioma, a very rare and rapidly fatal cancer of the lining of the lungs, heart, abdomen or testicles, caused only by asbestos. Nearly all victims of asbestos cancer will die within six to 18 months of diagnosis. Typically their asbestos exposure occurred on the job where they worked around construction materials that contained small amounts of asbestos.

    They came into contact with asbestos from insulation aboard ships and in industrial refining facilities, or from wallboard finishing compounds and sprays, fireproofing, brake linings, cement pipe and gaskets and packings commonly used in valves and pumps, automobile engines, refrigeration and air compressors. It was even used in ordinary lawnmowers.

    The workers themselves are invariably without fault in their own demise. Never warned, usually unaware that the materials they were handling contained asbestos, they unwittingly poisoned themselves by breathing invisible and odorless asbestos. Often they brought these invisible fibers home on their clothes, hair and shoes. In so doing, they exposed their wives and children to asbestos, some of whom develop asbestos cancer 20-40 years later.

    Asbestos victims have recourse in California if they can prove that they were exposed in California. Many who now live throughout the United States served their country in naval shipyards located in California where they and their families suffered exposure to asbestos. When that victim can satisfy a judge and jury that a defendant’s products or actions were a substantial factor in contributing to his risk of developing asbestos cancer, he may hold the company liable for its proportion of fault in causing his disease.

    To the extent his economic damages are not offset by settlements secured from responsible bankruptcy trusts or other defendants, he can hold the defendant responsible for the remainder of his out-of-pocket losses incurred because of his asbestos cancer. Since his life expectancy is measured in months rather than years, California affords him an opportunity to have his day in court before he dies. The jury must determine all of the entities at fault for causing the asbestos cancer and attribute to the remaining defendant its appropriate share of that fault.

    For many people like Jim Morrison, the California system works to help compensate that which can never truly be compensated. Having never smoked a cigarette in his life, at the age of 54 he was diagnosed with cancer from asbestos and given only months to live. His primary goal was to live long enough to see his engaged daughter marry later in the year.

    With nearly $2 million in lost earnings as the owner of his own plumbing business and more than $500,000 in medical bills, he sued the three dozen companies that caused his cancer. His doctors opined that from a medical and scientific perspective, the cause of his cancer was clear: the totality of all of the asbestos he was exposed to during his working life. Virtually all of the exposure occurred in very small doses, scraping some gaskets here and there, sweeping up debris, wiping down his workbench and wearing work clothes that were never truly free of asbestos even after going through the washer and dryer.

    While Jim never saw it coming, many of the companies he sued did. One of those companies declared in a 1966 memo that “people who made a good living working with asbestos may as well die from it. They have to die from something.” Others demonstrated their disregard for human safety by continuing to sell the asbestos Jim was exposed to into the late 1980s when it was well understood that exposure to the smallest amounts of asbestos will cause cancer in some people. The jury found that defendant Copeland Inc. was negligent for failing to recall or retrofit dangerous products still on the market and in the field today. In that regard, Jim’s personal lawsuit served a larger good.

    By contrast, overly aggressive defense of these lawsuits harms society. Defense experts have peppered the scientific literature with false and unscientific conclusions in an effort to create medical defenses that would not otherwise be available. These “experts” have manufactured an argument that 95 percent of the asbestos historically used in the United States does not cause asbestos cancer – in direct conflict with the findings of every U.S. and intergovernmental agency, regulatory body and disinterested scientific organization that has studied the issue. Busy physicians glancing through abstracts of articles created by those companies and their “experts” are often understandably unaware that they need to consider the source of that information – a source often undisclosed.

    When a company manufacturing equipment with asbestos components considers itself “unfairly targeted,” we should question what is unfair. Surely there is nothing unfair about holding a company responsible for its share of the fault in causing an injury. Is joint and several liability unfair? Joint and several liability for economic damages is a policy judgment made by the people of California that applies to all cases, not just asbestos cases.

    If a company that had a substantial hand in causing the injury cannot be held responsible for such damages, who should be? Are we prepared to advocate for a system in which an injured victim has no recourse against the culpable company that hurt him or his family? Should asbestos victims instead look to public assistance programs when their livelihood has been taken from them or their families?

    The idea that the source of the industry’s problem is lawyers from outside California is likewise untenable. If the companies weren’t killing Californians in such high numbers, there wouldn’t be such work for those lawyers and the world would be a better place.

    Many asbestos victims spent a working lifetime repairing equipment covered with asbestos insulation on the outside and asbestos gaskets and seals on the inside. Despite that the equipment manufacturers specified and often supplied the asbestos and knew the deadly consequences of handling asbestos when performing ordinary maintenance and repairs on their equipment, their own repair manuals were silent about the hazards and simple precautions – masks, ventilation and wetting the material – that would have prevented the harm.

    Now, the lawyers for many of these asbestos-laden pump, boiler and turbine makers shrug in feigned disbelief that their clients are being sued for this conduct. These companies could and should have played an important role in preventing the asbestos public health disaster, but they too, like their counterparts in the asbestos insulation business, chose the pursuit of profits over workers’ lives. They belong in court to answer for their inexcusable conduct.

    Way back in the 1930s, scientists understood that asbestos caused fatal disease. By the 1940s, California was regulating asbestos. If those regulations had been followed, little disease would have occurred and alternatives to asbestos would have been found. By the 1950s, asbestos was established as a carcinogen. By 1961, researchers found that exceedingly low amounts cause asbestos cancer, and that the risk extended to families of people who worked around asbestos and lived near factories where it was used.

    There was a time when many asbestos companies mocked victims by saying they had to “die from something” anyway. As recently as the 1970s, when Union Carbide salesmen selling raw asbestos fiber to great profit and promoting its use in a wide variety of products throughout the United States, including in our homes and schools, triumphantly proclaimed in memos that an unsuspecting customer “didn’t even know it was asbestos” that he was buying.

    Now that the devastation of disease that asbestos companies have caused is leaving its true legacy in this country by its rising death toll, they should not complain how the civil justice system is unfair to them. What’s unfair is that they promoted asbestos and concealed its danger.

    Dean Hanley has represented asbestos plaintiffs in California for 17 years and is a founding partner of Paul & Hanley with offices in Los Angeles and Berkeley.

    (c) 2009 Daily Journal Corporation. All rights reserved.

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    Category: Tort Reform;