Asbestos and the law (United States)

Abestos and the law (United States) have a complex relationship. The use of asbestos is controlled via civil litigation, criminal prosecution, and legislation at all levels of government, and administrative regulation. Mass torts have become central to the way that American law deals with asbestos.

Civil litigation

The Manville Corporation, formerly the Johns-Manville Corporation, filed for reorganization and protection under the United States Bankruptcy Code in August 1982. At the time, it was the largest company ever to file bankruptcy, and was one of the richest. Manville was then 181st on the Fortune 500, but was the defendant of 16,500 lawsuits related to the health effects of asbestos. The company was described by Ron Motley, a South Carolina attorney, as "the greatest corporate mass murderer in history." Court documents show that the corporation had a long history of hiding evidence of the ill effects of asbestos from its workers and the public. One of many examples is a memo from Manville's medical director to corporate headquarters:[1]

The fibrosis of this disease is irreversible and permanent so that eventually compensation will be paid to each of these men. But, as long as the man is not disabled it is felt that he should not be told of his condition so that he can live and work in peace and the company can benefit from his many years of experience.

By the early 1990s, "more than half of the 25 largest asbestos manufacturers in the US, including Amatex, Carey-Canada, Celotex, Eagle-Picher, Forty-Eight Insulations, Manville Corporation, National Gypsum, Standard Insulation, Unarco, and UNR Industries had declared bankruptcy. Filing for bankruptcy protects a company from its creditors."

Asbestos litigation is the longest, most expensive mass tort in U.S. history, involving more than 8,000 defendants and 700,000 claimants.[2] Current trends indicate that the rate at which people are diagnosed with the disease will likely increase through the next decade. Analysts have estimated that the total costs of asbestos litigation in the USA alone will eventually reach $200 to $275 billion. The amounts and method of allocating compensation have been the source of many court cases, and government attempts at resolution of existing and future cases.

Asbestos-related cases increased significantly on the U.S. Supreme Court docket after 1980. The court has dealt with several asbestos-related cases since 1986. Two large class action settlements, designed to limit liability, came before the court in 1997 and 1999. Both settlements were ultimately rejected by the court because they would exclude future claimants, or those who later developed asbestos-related illnesses.[3][4] These rulings addressed the 20-50 year latency period of serious asbestos-related illnesses.

Since the bankruptcy filing of Johns-Manville in 1984, many U.S. and U.K. asbestos manufacturers have escaped litigation by filing bankruptcy. Once in bankruptcy, these companies typically are required to fund special "bankruptcy trusts" that pay pennies on the dollar to injured parties. However, these trusts do permit larger numbers of claimants to receive some kind of compensation, even if greatly reduced from potential recoveries in the tort system.

Since 2002, asbestos lawsuits in the U.S. have included the following as defendants: (1) manufacturers of machinery that are alleged to have required asbestos-containing parts to function properly; (2) owners of premises at which asbestos-containing products were installed (which includes virtually anyone who owned a building prior to 1980); (3) banks that financed ships or buildings where asbestos was installed (on the grounds that no rational lender would take a security interest in an asset without studying the risks involved); (4) retailers of asbestos-containing products (including hardware, home improvement and automotive parts stores); (5) corporations that allegedly conspired with asbestos manufacturers to deliberately conceal the dangers of asbestos (e.g., MetLife, a well-known insurance company which worked with Johns-Manville); (6) manufacturers of tools which were used to cut or shape asbestos-containing parts; and (7) manufacturers of respiratory protective equipment.

Defendants in the first category have contested liability on the grounds that nearly all of them either did not ship asbestos-containing parts with their products at all (that is, asbestos was installed only by end users) or did not sell replacement parts for their own products (in cases where the plaintiff was allegedly exposed well after any factory-original asbestos-containing parts would have been replaced), and either way cannot be responsible for toxic third-party parts that they did not manufacture, distribute, or sell. In 2008, the Washington Supreme Court, the first state supreme court to reach the issue, decided in favor of the defense.[5] On January 12, 2012, the Supreme Court of California also decided in favor of the defense in O'Neil v. Crane Co.[6] This is significant as a 2007 study found that California and Washington were the two most influential state supreme courts in the United States in the period from 1940 to 2005.[7]

In a decision from January 2014, Gray v. Garlock Sealing Technologies had entered into bankruptcy proceedings, and discovery in the case uncovered evidence of fraud [8] that led to a reduction in estimated future liability to a tenth of what was estimated.

Another area of dispute remains the so-called chrysotile-defense. Manufacturers of some products containing only chrysotile fibers claim that these are not as harmful as amphibole-containing products. As 95% of the products used in the United States historically were mostly chrysotile, this claim is widely disputed by health officials and medical professionals.[9] The World Health Organization recognizes that exposure to all types of asbestos fibers, including chrysotile, can cause cancer of the lung, larynx, and ovary, mesothelioma, and asbestosis.[10]

Removal and cleanup

Old Wailuku Post Office sealed off for asbestos removal.

Asbestos abatement (removal of asbestos) has become a thriving industry in the United States. Strict removal and disposal laws have been enacted to protect the public from airborne asbestos. The Clean Air Act requires that asbestos be wetted during removal and strictly contained, and that workers wear safety gear and masks. The federal government has prosecuted dozens of violations of the act and violations of Racketeer Influenced and Corrupt Organizations Act (RICO) related to the operations. Often these involve contractors who hire undocumented workers without proper training or protection to illegally remove asbestos.[11]

W. R. Grace and Company faces fines of up to $280 million for polluting the town of Libby, Montana. Libby was declared a Superfund disaster area in 2002, and the EPA has spent $54 million in cleanup. Grace was ordered by a court to reimburse the EPA for cleanup costs, but the bankruptcy court must approve any payments.[12]

Criminal actions

Adamo Wrecking Company

On February 20, 1973 a federal grand jury in Detroit, Michigan indicted Adamo Wrecking Company ("Adamo") for violating provisions of the Clean Air Act by knowingly causing the emission of asbestos by failure to wet and remove friable asbestos materials from demolitions.[13]

Adamo was one of a number of demolition contractors indicted throughout the country for the alleged violation of the Clean Air Act. The United States District Court for the Eastern District of Michigan dismissed the criminal indictment on the ground that it was not an "emission standard," but a "work practice standard," which under the terms of the statute, did not carry criminal liability.[14]

The government appealed and the Sixth Circuit Court of Appeals reversed the decision of the trial court, stating that it erred in determining that it had jurisdiction to review the validity of the standard in a criminal proceeding.[15] Adamo's attorneys appealed to the Supreme Court.[16]

On January 10, 1978, the Supreme Court ruled in favor of Adamo when it held that the trial court did have jurisdiction to review the standard in a criminal proceeding and also agreed with the trial court that the requirements in the act were "not standards" but "procedures" and therefore the proceedings were properly dismissed.[17][18]

W. R. Grace and Company

A federal grand jury indicted W. R. Grace and Company and seven top executives on February 5, 2005, for its operations of a vermiculite mine in Libby, Montana.[19] The indictment accused Grace of wire fraud, knowing endangerment of residents by concealing air monitoring results, obstruction of justice by interfering with an Environmental Protection Agency (EPA) investigation, violation of the Clean Air Act, providing asbestos materials to schools and local residents, and conspiracy to release asbestos and cover up health problems from asbestos contamination. The Department of Justice said 1,200 residents had developed asbestos-related diseases and some had died, and there could be many more injuries and deaths.[12][20]

On June 8, 2006, a federal judge dismissed the conspiracy charge of "knowing endangerment" because some of the defendant officials had left the company before the five-year statute of limitations had begun to run. The wire fraud charge was dropped by prosecutors in March.

Other prosecutions

On April 2, 1998, three men were indicted in a conspiracy to use homeless men for illegal asbestos removal from an aging Wisconsin manufacturing plant. Then-US Attorney General Janet Reno said, "Knowingly removing asbestos improperly is criminal. Exploiting the homeless to do this work is cruel."

On December 12, 2004, owners of New York asbestos abatement companies were sentenced to the longest federal jail sentences for environmental crimes in U.S. history, after they were convicted on 18 counts of conspiracy to violate the Clean Air Act and the Toxic Substances Control Act, and actual violations of the Clean Air Act and Racketeer-Influenced and Corrupt Organizations Act. The crimes involved a 10-year scheme to illegally remove asbestos. The RICO counts included obstruction of justice, money laundering, mail fraud and bid rigging, all related to the asbestos cleanup.[21]

On January 11, 2006, San Diego Gas & Electric Co., two of its employees, and a contractor were indicted by a federal grand jury on charges that they violated safety standards while removing asbestos from pipes in Lemon Grove, California. The defendants were charged with five counts of conspiracy, violating asbestos work practice standards and making false statements.

Regulation

In 1988, the United States Environmental Protection Agency (USEPA) issued regulations requiring certain U.S. companies to report the asbestos used in their products.[22]

Several legislative remedies have been considered by the U.S. Congress but each time rejected for a variety of reasons. In 2005, Congress considered but did not pass legislation entitled the "Fairness in Asbestos Injury Resolution Act of 2005". The act would have established a $140 billion trust fund in lieu of litigation, but as it would have proactively taken funds held in reserve by bankruptcy trusts, manufacturers and insurance companies, it was not widely supported either by victims or corporations.

On April 26, 2005, Dr. Philip J. Landrigan, professor and chair of the Department of Community and Preventive Medicine at Mount Sinai Medical Center in New York City,[23] testified before the US Senate Committee on the Judiciary against this proposed legislation. He testified that many of the bill's provisions were unsupported by medicine and would unfairly exclude a large number of people who had become ill or died from asbestos: "The approach to the diagnosis of disease caused by asbestos that is set forth in this bill is not consistent with the diagnostic criteria established by the American Thoracic Society. If the bill is to deliver on its promise of fairness, these criteria will need to be revised." Also opposing the bill were the American Public Health Association and the Asbestos Workers' Union.[24]

On June 14, 2006, the Senate Judiciary Committee approved an amendment to the act which would have allowed victims of mesothelioma $1.1M within 30 days of their claim's approval.[24] This version would have also expanded eligible claimants to people exposed to asbestos from the September 11, 2001 attacks on the World Trade Center, and to construction debris in hurricanes Katrina and Rita.[25] Ultimately, the bill's reliance on funding from private entities large and small, as well as debate over a sunset provision and the impact on the U.S. budgetary process caused the bill to fail to leave committee. According to the Environmental Working Group Action Fund, 10,000 people die each year from asbestos-caused diseases in the United States, including one out of every 125 American men who die over the age of 50.[26] The Environmental Protection Agency (EPA) has no general ban on the use of asbestos. However, asbestos was one of the first hazardous air pollutants regulated under Section 112 of the Clean Air Act of 1970, and many applications have been forbidden by the Toxic Substances Control Act (TSCA).

According to a September 2004 of the American Journal of Respiratory and Critical Care Medicine, asbestos is still a hazard for 1.3 million US workers in the construction industry and for workers involved in the maintenance of buildings and equipment.[27]

A Senate subcommittee of the Health Education Labor and Pensions Committee heard testimony on July 31, 2001, regarding the health effects of asbestos. Members of the public, doctors, and scientists called for the United States to join other countries in a ban on the product.[28]

Asbestos is not part of an ASTM (American Society for Testing and Materials) E 1527-05 Phase I Environmental Site Assessment (ESA). A building survey for asbestos is considered an out-of-scope consideration under the industry standard ASTM 1527-05 Phase I ESA (see ASTM E 1527-05). ASTM Standard E 2356-04 should be consulted by the owner or owner's agent to determine which type of asbestos building survey is appropriate, typically either a baseline survey or a design survey of functional areas. Both types of surveys are explained in detail under ASTM Standard E 2356-04. Typically, a baseline survey is performed by an EPA (or state) licensed asbestos inspector. The baseline survey provides the buyer with sufficient information on presumed asbestos at the facility, often which leads to reduction in the assessed value of the building (due primarily to forthcoming abatement costs). Note: EPA NESHAP (National Emissions Standards for Hazardous Air Pollutants) and OSHA (Occupational Safety and Health Administration) Regulations must be consulted in addition to ASTM Standard E 2356-04 to ensure all statutory requirements are satisfied, ex. notification requirements for renovation/demolition. Asbestos is not a material covered under CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act ) innocent purchaser defense. In some instances, the U.S. EPA includes asbestos contaminated facilities on the NPL (Superfund). Buyers should be careful not to purchase facilities, even with an ASTM E 1527-05 Phase I ESA completed, without a full understanding of all the hazards in a building or at a property, without evaluating non-scope ASTM E 1527-05 materials, such as asbestos, lead, PCBs, mercury, radon, et al. A standard ASTM E 1527-05 does not include asbestos surveys as standard practice.

In 2010, Washington State passed a ban on hazardous materials in automotive brakes, phasing out asbestos in vehicle brakes, starting in 2014.[29]

In South Carolina in 2015, State Senator Shane Massey introduced Senate Bill 281, "The Court Transparency Act." S.281 would prohibit the state of South Carolina from hiring outside lawyers. Similar bills have been passed into law by 18 states. The bill would also prevent juries from awarding damages that exceed actual out of pocket costs incurred by plaintiffs.[30][31][32]

In June 2015, Texas Governor Greg Abbott, a Republican, signed Texas House Bill 1492 into law. The law was written to end so-called asbestos "double dipping" in Texas.[33] This law requires asbestos victims to perform more actions before proceeding to trial, and lowers the standard of proof of asbestos exposure for manufacturers to shift the blame onto other bankrupt companies [34] A year earlier, Wisconsin Governor Scott Walker signed a similar bill into law.

In June 2016, President Obama signed into law the Frank R. Lautenburg Chemical Safety for the 21st Century Act (H.R. 2576). It serves to reform the TSCA of 1976 and aims to make federal safety regulations on toxic substances and chemicals effective.[35]

Online

The internet has become a highly competitive arena for firms trying to attract new clients. Pay-per-click costs on asbestos and mesothelioma keywords can exceed $65 per click [36] and continually rank amongst the most expensive keywords. The potential payout for affiliates serving mesothelioma and asbestos ads has created a niche for spammers and webmasters[37] who target search engines. The number of paid links has also made it increasingly difficult for injured persons to find neutral or scientific point-of-view information that is not attached to a law firm when typing in the words "asbestos" and "mesothelioma" into search engines.

References

  1. ↑ "Asbestos". EWG. Archived from the original on 2007-06-08. Retrieved 2010-09-27.
  2. ↑ "Asbestos". PointofLaw.com. 2004-05-21. Retrieved 2011-12-11.
  3. ↑ "Amchem Products, Inc. v. Windsor, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997)". Law.cornell.edu. Retrieved 2011-12-11.
  4. ↑ "Ortiz V. Fibreboard Corp". Law.cornell.edu. Retrieved 2011-12-11.
  5. ↑ Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008) and Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008).
  6. ↑ O'Neil v. Crane Co., 53 Cal.4th 335, 135 Cal. Rptr. 3d 288, 266 P.3d 987 (2012).
  7. ↑ Jake Dear and Edward W. Jessen, " Followed Rates" and Leading State Cases, 1940–2005, 41 U.C. Davis L. Rev. 683, 694(2007).
  8. ↑ Heather Isringhausen Gvillo. "Defense attorney: Judges should look for asbestos claims fraud | Legal News Line". legalnewsline.com. Retrieved 2016-11-01.
  9. ↑ Straif K. The Carcinogenicity of Asbestos – Evaluations by IARC and WHO, Recent Developments and Global Burden of Asbestos-Related Cancer. Abstract SY02-07 of paper presented during Symposia: Asbestos – A Global Disaster in Seoul, Korea. Page 28-29, Collection of Conference Abstracts of The XVIII World Congress on Safety and Health at Work.
  10. ↑ "Chrysotile Asbestos" (PDF). World Health Organization. 2014. Retrieved 2016-03-13.
  11. ↑ Father and Son Get Long Terms In Defective Asbestos Removal", The New York Times, December 24, 2004. Retrieved 2008-04-04.
  12. 1 2 Baltimore Sun
  13. ↑ 1987–1988 Preview of U.S. Sup. Ct. Cas. 1 Issue 3, September 19, 1977
  14. ↑ National Resources Journal, vol. 18, p. 677.
  15. ↑ Environmental Law Reporter, 7 ELR 2001.
  16. ↑ "Summary of Actions by Supreme Court on Various Cases", New York Times, April 5, 1977.
  17. ↑ New York Times, January 11, 1978.
  18. ↑ Environmental Law Reporter, 8 ELR 20171.
  19. ↑ EWG.org
  20. ↑ "Indictment charges W.R. Grace over asbestos". usatoday.com. Retrieved 2016-11-01.
  21. ↑ "12/23/2004: Father and Son Sentenced to Longest U.S. Jail Terms for Environmental Crimes". Yosemite.epa.gov. 2004-12-23. Retrieved 2010-09-27.
  22. ↑ "15 U.S. Code § 2607 - Reporting and retention of information | US Law | LII / Legal Information Institute | Asbestos Information Act of 1988". law.cornell.edu. Retrieved 2016-11-01.
  23. ↑ "Testimony of Dr. Philip Landrigan before Senate". Mesotheliomahelp.net. Retrieved 2011-12-11.
  24. 1 2 "JURIST - Paper Chase: Senate Judiciary Committee wants sickest asbestos victims compensated fastest". Jurist.law.pitt.edu. 2005-05-12. Retrieved 2010-09-27.
  25. ↑ "Leading News Resource of Pakistan". Daily Times. Retrieved 2010-09-27.
  26. ↑ "The Asbestos Epidemic in America". EWG. Retrieved 2010-09-27.
  27. ↑ "American Thoracic Society Journal news tips for September 2004 (second issue)". Medicalnewstoday.com. Retrieved 2010-09-27.
  28. ↑ "Summer Asbestos Hearing in US Congress". web.archive.org. Retrieved 2016-11-01.
  29. ↑ <http://www.ecy.wa.gov/programs/hwtr/betterbrakes.html>Better Brakes Law overview, Washington State Department of Ecology
  30. ↑ "January 21, 2015 - CAGC legislative issues, North Carolina and South Carolina construction news". www.cagc.org. Retrieved 2015-11-17.
  31. ↑ "Sen. Graham Could Play Pivotal Role in Deciding Future of". palmettobusinessdaily.com. Retrieved 2015-11-17.
  32. ↑ "Comprehensive Tort Reform to Be Debated in SC Senate". South Carolina Chamber of Commerce. Retrieved 2015-11-17.
  33. ↑ "Texas Congressman says asbestos reform needed to protect veterans, first responders". setexasrecord.com. Retrieved 2015-11-17.
  34. ↑ "Texas Bill Aims To Raise Bar On Asbestos Claims - Law360". www.law360.com. Retrieved 2016-03-13.
  35. ↑ "The Frank R. Lautenberg Chemical Safety for the 21st Century Act". Environmental Protection Agency.
  36. ↑ Liptak, Adam (2007-10-15). "Competing for Clients, and Paying by the Click". The New York Times.
  37. ↑ "Search Engine Spam Buster: Overture Keyword Tool - Spammed Results From abcmesothelioma.com". Sespam.blogspot.com. 2006-03-27. Retrieved 2010-09-27.
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