Monthly Archives: February 2013
Can you imagine using 13 year old students to help clean up debris at an asbestos contaminated building? That’s what a school in Ohio did, accordingy to a Huffington Post article. A neighbor who lived in a residence by the old YMCA building filmed the volunteers working amidst a cloud of dust.
The site, where volunteers that included young children, used to house a YMCA. As in Washington State, Ohio state law requires removal of asbestos by special contractors. According to Ohio EPA literature, “all facilities are required to complete a thorough asbestos survey before renovation or demolition.” Despite the state’s environmental protection agency’s finding that pipes, floor tiles, ducts, etc. were laden with asbestos, students and adult volunteers were asked to clean up the debris at the site.
After attention was turned to this issue, the school has now indicated that it will use a certified asbestos abatement contractor instead.
At a Boeing hammer shop, white powder was flaking and falling from overhead pipes. So maintenance workers re-wrapped the overhead pipes to contain the absestos insulation. These workers wore protective clothing that the hammer shop workers called “moon suits.” But those hammer shop workers, including Gary Walston, did not wear any protective clothing or respirators. While the moon suited workers wrapped the pipes, visible dust and debris fell on Gary Walston and his colleagues. To protect their tools from accumulating dust, they covered them with plastic. When Gary asked his supervisor if he could wear protective gear too, he was told “get back to work.”
Roughly 25 years later, Gary Walston was diagnosed with mesothelioma. He sued Boeing, his employer, alleging that he contracted mesothelioma as a result of his exposure to asbestos while working at the hammer shop. The trial court denied Boeing’s motion for summary judgment, and Boeing appealed.
Despite the fact Boeing’s previous involvement in workers’ compensation claims with claimants suffering from asbestos-related injuries, Boeing denied that it had any “actual knowledge” that Mr. Walston’s injuries would be “certain” as a result of the visible asbestos in the hammer shop.
Mr. Walston claimed that he presented evidence raising a material factual dispute about whether Boeing had (1) actual knowledge that he was certain to be injured and (2) that Boeing willfully disregarded such knowledge. Mr. Walston argued that he—like the employees in Birklid, Hope, and Baker—was injured as a result of being exposed to a substance at work that his employer knew was certain to injure him.
The three panel appellate court reversed the trial court’s denial of Boeing’s MSJ. Judge Marywave Van Deren wrote that Boeing workers like Mr. Walston “were not immediately or visibly injured by the exposure to asbestos.” “Nor did they complain of injuries caused from their exposure to asbestos. Walston was not diagnosed with an asbestos related disease until 25 years after the ‘moon suit incident’ in the hammer shop.”
What this ruling shows is that asbsestos injury lawyers have a steep hill to climb to educate judges and the larger public about the extreme hazards of asbestos exposure. Simply because someone is not immediately coughing or showing visible injury does not mean that their bodies have already been exposed to dangerous amounts of asbestos. Mesothelioma and other asbestos related injuries can take decades to detect, as illustrated by Gary Walston’s case. If you are ever in a situation such as Mr. Walston, please think about the longterm consequences and do everything you can to educate your employer. Keep a written journal and records of all written correspondence. Hopefully, however, you will not need these in a claim against your employer.