So called “FACT Act of 2013” will burden Asbestos Victims, Delay Litigation

New Asbestos Bill Will Re-victimize Asbestos Victims

Published May 27, 2013 | By Catherine Fleming | Edit



H.R. 982, the so-called “Furthering Asbestos Claim Transparency (FACT) Act of 2013,” was passed earlier last wast week.  Essentially, this “transparency” will threaten the privacy of asbestos victims. “What this bill does is allow asbestos victims to be re-victimized by exposing their health information to the public,” Rep. John Conyers (D-Michigan) said during hearings Tuesday.

The result will be to slow down asbestos cases even more, by allowing asbestos defendants to bury the trusts with information requests, regardless of the irrelevance or lack of need of such requests.

This legislation is part of the latest tactic implemented by ALEC and the U.S. Chamber of Commerce to let the asbestos industry off the hook. This strategy takes a three-pronged approach:
  • State legislation: In 2007, ALEC adopted the “Asbestos Claims Transparency Act.” Louisiana, Pennsylvania, Ohio, Oklahoma, Texas, West Virginia, and Wisconsin have seen versions of this legislation.
  • Judicial Conference: On November 22, 2010, the U.S. Chamber made a direct appeal to the Judicial Conference to change the rules governing bankruptcy law.
  • Federal legislation: In the 112th Congress, H.R. 4369 was introduced in the House on April 17, 2012 and S.3076 was introduced in the Senate on May 10, 2012. In the 113th Congress, H.R. 982 was reintroduced on March 6, 2013.

This blog post was originally published on nw-injurylawyers.com.

School Under Criminal Investigation for Using Children at Absestos Laden Site

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.

13 yr old students were some of the volunteers who helped clean up at an asbestos laden site

13 yr old students were some of the volunteers who helped clean up at an asbestos laden site

After attention was turned to this issue, the school has now indicated that it will use a certified asbestos abatement contractor instead.

Alaska company neglects to tell demolition workers about asbestos

Alaska co knew about asbestos, but asked employees to move forward with demolition

Alaska co knew about asbestos, but asked employees to move forward with demolition

The names “Copper River Campus” and “Copper River Seafoods” conjure images of pure water running through a pristine natural setting. However, Copper River Campus, the facility and building owner of buildings for Copper River Seafoods was aware of asbestos in its walls, ceilings, floors and elsewhere in the structure that it purchased in 2009 in Anchorage, Alaska.

Despite its awareness, according to U.S. Attorney Karen Loeffler, CSR put its employees in danger by allowing them to be exposed to airborne asbestos fibers, known to cause mesothelioma and asbestosis. Ms. Loeffler stated that the CRS employee, the manager who gave the demolition instructions, did not know about the presence of asbestos. The employee did not recognize the presence of the material either and went ahead with the demolition, hence putting himself in danger of inhaling airborne asbestos fibers, which can cause asbestosis and mesothelioma.

Once the Environmental Protection Agency learned of the activity, they sent an inspector to the property. The inspector determined that “Copper River Campus negligently placed employees of Copper River Seafoods and others in imminent danger of serious bodily injury, as they had no specialized training on asbestos removal, nor were they wearing personal protective equipment.” Anyone involved may have suffered serious illness due to asbestos exposure, the inspector added.

Unfortunately, this is just one of many instances of an entity willfully disregarding the safety and health of its employees, in its failure to disclose and safeguard against exposure to harmful materials such as asbestos.

$9+ Million Verdict for Asbestos Injury Victim Thrown Out

From 1968 to 2001, Henry Barabin worked at the Crown-Zellerbach paper mill. Until 1984, Mr. Barabin routinely worked around dryer felts containing asbestos, supplied to plant by AstenJohnson Inc. and Scapa Dryer Fabrics Inc. He used the felts at work, and he also took pieces home to use in his garden, according to the Court.

Plaintiff Barabin worked for decades at a paper mill. Not until 2006 did he learn that he had mesolthelioma.

In 2006, Mr. Barabin was diagnosed with mesothelioma cancer.

He and his wife sued the two companies in the Western District of Washington. Initially, U.S. District Judge Robert Lasnik excluded industrial health expert Kenneth Cohen from testifying on behalf of the Barabins. Judge Lasnik had issues with Cohen’s “dubious credentials and his lack of expertise with regard to dryer felts and paper mills.” However, Judge Lasnik later changed his mind and allowed Mr. Cohen to testify.

A jury then ruled for Barabin and awarded $9.3 million in damages. AstenJohnson and Scapa moved for a new trial, arguing that the District Court should have waited to reverse itself after further assessing Cohen’s credentials in a Daubert hearing, named for the 1993 case Daubert v. Merrell Dow Pharm.

The District Court disagreed, but a three-judge appellate panel ruled Friday that the oversight was serious enough to prompt a new trial. For the panel, Judge Johnie Rawlinson wrote the decision, “None of the Daubert factors were considered. Instead, the Court allowed the parties to submit the experts’ unfiltered testimony to the jury.”

“On remand, the District Court dutifully will make a new Daubertdetermination,” she wrote. “If the court finds that the expert testimony is, indeed, reliable, what purpose is served by empaneling a new jury and conducting another lengthy trial the outcome of which likely will be identical to the one already concluded? Mukhtar answers that query by holding that we cannot trust a District Court not to succumb to ‘post-hoc rationalization.’ But we routinely trust district courts to reassess their earlier judgments in matters of more consequence than disputes over money. Regardless, I do not share Mukhtar’s lack of faith in our district courts. Were it not for Mukhtar, I would conditionally vacate the judgment and remand to the district court with instructions to make a new Daubert determination. If the expert testimony is reliable, then the original judgment should be re-entered. If the expert testimony is not reliable, then the court should preside over a new trial.”

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.

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.

No Knowledge About Mesothelioma Until It’s Too Late

Asbestos related illnesses such as mesothelioma are particularly insidious because people often do not realize that they have the disease until decades after their exposure to asbestos. The severity of illness depends on how long the person was exposed and the amount inhaled.

Last week, the estate of a former New Mexico railroad employee sued BNSF Railway alleging wrongful death, due to asbestos exposure, of locomotive repair shop worker Santiago Riley. During 13 years of employment from 1942-1955 at railroad facilities in New Mexico and Arizona, Riley made locomotive repairs, performed various shop duties and swept floors around dusty asbestos-containing substances without any respiratory protection.

This exposure caused permanent injury and contributed to his eventual death, according to the lawsuit filed by his children. The estate seeks damages for mental and physical suffering, lost wages, medical bills and other financial losses.

An important takeaway of Santiago Riley’s story is that he and his family did not learn about his mesothelioma for years after this employment at BNSF.

Mesothelioma patients generally do not demonstrate symptoms of this disease until 20 to 50 years after their initial exposure to asbestos. Fibers that embed in the tissue surrounding the body’s internal organs, the mesothelium, usually must be present for many decades before the development of cancer. These fibers gradually accumulate and cause scarring, which leads to inflammation and cancer. Although these fibers are most often introduced into the body through inhalation, the material can also be introduced through ingestion as well. Initially, symptoms may be mild and an individual might not find them cause for alarm. However, as the cancer spreads, these symptoms become more severe and debilitating.

Recyling Company Sentenced to Pay Over $500K for Asbestos Dumps

A recent Wall Street Journal article reports that Eagle Recyling, a New Jersey recycling company was sentenced to pay a $500K criminal fine and over $70K in restitution & cleanup costs. It was found dumping thousands of tons of asbestos contaminated construction debris in Central NY.

The company pleaded guilty earlier this year and agreed to comply with environmental laws.

According to the charges and plea agreement, Eagle Recycling and other co-conspirators engaged in a multi-year scheme to illegally dump 8,100 tons of pulverized construction and demolition debris that was processed at Eagle Recycling’s North Bergen solid waste management facility and then transported to a farmer’s property in Frankfort, N.Y.  Eagle Recycling and other conspirators then concealed the illegal dumping by fabricating a New York State Department of Environmental Conservation (DEC) permit and forging the name of a DEC official on the fraudulent permit.

Peritoneal Mesothelioma Cancer Widow Speaks Out

A New Jersey widow, who recently settled for an undisclosed amount, spoke out about the death of her husband. According to court records, Randy Veraldo worked from 1978-85 as a parts handler at a Teterboro, N.J., warehouse. The job required him to unpack nautical clutch plates delivered on a near-daily basis from various suppliers. The clutch plates were said to contain asbestos, a mineral once widely used in the U.S. as a cheap insulating material but now known to cause.

Ms. Veraldo filed her lawsuit as the executrix of the estate of her late husband. He died in 2009, seven months after being diagnosed with periotoneal mesothelioma cancer.

An important takeway from this is the fact that someone who lost her loved one to a slow, but deadly disease found justice — even after many years of exposure at work to asbestos.

Prince William & Kate Middleton Shine a Light on Asbestos Abatement

When I hear “major renovation,” I think of dust and hammering for months. This is likely what’s going on as part of the overhaul of the five-bedroom apartment at Kensington Palace in London, where Prince William and his new wife, Kate Middleton, will soon settle down.

However, first thing is first. Along with significant updates (the last renovation of the apartment was 1960), “Early indications suggest that large quantities of asbestos will have to be removed, as well as work on the heating and hot water systems and electrical wiring. The extent of the work needed to turn the apartment back into a home is not yet known, but it is expected that the apartment will not be ready for occupation until at least the middle of 2013.” This was a statement made to People magazine.

The presence of asbestos in William and Kate’s future home is gaining worldwide attention, especially given the rumors swirling about regarding the possibility that Kate is pregnant.

Back in 1960, during the last major renovation of Kensington Palace, asbestos use was widespread and nothing controversial. In fact, asbestos was the material of choice for flooring, ceiling tiles, and insulation for the Palace.

Back then, asbestos was a first choice as a material due to its heat and fire retardant properties. Before 1980, in construction projects and products manufactured, asbestos was incredibly popular.

Now, however, with the Palace renovation, many more people are learning about the importance of proper abatement and containment of this lethal substance.

Back in 1960, during the last major renovation of Kensington Palace, asbestos use was widespread and nothing controversial. In fact, asbestos was the material of choice for flooring, ceiling tiles, and insulation for the Palac
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.