Superstorm Sandy Brings Asbestos Woes

The victims of Superstorm Sandy have seen enormous loss and devastation. Now, survivors need to recognize the risks of asbestos exposure.

The storm has claimed over 100 lives in the U.S.–mostly in New York, New Jersey and Pennsylvania. Over a hundred houses and housing units were destroyed, as witnessed by many news reporters throughout the New York/New Jersey area.  We are talking about $62 billion and counting in damage and other losses in the country because of this latest storm.

Massive construction debris from Superstorm Sandy likely means thousands of tons of asbestos laden debris. (AP Photo)

To put Superstorm Sandy in perspective, Hurricane Katrina in 2005 left $128 billion damage in its wake, adjusted for inflation in 2012  dollars. In the Caribean, Sandy left no less than $315 million in damage.

A 2011 tornado in small town Joplin, Missouri left behind 2,600 tons of asbestos debris.

Contrast that one little community with all of the large communities, including the greater Manhattan area and the sizable New Jersey cities hit by Sandy. Linda Reinstein, president of the nonprofit Asbestos Disease Awareness Organization. “Do the math, and we can recognize that we have a significant public health risk with Hurricane Sandy.”

Along with schools and buildings, thousands of houses have water and wind damage, causing a spike in risks of exposure to various toxins. Asbestos related injury is one of the greatest concerns. Construction debris and waste likely contain microscopic asbestos fibers. Because these particles are virtually impossible to detect to the naked eye, people can unwittingly breathe it and ingest it. After time, mesothelioma or other severe medical conditions is a common result.


Asbestos/60 Million Pounds of Debris Illegally Dumped On Farm

If you had 60 million pounds of debris with asbestos, where might you look to offload it? How about a farm? Better yet, how about one with wetlands and a river that runs through it? That way, the asbestos could soak through the wetlands and flow through the land via the river.

60 million lbs of construction debris dumped farm in Frankfort, N.Y. [Photo: Dept of Justice]

Well, that’s what Cross Nicastro and Dominick Mazza decided to do. Nicastro is the owner of a 28 acre farm in upstate New York. Mazza was an owner of a waste management company. Both got convicted earlier this month and face prison time and big fines. The debris was originally from a New Jersey industrial shredding machine. Asbestos was never removed from the debris.

Assistant U.S. Attorney General Ignacia Morena stated that the defendants had “flouted numerous federal laws designed to protect Americans from exposure to toxic materials when they dumped asbestos-contaminated waste into an area that included sensitive wetlands”  in a statement.

New Blood Test May Help ID Mesothelioma

Patients who believe that they may have mesothelioma may now have a new way of confirming their hunch via a blood test.  US News & World Reports article earlier this month reported on the blood test, along with a lung fluid test. The lung fluid test looks for a protein in plasma called fibulin-3 that indicates whether a person has mesothelioma, often triggered by asbestos exposure.

The article quotes study author, Dr. Harvey Pass, a professor of thoracic oncology at NYU Langone Medical Center in New York City: “In the mesothelioma patients, fibulin-3 was four to five times higher than in asbestos-exposed individuals,”

Results of the study appear in the Oct. 11 issue of the New England Journal of Medicine.

This cancer originates in the lining of the heart, abdomen, chest, and lungs. Mesothelioma is a disease prevalent among individuals who have worked with asbestos or in locations where exposure to asbestos was likely. Smoking increases the risk of mesothelioma.

The deadly material has been used in manufacturing heat resistant materials, often used for construction/plumbing projects. Asbestos has also been used in automotive/truck parts–most notably the brake components, according to the U.S. Environmental Protection Agency.

Dr. Pass recognized that mesothelioma could take years, if not decades, to developer after asbestos exposure. Often, once diagnosed, mesothelioma patients would face grave prognoses of 1 year or less for survival. Symptoms are coughing, chest pain, and shortness of breath.

An earlier detection by use of a “biomarker” may allow for more effective treatment of mesothelioma.

EPA Pushes for Tougher Standards for Asbestos Cleanup

According to an Associated Press article, we may soon see tougher standards in place for federal cleanup of asbestos contamination. The proposed standard emerged after the EPA’s analysis of a Montana town revealed that even the smallest amounts of asbestos can result in lung problems. In Libby, MT, the Environmental Protection Agency concluded that trace amounts of asbestos dust had killed hundreds of people. To rid the area of that dust, the standard would need to be 5,000 times stricter than the standard used for previous cleanups.

A proposed standard for federal cleanup of asbestos contamination in a Montana town concludes that even a tiny amount of the material can lead to lung problems – a benchmark far more rigorous than any in the past and one that the industry says could force expensive and unnecessary cleanups across the country.

The Environmental Protection Agency’s new proposal for the northwest Montana town of Libby, where asbestos dust has killed hundreds of people, would be 5,000 times tougher than the standard used in past cleanups addressing airborne asbestos.

The Government Accountability Office has said the cleanup standard could impact about 200 or so industrial sites in 40 states that also received asbestos-tainted vermiculite from Grace’s Montana mine. More than 20 of those sites, posing the highest health risks, have already been cleaned once. Most of those were processing plants where the mineral was heated at high temperatures so it could expand and be used for insulation in millions of homes.

The GAO and asbestos experts said the EPA risk assessment could force more cleanups. And Grace representatives and health officials said the EPA proposal could apply to other types of asbestos found in communities across the country.

While companies such as Grace may understandably want to resist higher cleanup standards, the Fed’s focus is on curbing the number of asbestos related deaths and injuries.

Widow of SeaTac Worker Awarded $475K for Asbestos Related Injury & Death

Donald Potts worked at SeaTac Airport for a major construction project between 1970 and 1972. During that time, his wife Lorena claims, he inhaled airborne asbestos particles. In November 2012, his doctor diagnosed him with mesothelioma, an asbestos related cancer.  At 71 years old, he passed away on January 13, 2011. Later that year, his wife and the Estate of Donald Potts commenced trial against the Port of Seattle.

However a few weeks ago, the Port of Seattle Board of Commissioners decided that they would save the Port money by settling with the plaintiffs for $475,000.

In the past several decades, at minimum two other cases involve the Port for penalties related to hazardous asbestos exposure at SeaTac.

What is interesting and important to note about the Potts case is that the alleged exposure dates back to the early 1970’s with a relatively recent diagnosis and death of the mesothelioma patient. This suggests that other victims of asbestos exposure have issues ripe for litigation.

Mesothelioma Victim Awarded $2.1 Million Verdict Against, Defeats Parts Manufacturer

When James Lovelace was 10 years old, he loved to help his father, a big-rig truck driver, service his trucks. This included handling brake components that contained asbestos. Now 66 years old, Mr. Lovelace is a victim of the malignant cancer, mesothelioma.

The brake parts manufacturer, Pneumo Abex, said to the jury, that Lovelace was exposed to asbestos in a lot of other ways besides working with Abex brake parts. In other words, Defendant Abex’s claimed that it wasn’t the manufacturer’s fault that Lovelace suffered from mesothelioma. Rather, it pointed to the general exposure to the deadly material in his house. Through his childhood, Lovelace breathed and touched items that carried asbestos dust from his father’s workplace as a forklift operator at Johns Manville asbestos cement pipe plant in Stockton, CA.

After a three week trial, the jury did not buy much of Abex’s arguments. It turned around and awarded Mr. Lovelace $1 million for future noneconomic damages, $500,000 for past noneconomic damages; $430,000 for future economic damages; and $144,000 for past economic damages.

The SKWC asbestos injury attorneys congratulate Mr. Lovelace and his team of trial lawyers for this important victory.

Asbestos Epoch at the Capitol Ends $173 Million Later

This week, the Huffington Post reports on the official conclusion of an epoch battle related to asbestos found in the Capitol Hill underground system. Employees who had been exposed to asbsestos for years

The Office of Compliance (OOC) closed out the administrative complaint it filed six years ago. The complaint included claims against the Architect of the Capitol (AOC) for its failure to eliminate safety and health hazards found in 2000. Excessive asbestos and heat as well as falling concrete were cited as hazards that had been discovered over a decade ago in the underground tunnel that provides steam and chilled water to Capitol Hill.

After well over $100 million, the OOC is content in AOC’s fulfillment of its obligations.

However, workers who continue to suffer from the years of exposure to asbestos do not find much to be happy about with the conclusion of OOC’s complaint. They point out that it took about six years from the time when the hazards were revealed before the OOC did anything.

The OOC’s general counsel, Eveleth, said, “Filing the complaint sent a message that we will not put people’s lives at risk in circumstances when employing offices offer no viable solution for abating a very serious hazard.”

Waiting To Exhale at a Brooklyn School

A public school’s plans for asbestos abatement have the parents at Cobble Hill Elementary, a public school in Brooklyn ready to occupy the school until their claims are met. Parents were upset, when the school provided little notice about the plans to remove asbestos from the school structure.

Rather than conduct the abatement while the school children are on spring or summer break, the plan is to remove the asbestos after hours each school day. The concern is that the dust produced from the abatement project will needlessly expose the children to harmful fibers known to cause cancer and other serious illnesses.

This Friday, if the school does not change its plan, parents vow to sit in and occupy the school in protest and to prevent the start of this controversial project mid-school year.

State Supreme Court Halves Jury Verdict in Asbestos Case

Last year, a jury found in favor of a U.S. Navy sailor’s family awarding the family almost $6 million. However, a few weeks ago the Virginia State Supreme Court cut the jury’s verdict in half to $2.83 million. It held that the jury should not have been allowed to award pain and suffering damages.

Robert Hardick was a former Navy petty officer and had been a shipfitter and machine repairperson for Navy ships. Due to working conditions on Navy ships that included breathing asbestos fibers for a couple decades, Mr. Hardick died after suffering from mesothelioma at 69 years old.

The VA Supreme Court cited the U.S. Supreme Court, where it stated that a “seaman” is a broadly used maritime term. One only needed to “contribute to the function of the vessel or to the accomplishment of its mission.” Thus, the VA Supreme Court held that the trial court erred by allowing the jury to award Hardick’s family nonpecuniary damages for the wrongful death of Mr. Hardick.

Defendant John Crane Inc. expressed approval of this decision to vacate the pain and suffering and loss of society awards.

SCOTUS Pulls Plug on Plaintiffs’ Right to Asbestos Injury Claims Against Railroads

The U.S. Supreme Court has rejected a legal theory that would have given asbestos injury attorneys a new industry to attack with lawsuits.

SCOTUS ruled this past Wednesday in favor of companies involved with the design and manufacture of locomotives and their parts. The estate of the late George Corson, a welder and machinist for a railroad carrier, had sued Railroad Friction Products Corp. and Viad Corp. in Philadelphia, alleging injury from exposure to asbestos in trains and train parts distributed by the companies.

The estate’s design-defect and failure-to-warn claims were preempted by the federal Locomotive Inspection Act, the court held in a 6-3 decision authored by Justice Clarence Thomas. The decision was in line with one made by the court 85 years ago in Napier v. Atlantic Coast Line.

“(P)etitioners contend that the LIA’s preemptive scope does not extend to state common-law claims, as opposed to state legislation or regulation,” Thomas wrote.

“Napier, however, held that the LIA ‘occup(ied) the entire field of regulating locomotive equipment’ to the exclusion of state regulation. That categorical conclusion admits of no exception for state common-law duties and standards of care.”

The decision affirmed a ruling by the U.S. Court of Appeals for the Third Circuit. It had been removed from a state court to Philadelphia federal court. 

Dissenting were justices Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer. Sotomayor’s dissenting opinion said that the plaintiffs’ claim for failure to warn was not preempted, though it agreed the defective design claim was.

The federal government and the American Association for Justice were among the groups supporting the plaintiffs’ lawsuit.

“Because the right to a legal remedy for wrongful injury is a fundamental right under the Constitution, courts may not preempt such a cause of action and leave injured persons without remedy unless Congress specifically intended that result,” the AAJ’s amicus brief said.

“The mere silence of Congress in a statute not directed at railroads rather than manufacturers falls short.”

Complaints against 50 other companies were dismissed. 

About Kevin

Kevin Coluccio was recently named one of the Top 10 Super Lawyers in Washington State. He has long history of successful asbestos law cases and has a stellar reputation for getting result sfor his asbestos injury cases.