Mesothelioma Lawyer Blog

The primary reason so many people in this country have been terminally sickened by exposure to asbestos is that employers and manufacturers failed in their obligation to warn workers of the dangers and to take all precautionary measures to keep them safe.

Our mesothelioma lawyers know that despite the fact that asbestos use has waned significantly over the last 40 years, it continues to be a legal material that is still used in the production of numerous compounds and materials.

While we would like to believe that our workforces are safer than they were even just a few decades ago, the reality is that the Occupational Safety and Health Act hasn't been updated since 1970.

Now, some lawmakers are hoping to change that, with the Protecting America's Workers Act, which would serve as an amendment to the earlier legislation and enhance workplace protections, including for employees who continue to come into contact with asbestos.

In general, the bill aims to:

• Extend OSHA coverage to public employees;


• Increase whistleblower protections;


• Improve reporting, inspection and enforcement.

Similar legislation had been proposed before, though has died time after time amid unsurprisingly fierce opposition by big industry groups.

A big part of the positive change that this bill might affect is to give the Occupational Safety & Health Administration some teeth in its watchdog role.

For example, as it now stands, an employer whose willful violation of the law would lead to the death of a worker would face a maximum penalty of a misdemeanor, accompanied by, at most, a six-month prison sentence. Consider that even harassing a wild burro on a public land will get you at least a year behind bars.

This bill, sponsored by Patricia Murray (D-WA), would change that. It would make knowledgeable violations of the law that end in a worker death a felony, carrying a maximum sentence of 10 years in federal prison.

Also, the act would significantly increase the civil penalties. It's worth noting that these penalties haven't changed on iota since 1990. (A gallon of gas back then cost $1.16 and median household income was less than $30,000.) Yet penalties for worker safety violations have not increased at all. In fact, OSHA is one of the few federal agencies that is exempt from inflation.

So right now, serious violations - or those that are defined as being most likely to result in serious physical harm or death - are punishable by a maximum fine of $7,000. Willful repeat violations are punishable by a maximum $70,000.

The new law would up those amounts to $12,000 and $120,000, respectively, bringing them exactly in line with inflation. It would also lift OSHA's exemption to inflation adjustments.

The law would also mandate that companies would have to protect ALL workers who are working on their job sites, not just those whom they employ directly. They would also be required to account for any illnesses and injuries acquired by those workers and maintain a log.

The way it works right now, contractors, who often carry out some of the most dangerous work, aren't included in most company's injury logs, even when the injury occurred at the company's work site.

This law is about protecting our future. For workers who have already suffered exposure to asbestos, we are here to help.

Continue reading "Bill Would Enhance Worker Protections From Asbestos, Other Hazards" »

A rare form of aggressive, terminal cancer sweeps across the industrialized world over the course of several decades, caused by exposure to asbestos produced by businesses that know the risks, yet continue to use it anyway.

Those who are diagnosed die young - in their 40s, 50s and 60s, with the cancer having manifested years after exposure and then progressing rapidly, leaving their spouses, children and loved ones a matter of a couple years or a few months to say good-bye. It's estimated that by the time the incidence of this cancer peaks in two years in the U.S., some 500,000 people will have died from it, despite the fact that transparency and enforced safety regulations could have prevented scores of unnecessary early deaths.

Who would you say is the victim in all this? Our mesothelioma lawyers know most would answer the patients or the loved ones who are now left behind to face the rest of their lives alone.

But apparently, insurance companies feel they are the ones who have suffered.

When a ratings firm recently came out with an estimation that insurance companies are going to need to set aside another $11 billion over what was previously budgeted (bringing the total to $85 billion, or $170,000 per mesothelioma patient), insurance companies went on the offensive.

Rather than conceding that this was a horrible chapter of corporate history that should be righted (to the extent that it can be) and never repeated, the insurance companies are instead pushing legislation that would make it more difficult for victims and their families to file mesothelioma litigation actions. Specifically, the American Legislative Exchange Council is fighting for this measure using the argument that much of these lawsuits are fraudulent. Rather than acknowledging the widespread suffering and deaths, insurance firms are contending that people must be making it up.

ALEC is pressing Republican lawmakers in particular to enact measures that will protect corporations from claims of toxic exposure, namely in West Virginia, Texas, Louisiana, Oklahoma, Ohio and at the federal level.

It's worth noting that this position is in opposition to the beliefs of most Americans. Insurance firms are among the industries least trusted by the public, with fewer than 40 percent voicing trust. The only two industries that garnered less public support were financial service firms and the federal government.

And yet, measures protecting these insurance firms are fast gaining a great deal of support due to the powerful influence of insurance lobbyists.

Rather than placing the blame where it belongs - with the companies that perpetuated this exposure and then schemed to cover it up - ALEC and other industry advocates are blaming plaintiff attorneys. They want to paint a picture depicting lawyers as the root of the problem, when in reality, the root of the problem is that people are suffering and dying because of the actions of those firms they agreed to insure.

We can understand that perhaps these insurance companies weren't aware of the extent to which their clients where being negligent when they signed on with them. They most certainly didn't expect the sheer volume of asbestos-related claims to be filed decades later. But that doesn't take them off the hook and it most definitely doesn't make them more of a victim than those who are losing their lives and their loved ones to this horrible disease.

Continue reading "Mesothelioma Patients vs. Insurance Companies - Fighting for the True Victims" »

Following passage of Ohio's new "asbestos transparency" law late last year, another state is now mulling the same.

Our mesothelioma attorneys understand House Bill 529 in the Mississippi House of Representatives would require asbestos plaintiffs to disclose all involvement with asbestos trusts.

Specifically, the measure would mandate asbestos trust claimants to submit a sworn statement disclosing all asbestos trust claims made either by him or on his behalf. Additionally, the claimant would have to turn over all information related to that claim at least a month before the discovery phase of the case gets underway. In instances where such claims were made after the suit was filed, the claimant would have a month to let the defense know of that as well.

If the asbestos defendants find any issues (as they most certainly are apt to do), they would have 2.5 months before the beginning of a mesothelioma trial to request a stay in the case, provided they can show credible evidence.

What's more, if a person files a claim to access funds in an asbestos trust after he or she has obtained a court judgment, the court can later decide to re-open that case in order to adjust the judgment amount.

If its passed, it would apply to all asbestos-related claims filed after the 1st of July of this year, and also to any pending cases for which the trial hasn't yet started.

The reason all of this is so troubling is that many times in mesothelioma cases, there are multiple defendants, with each likely to have contributed to the fatal illness incurred by the plaintiff. These individuals have two ways of seeking relief: Either by filing a lawsuit or by making a claim to an asbestos trust. In cases where there are multiple causes of exposure, these two remedies may not be mutually exclusive. But legal reform like this is not, as backers suggest, a way to provide "transparency." Rather, it is one more way in which defendants can deny culpability or the extent of their liability. All it does is make the process more complicated and time-consuming for plaintiffs - who already are on borrowed time, as mesothelioma, once diagnosed, is aggressive and rapid in its progression.

Asbestos trusts were founded as a way for mesothelioma sufferers to obtain relief from companies that had filed for bankruptcy protection. The courts determined that these firms should not be allowed to simply walk away from the obligation to provide compensation to those harmed.

The U.S. Government Accountability Office estimates that as of 2011, there were roughly 100 companies that had declared bankruptcy at least in some part due to asbestos liability claims. The overall number of asbestos defendants is estimated to be about 8,500, according to RAND Corporation researchers.

Contrary to the characterization provided by asbestos defendants, these trusts are not being bled dry. Current trusts are estimated to control nearly $40 billion in assets, and those figures continue to rise.

These actions are likely to prompt other states to do the same, meaning it is all the more critical for mesothelioma sufferers and their loved ones to carefully choose a law firm with a successful history of mesothelioma litigation on behalf of victims and their families.

Continue reading "Mesothelioma Plaintiffs' Rights Under Siege With "Transparency" Laws" »

Justices of the Virginia Supreme Court threw out a sizable mesothelioma verdict after a defense appeal argued the trial judge failed to allow critical evidence that would have lessened the burden of responsibility.

Our mesothelioma lawyers understand that in Exxon Mobile v. Minton, the justices sided with the oil company, remanding the case back to the circuit court for a new trial.

The plaintiff in this case is the widow of a Newport News Shipbuilding employee, who worked at the shipyard from 1956 until 1993 (except for two years in which he served in the Army Reserves). During his first four years on the job, he worked as an apprentice shipfitter, constructing new ships. He returned to that post upon his discharge from the Army Reserves, and at that point was promoted to a supervisory role.

During this time, he was routinely exposed to asbestos in and around his work site, which was not on any Exxon ship. As such, the plaintiff never alleged Exxon was responsible for this asbestos exposure. Asbestos was commonly used aboard civilian and military ships. Consequently, shipbuilders are among those occupations at highest risk for developing mesothelioma as a result of decades of asbestos exposure.

However, in the mid-1960s through the late 1970s, Exxon began regularly bringing their ships to the yard for repairs. The company owned 17 of the roughly 200 ships that were repaired at the yard. These ships were full of asbestos.

Then, three years ago he was diagnosed with mesothelioma. He subsequently filed a suit against Exxon under the federal Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b), alleging Exxon had failed to warn or protect him of asbestos dangers. The law allows that ship owners may be held responsible for negligence that results in worker injuries. His case was initially successful, resulting in a $17.5 million verdict.

However, Exxon appealed on four different grounds:

• There was insufficient evidence to prove the company actively controlled his employment or that it failed a duty to step in and protect him when it had actual knowledge that his employer was ignoring an obvious safety risk;


• The evidence was insufficient to show his illness was directly caused by the company's breach of maritime duty law;


• The trial court judge excluded all evidence that the shipyard knew of the asbestos hazards; and


• The verdict should not have included punitive damages.

The supreme court found that there was sufficient evidence to prove Exxon's negligence and liability and that punitive damages were appropriate. However, the supreme court found that the circuit court's decision to bar evidence regarding the shipyard's knowledge of asbestos dangers was an error. The justices indicated the shipyard's knowledge of the problem and any steps it took could have limited Exxon's liability.

Lawyers for the plaintiff have said that they intend to appeal the decision to the United States Supreme Court, if necessary.

Continue reading "$17.5M Mesothelioma Verdict Tossed by State High Court " »

No matter how aggressively defendant asbestos manufacturers try to argue that Chrysotile asbestos doesn't cause mesothelioma - they're wrong.

Our mesothelioma lawyers understand the best example of this defense involved a consortium of three joint compound firms who made the case during an estimation hearing in their Chapter 11 bankruptcies. Each of the companies - Bondex International Inc., Specialty Products Holding Corp., and RPM International - filed bankruptcy as they faced thousands of asbestos injury and wrongful death claims.

An estimation hearing is one in which a judge will determine how much money the companies must set aside to meet their liability to cover current and future asbestos claims. Debtors say they will only need about $30 million, while plaintiff attorneys say it is likely to be closer to $55 million.

Part of closing that disparity involves figuring out to what extent the defendants can be expected to be found liable for each claim, which is why the home improvement products firms are attempting to argue that the asbestos their goods contained wasn't actually all that dangerous.

This is not the first time we've heard the argument about Chrysotile asbestos being somehow safer than other forms, and it probably won't be the last. Chrysotile asbestos, sometimes called white asbestos, accounts for roughly 95 percent of the asbestos present in the U.S., according to the Occupational Safety and Health Administration. Despite a slightly differing chemical make-up from the amphibole group of asbestos, it is no less dangerous - a fact repeatedly underscored in numerous studies. Most recently, a professor of occupational epidemiology at the University of Wisconsin conducted a study last year, concluding definitively, "Chrysotile asbestos, along with all other types of asbestos, has caused mesothelioma, and a world-wide ban of all asbestos is warranted to stop an epidemic of mesothelioma."

Yet the defendants in the bankruptcy case brought a medical doctor specializing in epidemiology to testify that Chrysotile asbestos is "much less likely" to cause mesothelioma, a long-latent and fatal cancer. He testified that in most cases, Chrysotile asbestos in and of itself will not cause mesothelioma.

It is noteworthy that the doctor didn't actually view any of the lung tissue samples of mesothelioma plaintiffs even though he testified that if he had, he suspected he would find more than Chrysotile asbestos present.

Plaintiffs, however, brought their own medical doctor specializing in occupational medicine. She testified that there is no question that Chrysotile exposure leads to cancer of the lining of the lung. She knows this because she personally conducted multiple studies of sheet metal workers in the 1990s, concluding hands-down that Chrysotile asbestos can and does cause mesothelioma.

She said this point has been "very well established."

At this the defense put forth another common defense, that of "safe level of exposure." This was a tactic in which they asserted plaintiffs couldn't possibly have contracted mesothelioma from their product alone. Their joint compound products were manufactured for do-it-yourself renovation projects. They argued that these were not cases in which people would have been exposed to the asbestos day-in, day-out over the course of several years.

However, as the plaintiff's epidemiologist correctly pointed out, there is, in fact, no safe level of exposure.

Continue reading "Asbestos Firms Wrong: Chrysotile Asbestos Causes Mesothelioma" »

An attempt is being made in Maryland to kick start some 13,000 asbestos cases that had been set aside by the courts. Fighting through a bottleneck of cases would be a victory in this case, as it's too often a battle just to get a plaintiff's day in court.

The effort, as our mesothelioma lawyers understand it, involves a proposal to have a number of those old cases lumped together based on similarities. These are cases that were previously put on the back burner because plaintiffs alleged asbestos exposure, but not sickness. Plaintiff attorneys say many of those individuals have since fallen ill, and now hope to have their cases heard together. It may ultimately reduce the damages per litigant, but it would ensure their cases could be heard sometime in the next decade, and the grouping would likely bolster their chances of a win.

The Baltimore Circuit Court has yet to rule on the proposal. However, the action is being sharply contested by defendant lawyers for allegedly bypassing certain due process procedures in an effort they contend is intended to pressure them into resolving potentially weaker cases.

Baltimore was one of the first cities to establish a two-tiered, priority system to address the flood of mesothelioma and asbestos cases, and whatever resulting decision is made could have a potential impact on other cities that followed Baltimore's lead.

To better understand what's happening in Baltimore, we have to understand the environment in which the two-tiered priority system was established. Back in the late 1980s and early 1990s, we were just beginning to see a massive influx of asbestos litigation.

The reason for this timing was because use of the material - long known to pose deadly health hazards to those who breathed in the fibers - dropped off significantly by the end of the 1970s. Prior to that, it was a very common component of many items - from car parts to home roofing. But sickness from asbestos exposure - either in the form of mesothelioma or asbestosis - does not become apparent until many decades later. So by the late 1980s and 1990s, we were beginning to see cases from individuals who had been exposed in the '30s, '40s and '50s.

During this time, there was also an increased awareness of what was making these people sick, as well as understanding that many of these individuals and their families deserved to be compensated for that exposure.

Consolidating those cases in order to aid the court in moving forward makes a lot of sense. In fact, if taken individually, these cases could potentially take three to four decades before all are heard. That is time asbestos illness sufferers don't have.

The two-tiered system was a way for the courts to give the sickest plaintiffs priority. This made sense too, but it also all but guarantees that some cases won't get heard at all. In fact, cases from the "back burner docket" are only heard at a rate of a few each year. And many of those people have since grown ill or even passed away.

Ultimately, it will come down to which plan the judge believes will work best in resolving the most cases, while still preserving the integrity of the justice system.

Continue reading "New Life for Old Asbestos Cases?" »

CBS Corporation, a machine manufacturer who used to supply asbestos-laden turbines to the U.S. Navy, is seeking immunity in a mesothelioma case, arguing that it was acting under federal authority.

Plaintiff mesothelioma lawyers in Ruppel v. CBS Corp. counter that they are simply alleging a failure to warn - something the Department of Defense would not have impeded, even if the company were acting under the direction of federal authority.

Our mesothelioma lawyers understand that part of the defense tactic has involved trying to keep the case in federal court, appealing even after a federal judge stripped himself of authority and remanded the case back to state court.

However, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit in Illinois has determined that the defendant meets all criteria necessary to be considered for immunity.

The plaintiff in this case is still suing several dozen others for his mesothelioma diagnosis, so he may still have a good shot at recovering damages. However, this case sets a troubling precedent for former members of the military who have been diagnosed with mesothelioma. It makes it all the more critical for plaintiffs to hire a skilled attorney.

The plaintiff here alleges that he developed mesothelioma as a result of his exposure to asbestos while serving in the Navy between 1946 and 1954 and then later when he worked on an aircraft carrier as a civilian employee between 1957 and 1971. His complaint against CBS, formerly Westinghouse Corporation, was initially filed in state court, but the company made a successful argument to have it moved to the U.S. District Court under the federal officer removal statute, 28 U.S.C. 1442(a)(1). This law says that certain lawsuits may be moved to federal court if the defendant was acting under a federal officer and has a colorful (or genuine) federal defense.

The plaintiff moved to have the case remanded, and the U.S. District judge did so, without giving the company a chance to respond. (Local rule provided the company 30 days to respond, but the judge made his ruling just nine days later.) The judge reasoned that the plaintiff was suing on the grounds of failure to warn about the dangers of asbestos - for which there is no federal defense.

However, the appellate court reversed that order based on several factors. The first is that while the plaintiff does mention failure to warn in his complaint, the actual issue is CBS' duties to the Navy - not its failure to warn those who came in contact with the asbestos-containing material. The appellate court also found that the company does have a valid legal argument in claiming immunity as a federal contractor.

This wouldn't necessarily apply to all cases, but the defense is saying that the Navy demanded the products be made with asbestos, despite knowing the dangers. One former manager of the company testified that the Navy "explicitly required asbestos" in its turbines, which would have made it impossible for the company to comply with both the Navy and state tort law.

Continue reading "Ruppel v. CBS Corp. - Company Seeks Immunity for Acting Under Federal Authority" »

Ohioans may soon have a greater uphill battle if they seek justice following a mesothelioma diagnosis.

Recent news reports indicate the state senate has approved a measure that makes it more difficult for mesothelioma victims to take their cases to court. Supporters countered that the measure "evens the playing field." You can bet the "supporters" are not innocent citizens victimized by this terrible cancer.

Our plaintiff mesothelioma lawyers understand that House Bill 380, sponsored by a Cincinnati Republican, would require that a person who files an asbestos claim must list every other entity they previously sued - including federal bankruptcy trusts. Not only that, but plaintiffs would have to provide detailed and specific evidence that they used in those cases. Further, if a defendant had some reason to suspect the plaintiff was withholding pertinent information or that he or she did not sue another entity they should have, the defendant could petition the judge to delay the trial.

The proposed law stems from the mistaken belief that there are an abundance of mesothelioma patients who are attempting to game the system by suing as many different entities as they can, in an effort to collect multiple damage awards. Supporters say they want to prevent "double-dipping" by limiting the amount a defendant should be made to pay to the share of the judgment for which the defendant is deemed by a jury or judge to be at fault.

However, the truth of the matter is that mesothelioma patients and their families don't have much time left. The disease takes years to develop, and once it is diagnosed, it progresses rapidly and is fatal. Overwhelmingly, that sought by those who are dying is not greed, but justice. And the sad fact is that the companies responsible too often engage in an endless series of delays. In fact, extensive delays are already a primary tactic of these firms.

So to allow them additional freedoms in this regard - while placing extensive obligations and restrictions on plaintiffs - is deeply troubling.

This comes after legislation passed a decade ago which also increased the bar for mesothelioma sufferers to take their cases to court. At the time that measure passed, there were about 40,000 asbestos cases that were pending in Ohio courts. Roughly 90 percent of those ended up being dismissed following passage of that law because plaintiffs weren't able to meet their new burden of proof.

Some have called this newest measure further evidence of a "war on Ohio workers."

If this measure does pass in Ohio, we might expect to see plaintiffs who might otherwise file there seeking a way to file in a different jurisdiction. We certainly hope this is not a move that will catch on in other states.

Still, it's not final yet. It's pending final approval of the House for slight changes made in the Senate, after which it will reach the governor's desk. This is expected to happen just before the close of the two-year legislative session.

Continue reading "Ohio Senate Passes Troubling Asbestos Lawsuit Bill" »

Asbestos was used in a huge number of products and building materials throughout the 20th Century, and as such, there has been a global scourge of mesothelioma cases, which develop directly from airborne exposure to the substance.

This prompted a flood of litigation, which our mesothelioma attorneys are continuing to aid in handling to this day. What you may not realize is that it was not just individuals who were impacted by this awful disease.

Schools, local governments and businesses continue to feel the impact in the form of financial hardships required to renovate or demolish properties that contain asbestos. Environmental protection agencies - both federal and state - have very specific rules on how this type of work must be done and how the materials must be handled, and it can be very expensive.

In some cases, these entities have sought legal relief from asbestos settlement trust funds, which were created by numerous manufacturers of asbestos products. These trust funds were established through bankruptcy cases. They allow corporations to continue operating, while handling claims of negligence resulting from their use of the deadly material for decades - despite knowing the risks.

One such case that has been going on for some time is Michigan State University, et al v. Asbestos Settlement Trust. This trust was established through a bankruptcy case back in 1996 by Celotex Corporation and its subsidiary, Carey Canada, which produced various building materials made of asbestos. The trust was founded for the sole purpose of handling and paying out claims for both bodily injury as well as property damages.

Several universities filed for compensation from the trust, as a number of their campus buildings contained asbestos material. These schools were: Michigan State University, The University of Cincinnati, Claremont McKenna College, Rochester Institute of Technology, Prince George's College and Fairfield University.

Initially, the trust denied these claims on the basis that they did not meet the legal standard required for a pay-out. As a result, the colleges objected and the trust went to the bankruptcy court for review.

Then, a very similar case, Asbestos Settlement Trust v. City of new York (In re Celotex Corp), seemed to settle the matter. This case held that these organizations were eligible to receive payment under the terms by which the trust was founded.

The trust agreed to pay the colleges, and did so. Afterward, the trust attempted to dismiss the adversary proceeding pending in bankruptcy court by the colleges. However, the schools objected on the grounds that the interest rate was not sufficient and that the damages should have been higher.

The bankruptcy court determined that the terms of the trust didn't require it to pay interest, and the adversary proceeding was dismissed without prejudice. Still, this allowed the colleges to pursue damages through another claim in bankruptcy court.

The colleges then sought relief from an outside court, one that would allow the case to be heard by a jury. The bankruptcy court denied that motion, pursuant to 11 U.S.C. 524(g).

The colleges then appealed to the district court, which dismissed the claim. Then another appeal went to the Eleventh Circuit Court of Appeals, which ruled on the matter last month. In that case, the court.

Although the case is somewhat complex, what businesses can take away from this is that they too may seek relief in the form of litigation.

Continue reading "Michigan State University, et al v. Asbestos Settlement Trust: Corporations Can Also Sue" »

The wrongful death claim filed by the widow of a mesothelioma victim will be allowed to proceed, following a 5-2 ruling by the Supreme Court of Virginia.

Our mesothelioma attorneys understand that the case, Dorthe Crisp Gibbs v. Newport News Shipbuilding & Drydock Co., had run into a snag over the state's workers' compensation laws.

Virginia's Workers' Compensation Act holds that all workers injured on the job in that state are to seek remedy through the Workers' Compensation Commission. Even injuries that occur outside the state may fall under the purview of the commission, provided the business contract was held in Virginia. The only time an employer could be civilly sued for compensation would be if that company did not purchase workers' compensation insurance.

All of this is very straightforward. But here's the catch: While the plaintiff's husband in this case did work in Virginia at the time of his exposure and the suit was against a private company in that state, the man actually worked for the Navy. It had previously been determined by the courts that the Navy didn't fall under the purview of this law.

Lower courts had been divided on this issue, but the final ruling from the state Supreme Court affirms the fact that Navy employees wouldn't fall under the jurisdiction of state law in this regard.

Here's what happened:

A man named Kenneth Gibbs was a U.S. Navy electronics technician. In the 1960s, the Navy commissioned a Virginia company, the Newport News Shipbuilding and Drydock Co., to build two nuclear submarines. This took several years, and the vessels cost about $46 million each. Six months before the completion of these vessels, Gibbs was sent with a Navy team to conduct inspections and testing on the ships. During the course of this work, Gibbs regularly came in contact with asbestos.

In 2008, after being given a diagnosis of mesothelioma (caused solely by asbestos exposure), Gibbs filed suit against the shipbuilding company. After he died in 2009, his wife continued the case as a wrongful death action.

However, the shipyard asserted the state's workers' compensation act provided exclusive remedy to the claim. The shipyard contended that both Gibbs and the Shipyard were statutory co-employees of the Navy, and as such, the exclusivity provision was applicable. Initially, the lower court agreed. However, the Supreme Court overturned this ruling, contending that no party in the case proved that the Navy had accepted the provisions of the act, or was in any way subject to it.

As such, Gibbs' widow was given the green light to move forward with her civil litigation.

Many states have provisions about how workers' compensation may affect a civil claim, if the latter can be filed at all. Consider that workers' compensation will only grant you recovery from an employer, not a manufacturer. Further, there are certain types of employees who are not eligible for workers' compensation, namely, independent contractors. Plus, workers' compensation claims are often subject to certain time constraints, and they tend not to be as lucrative for the plaintiff as civil litigation.

You should always speak with an experienced attorney before you file either one.

Continue reading "Mesothelioma Litigation Can be Impacted by Workers' Compensation Claims" »

Our mesothelioma attorneys know that these cases are highly complex. Families must choose a law firm with the resources and experience to build these cases for the courtroom while demanding victims are compensated by corporations facing a barrage of litigation for asbestos exposure that occurred decades ago.

Those who have been diagnosed with mesothelioma have neither the time nor the energy to cope with legal missteps or mistakes. That is why it is critical to choose an experienced law firm that dedicates a significant portion of its practice to mesothelioma litigation.

A recent ruling out of Washington illustrates how one oversight can topple an entire case. The case, Barabin v. AstenJohnson, Inc., was brought first by Henry Barabin and later, after his death, was carried on as a wrongful death suit by his widow.

Mr. Barabin worked at a papermill from 1968 through 2001. From the time he started the job until about 1984, he routinely worked with dryer felts that were made with asbestos. Those felts were manufactured by two different companies, Scapa Dryer Fabrics Inc. and AstenJohnson Inc. In addition to using the felts in the course of his job, he also, with permission from his employer, took portions of the fabric home to use in his garden. He had no idea that doing so put himself and his family at grave risk for mesothelioma.

In 2006, just five years after he had retired, Mr. Barabin was diagnosed with mesothelioma, and he and his wife filed suit in U.S. District Court in the Western District of Washington.

During the course of the trial, one of the industrial health experts that was called to testify on behalf of the plaintiff was reportedly excluded from the witness list by the judge, who stated the individual had "dubious" credentials and was not well-qualified to speak as an expert with regard to paper mills and dryer felts. Later in the proceedings, however, the judge changed his mind, and allowed the witness to testify.

In the end, the Barabins were awarded nearly $10 million in punitive damages.

But the joy of that win was short-lived when the defendants requested a new trial, on the basis of the fact that the court had failed to conduct a Daubert hearing prior to allowing the "expert" witness to testify. Named after the Daubert v. Merrell Dow Pharm case of 1993, such hearings are held before a judge, who must determine the validity of so-called expert testimony. Such hearings can be held for witnesses of either side, and are done prior to trial, as a determination of what the jury will be allowed to hear.

The idea is to vet the scientific principals, methodologies or reasoning of a witness who claims to be an expert. The court has a vested interest in making sure juries don't give more weight to the testimony of witnesses whose methods aren't based in solid science, or who is inexperienced in the field or otherwise unqualified to testify.

It's not uncommon for defendants in these cases to fight liability verdicts tooth and nail, and this was one of several points raised. While the District Court affirmed the earlier decision, a three-judge appellate panel ruled that the oversight was serious enough to warrant a new trial.

Which means the family must endure the ordeal all over again and hope for a similarly positive outcome.

Continue reading "Barabin v. AstenJohnson, Inc: Daubert Hearings in Mesothelioma Cases " »

A U.S. District judge in Pennsylvania handed down a ruling that could impact future mesothelioma cases.

Plaintiff mesothelioma lawyers understand that Mack v. General Electric deals specifically with maritime law issues and whether those who worked on Naval vessels have the right to sue manufacturers of certain parts for exposure to asbestos. It's an issue that has divided state and federal courts.

The case started as a single plaintiff suing for mesothelioma due to asbestos exposure on the ship. It has been consolidated into an expansive action that spans several districts.

The judge dealt a blow to the plaintiffs in his most recent ruling, which found that a ship is not a product for the purposes of product liability cases and further, those who manufacture the components of those ships don't have a duty to warn users about hazardous materials, such as asbestos, because those users are considered "sophisticated."

By allowing manufacturers to use this defense, at-fault companies can claim that certain individuals, in this case, Navy veterans, don't have the right to sue. However, the judge did rule that such a defense may only be applied to negligent failure-to-warn claims, as opposed to claims that the warning was somehow defective or inadequate.

Additionally, the judge rejected the standard of defense outlined by the "sophisticated purchaser" theory. This is good news because it would have released manufacturers of liability if they adequately warned the user about liability. The judge ruled that to adopt this standard would have been to essentially discourage individuals to join the Navy or work at sea, which could ultimately have an impact on maritime commerce. Why does this matter in a liability case? Because the whole purpose of maritime law is to:
1. Protect workers at sea from certain hazards and perils;
2. Protect and promote commercial activity.

The second aspect the court ruled upon that will be considered of importance is the classification of Navy ships as not being a product, as defined in product liability law. Up until now, no federal or state courts had addressed the issue of whether a Navy ship could be considered a product. A few state and circuit courts had previously looked at the issue of whether other types of vessels could be considered products, but those conclusions were inconsistent.

In this case, the judge ruled that to impose liability on a shipbuilder for thousands or tens of thousands of assembled products that were made according to Navy guidelines would cause what he said would be an unmanageable burden that would likely discourage the entire shipbuilding industry.

Instead, the judge said the manufacturer - not the builder - could face liability claims.

Still, the judge refused a summary judgment requested in this case by the defendants, saying at this point, the defendant had presented no evidence to prove that those seeking damages were, in fact, sophisticated users.

Continue reading "Mack v. General Electric Ruling Could Impact Future Mesothelioma Cases" »

Two men who reportedly turned a New York farm and wetlands into their own personal asbestos dump site are now facing years behind bars, according to various local news reports. In fact, it is believed they dumped some 60-million pounds of asbestos-containing debris at the site.

Mesothelioma lawyers know that not only were these acts irresponsible, they posed a huge health risk to both employees and residents in the immediate vicinity. Asbestos is the known cause of both asbestosis and mesothelioma, which are both deadly and preventable.

While asbestos isn't widely used in the U.S. any longer, it is still found in many older structures, remnants of a time when it was used in many different kinds of building materials, from floor to roofing to insulation. The cost of removing this deadly toxin has led many companies -- and far too many asbestos removal agencies -- to cut corners, which is creating a new generation of risk for all involved.

It isn't especially harmful unless disturbed, causing the fibers to become airborne. Because there is no "safe level" of asbestos exposure, contractors, building owners and others are required to dispose of it according to very specific safety guidelines.

According to local media reports, the two primary offending individuals were the owner of a nearly 30-acre farm and the owner of a solid waste management company. Others were implicated as well.

According to federal authorities, the defendants reportedly transported the debris from New Jersey. They dumped it at the site after putting it through an industrial shredder - failing to remove the asbestos first.

During the course of their operation, thousands of tons of construction debris were dumped onto the farmland and on land that is designated federally-protected wetlands. None of the individuals involved had a permit to carry out such an operation.

When the New York Department of Environmental Conservation caught wind of what was happening, those involved allegedly forged a permit, as well as the name of a DEC official on that permit. Authorities said they also obstructed justice by hiding and destroying numerous documents after said documents were subpoenaed by a grand jury.

In doing so, the individuals were not only found guilty of conspiracy to defraud the U.S., they were found guilty of violating the Clean Water Act and Superfund laws. If you aren't familiar, the latter was enacted in 1980 as the Comprehensive Environmental Response, Compensation and Liability Act. It was amended in 1986 and again in 2002, and essentially seeks to clean up uncontrolled or abandoned hazardous waste sites. When individuals commit illegal dumping of hazardous materials, such as asbestos, the government in turn must take responsibility to clean it up so that it no longer poses a substantial risk to those in the vicinity.

These charges carry maximum penalties of five years each, along with a fine of whichever is the greatest among:

• $250,000;


• Twice the gross gain of the defendant;


• Twice the gross loss of the victim.

While the majority of mesothelioma cases involve individuals who were exposed to asbestos during the course of their work or lives many years ago, this case demonstrates unfortunately we will continue to see such cases for many years to come.

Continue reading "Men Convicted of Criminal Asbestos Violations in New York" »

Two New Yorkers - including a former pro-football player - are facing federal criminal charges accusing them of numerous violations of the Clean Air Act, relating to three projects in which they are accused of improperly handling asbestos.

Our mesothelioma attorneys understand that the charges they face carry a maximum of 20 years in prison and a fine of $250,000.

Now, on the surface, it would hardly seem fair that a poor job on a construction might warrant a 20-year prison sentence. But it makes a lot more sense when you consider that it will probably take at least that long to know whether their actions in exposing others to asbestos may have resulted in a fatal mesothelioma diagnosis.

Mesothelioma, which is a cancer of the lining of internal organs, is caused by airborne asbestos and is not typically detected until decades after the initial exposure. This case is indicative of a phenomenon that we've seen in recent years. In far too many cases, contractors improperly remove asbestos, exposing employees and innocent bystanders to risk. In other cases, asbestos removal companies are cutting corners, not properly handling or disposing of asbestos, and likewise exposing victims to undue risk.

While asbestos isn't formally banned in the U.S., there are strict regulations on how it must be handled. Still, criminal prosecution for violations are relatively rare.

The majority of mesothelioma litigation focuses on a monetary award or settlement. The executives and CEOs of the companies that sickened hundreds of thousands of people back in the 1950s, 60s and 70s will likely never see a day in prison. But these companies are only now facing the liability, when victims are diagnosed decades after exposure.

According to the U.S. Justice Department Press release:

Sean P. Doctor, a former Buffalo Bills fullback, and Raj Chopra, both of Grand Island, N.Y., owned two companies - S.D. Specialty Services, LLC and Comprehensive Employee Management Inc.

From the summer of 2009 to the spring of 2011, prosecutors say the two conspired to defraud the Environmental Protection Agency, as well as violate the Clean Air Act, by using a 40-yard closed container in the 1800 block of Love Road to improperly transport and keep asbestos waste material.

Specifically, the two oversaw the transportation of asbestos from various cites to the waste container, where other asbestos waste was contained. None of this was done properly or in accordance with specific guidelines set forth by the Clean Air Act, according to the allegations.

Why wouldn't they comply with the law?

In short, it's cheaper - the same reason so many other companies continued to use asbestos products long after they knew it was harmful to their workers and consumers.

In addition to these actions, the two are also accused of committing insurance fraud by failing to properly classify workers as being employed to handle asbestos waste. The reason they would do this is because by classifying these employees as clerical workers, as opposed to asbestos removal workers, they could pay reduced insurance premiums. Ultimately, this resulted in a savings to the companies of about $195,000.

Doctor and the company are accused of conducting numerous asbestos abatement projects - one for a park shelter in the City of Buffalo and several more for vacant homes on Grant Street - for which he did not follow proper procedure.

The two were indicted after a multi-agency investigation that involved the EPA's criminal division, the New York State Department of Environmental Conservation Police, the New York State Department of Labor and the Asbestos Control Bureau.

Specifically, the two are charged with:

• Conspiracy to defraud the U.S. and violate the Clean Air Act;


• Conspiracy to commit mail fraud;


• Substantive counts of mail fraud.

Continue reading "Two Business Owners Criminally Charged With Violating Clean Air Act" »

Mesothelioma patients for years have been seeking compensation from asbestos manufacturers and companies that routinely used asbestos in the manufacturing process.

Our mesothelioma attorneys understand some are hesitant to pursue legal action, based on the sometimes arduous litigation process, particularly the extensive delay tactics deployed by the defendants. But as we discussed recently on our Mesothelioma Lawyer Blog, seeking legal counsel is the first step in joining the fight. A nationwide support system, including legal, medical, emotional and spiritual guidance, offers hope to victims and families. As of mid-2012, there were 164 clinical trials racing to find a cure for this deadly cancer.

In fact, treatment for all forms of cancer is steadily evolving -- and often getting much more expensive. A new study, published by The American Journal of Managed Care, projects that costs for cancer treatment are expected to skyrocket in every state in the country. Conducted by researches at the Centers for Disease Control and Prevention and RTI International, the study projects that costs are expected to rise by between 34 percent and 115 percent by 2020.

Florida and New York were among the states expected to see the greatest increases. Florida patients will see an overall increase of about $25 billion, while patients in New York can expect to see an increase of approximately $17.5 billion.

California, the state with the highest projected increases, will see cancer treatment costs jump my an astonishing $28.3 billion.

These costs will be especially pronounced for those suffering from rare and aggressive cancers, such as mesothelioma.

The researchers employed cancer prevalence data from 2004 through 2009, as provided by the Medical Expenditure Panel Survey, as well as information from the U.S. Census Bureau population forecasts. They then calculated how many people from each state are going to need treatment in the next eight years, and what the overall cost of that treatment is expected to be.

These cost increases varied from state-to-state, but all saw a projected increase. Even in those select few areas where cancer is expected to decline, the costs for treatment still shot up.

Florida is expected to have one of the highest increased cancer rates, with the number of people with cancer diagnoses expected to increase by more than 350,000 by 2020.

Cancer-related medical costs are already a significant portion of overall medical costs in the U.S., particularly for those who are older than 65.

Some of those costs may be offset by health insurance or publicly-funded Medicare, but it's not always something all mesothelioma patients can count on. Even those who do can expect that they will bear the burden at least some of those expenses.

For mesothelioma patients, it's not a battle they should fight alone, considering almost every case is caused by the negligence of a corporation or government entity.

Asbestos was widely used in a large array of products through the 1970s. While it's no longer used as frequently, it's still not legally banned in the U.S. Mesothelioma, the fatal cancer that is caused by inhaling asbestos fibers, is typically diagnosed decades after exposure. Despite what some defendants have attempted to claim, there is no "safe level" of asbestos exposure.

Although we have no known cure for mesothelioma at this point, research has been ongoing, and we are hopeful. But in the meantime, increasing financial burdens will be placed on the shoulders of those who are already fighting for their lives - and their families.

Our mesothelioma lawyers have had continued success in helping mesothelioma sufferers and their families obtain compensation for their illness. You are entitled to seek compensation for treatment costs, loss of income, loss of consortium, pain and suffering and other expenses.

Continue reading "Mesothelioma, Cancer Treatments, Expected to Double By 2020" »