Pennsylvania State Court Rejects The “Any-Breath” / “Every Exposure” Theory On Appeal Of A $14.5 Million Verdict In Welder’s Mesothelioma Death Case

In the Nelson v. Airco Welders Supply case an individual who worked as a welder at a steel plant for 33 years was exposed to various asbestos-containing products. A couple of years after leaving the steel plant this worker was diagnosed with mesothelioma and, unfortunately, he died about one year later.

His death came before this asbestos-mesothelioma lawsuit trial was heard by a jury, which returned a verdict in the amount of $14.5 million for the plaintiffs, the deceased worker’s survivors.

At trial the plaintiffs’ expert testified that “every exposure must be considered a cause of the disease” — which in asbestos litigation is the so-called “any-breath” or “every exposure” theory of causation.

The defendants appealed. And before the Superior Court of Pennsylvania issued its appellate ruling for Nelson v. Airco Welders Supply, in another asbestos case — Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012) —  the Pennsylvania Supreme Court rejected the “any-breath” theory.

With the Betz v. Pneumo Abex opinion being the “law” as regards asbestos-mesothelioma causation in Pennsylvania, the Nelson v. Airco Welders Supply court reversed the plaintiffs’ trial verdict insofar that this result was substantially based on the “any-breath” expert testimony.

In contrast, the Maryland Supreme Court recently ruled that an expert may testify that “every exposure to asbestos is a substantial contributing cause” of mesothelioma.

We will continue to monitor the asbestos-mesothelioma litigation for significant rulings and report them here on the Asbestos HUB blog.

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More Lawsuits Being Filed For People With Lung Cancer Who Worked With Or Around Asbestos-Containing Products Years Ago

In November 2012 we wrote this article, “Asbestos Lung Cancer Cases:  Number Of Filed Lawsuits Increasing Across The U.S.”

Now, a year later, we get confirmation there is a growing number of lawsuits concerning lung cancer related to asbestos exposure from this November 2013 report found at the Business Insurance website, “Asbestos, environmental insurance claim losses up 12% in 2012:  Best”:

Asbestos and environmental insurance claim losses increased in 2012 due to a rising number of asbestos-related lung cancer lawsuits, A.M. Best Co. Inc. said Monday.

The Oldwick, N.J.-based rating agency said annual asbestos and environmental insurance losses rose 12% last year, compared with a 31% decrease in 2011.  Best estimated that as of December 2012, the U.S. property/casualty industry faced $85 billion in net ultimate asbestos losses, up from the agency’s 2011 estimate of $75 billion.

“This comes amid a rising number of lung cancer lawsuits related to asbestos and evolving mass tort exposures on the environmental side,” Best said in a statement.

Likewise, at our law firm we are hearing from more people who worked with or around asbestos-containing products long ago that have been diagnosed with lung cancer many years later (due to the latency period, or delay, between asbestos exposure and cancer diagnosis).

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National Institute For Occupational Safety And Health (NIOSH) Study About Deaths From Mesosthelioma And Asbestosis Published In January 2014 Medical Journal

From the Abstract for this recently published 2014 article about the loss of life attributable to asbestosis and malignant mesothelioma, “Diseases attributable to asbestos exposure: Years of potential life lost, United States, 1999-2010?, we get these sobering facts about the number of years lost to asbestos cancer and and asbestos disease in the US:

BACKGROUND:

Although asbestos use has been restricted in recent decades, asbestos-associated deaths continue to occur in the United States.

OBJECTIVES:

We evaluated premature mortality and loss of potentially productive years of life attributable to asbestos-associated diseases.

METHODS:

Using 1999-2010 National Center for Health Statistics mortality data, we identified decedents aged ?25 years whose death certificate listed asbestosis and malignant mesothelioma as the underlying cause of death. We computed years of potential life lost to life expectancy (YPLL) and to age 65 (YPLL65 ).

RESULTS:

During 1999-2010, a total of 427,005 YPLL and 55,184 YPLL65 were attributed to asbestosis (56,907 YPLL and 2,167 YPLL65 ), malignant mesothelioma (370,098 YPPL and 53,017 YPLL65 ). Overall and disease-specific asbestos-attributable total YPLL and YPLL65 and median YPLL and YPLL65 per decedent did not change significantly from 1999 to 2010.

CONCLUSIONS:

The continuing occurrence of asbestos-associated diseases and their substantial premature mortality burden underscore the need for maintaining prevention efforts and for ongoing surveillance to monitor temporal trends in these diseases.

For more information about this unfortunate situation, see Mesothelioma, Asbestos, and Legal Compensation: Basic Facts over at our Asbestos-Mesothelioma.com website.

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Surgical Procedure Is Good Treatment Option For Patients With Certain Type Of Malignant Pleural Mesothelioma (MPM) According To New Medical Study

The following comes from a December 2013 news article, “Chest wall resection effective for recurrent mesothelioma”, about some recent medical research findings published in The Journal of Thoracic and Cardiovascular Surgery:

Salvage chest wall resection could lengthen survival in patients with isolated chest wall recurrence of malignant pleural mesothelioma (MPM), research indicates.

MPM is an aggressive malignancy with a poor prognosis and few effective treatment options, the researchers note. But in their study, 47 patients who underwent chest wall resection for recurrence a median of 16.1 months after initial cytoreductive surgery, the median overall survival was favorable, at 44.9 months.

Survival was greatest in patients with prolonged time to recurrence and those with the epithelial cell type.

“[O]ur results have indicated that for select patients with isolated chest wall recurrence of MPM, salvage [chest wall resection] (performed with an intent to cure) is an effective strategy,” say the researchers David Sugarbaker (Harvard Medical School, Boston, Massachusetts, USA) and colleagues.

We will continue to monitor the medical journals and related news reports for developments concerning treatment of the asbestos-related cancer mesothelioma.

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Pennsylvania Supreme Court Reaffirms That Legal Causation In A Mesothelioma Lawsuit May Not Be Proven On The Basis Of Theory That Even Minimal Exposure To Asbestos Can Cause Mesothelioma

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New Report On Insurance Companies That Delay Payments In Asbestos Suits, And What This Has To Do With The Furthering Asbestos Claim Transparency (FACT) Act

An October 2013 Scripps News article, “Berkshire Hathaway subsidiaries deny, delay asbestos, hazard claims, suits, insiders allege”, by investigative reporter Mark Greenblatt, revealed this disturbing news about how some insurance companies have intentionally delayed or denied insurance claims for victims of asbestos exposure:

Scripps interviewed over 20 sources –- some confidential –reviewed dozens of lawsuits and spoke with former insiders, who all allege that Berkshire-owned companies that handle its asbestos and pollution policies — National Indemnity Co. and Resolute Management Inc. — wrongfully delay or deny compensation to cancer victims and others to boost Berkshire’s profits. In multiple cases, courts and arbitrators have ruled that the Berkshire subsidiaries’ tactics have been in “bad faith” or intentional.

Likewise the Furthering Asbestos Claim Transparency (FACT) Act, is pending legislation that would make it more difficult for asbestos victims to receive a “day in court” and receive the legal compensation they deserve for their mesothelioma or asbestos-related cancer claim. Essentially, the FACT Act (H.R. 982) would both violate asbestos victims’ privacy and allow asbestos corporations to delay justice until asbestos victims die.

Here is an article I wrote earlier this year about this pending legislation:  “Protect Asbestos Victims: Reasons To Oppose H.R. 982, the Furthering Asbestos Claim Transparency (FACT) Act of 2013?

Please take a few minutes to contact your member of Congress and tell them to vote “No” on the Furthering Asbestos Claim Transparency Act (H.R. 982).

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From Australia, Possible New Malignant Mesothelioma Medical Treatment Development Reported In Late 2013

We recently found this Australian Broadcast Corporation (ABC) News report, “‘Ray of hope’ for sufferers of asbestos disease mesothelioma”, which indicates there may be a new treatment for future mesothelioma victims. From this November 2013 report:

A new treatment for the asbestos-related disease, mesothelioma, is offering a ray of hope to victims of the deadly cancer, researchers say.

The Asbestos Diseases Research Institute in Sydney has published the results of laboratory testing of a novel genetic treatment in the international Journal Oncology.

The treatment uses bacterial mini cells which have no genetic information to carry messenger cells, or micro RNA, into mesothelioma tumours.

The mini cells are protected with a coating of anti-bodies that protect them on the way to the target.

Scientists say it appears to be halting the growth of cancer in animals.

“Over the course of the experiment, which was about a month in duration, we found that the tumours didn’t increase in size at all,” said senior researcher Doctor Glen Reid.

Dr Reid says low levels of micro RNAs in mesothelioma cells could be contributing to the rapid growth of the cancer.

“We find that the growth of the tumours is strongly repressed,” he said.

“So this is quite an exciting discovery, that micro RNA’s themselves can inhibit the growth of a tumour in an animal.”

This ABC news article goes on to point out that, as you may know, unfortunately peopled diagnosed with malignant mesothelioma “are given an average life expectancy of one year, and current treatments only extend that to 15 months”.

Lastly, Dr. Reid said as regards the progress of this possible new mesothelioma treatment, “the whole testing process could take four or more years”.

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More Apparent Litigation Misconduct By Georgia Pacific In Mesothelioma And Asbestos Lawsuits Is The Topic Of New Report By The Center For Public Integrity

The well-known asbestos defendant Georgia Pacific is the subject of a second recent investigative report concerning what appears to be “questionable” medical and legal tactics as regards seeking to avoid liability in asbestos-mesothelioma cases.

Just a month ago we posted here this story “Asbestos Defendant Georgia Pacific: The Potential Legal ‘Crime-Fraud’ Situation Involving Professor Ken Donaldson And GP In-house Litigation Counsel” about a disturbing legal situation in some asbestos lawsuits that involve Georgia Pacific as a defendant.

Now, from an October 2013 article by Jim Morris for The Center for Public Integrity we learn more about how Georgia Pacific (GP) sought to evade paying legal compensation to workers who contracted mesothelioma, lung cancer, or asbestosis after working with or around GP asbestos-containing products.

From this article, “Facing lawsuits over deadly asbestos, paper giant launched secretive research program”:

In the spring of 2005, Georgia-Pacific Corp. found itself facing nearly $1 billion in liability from a product it hadn’t made in nearly three decades: a putty-like building material, known as joint compound, containing the cancer-causing mineral asbestos.

Named in more than 60,000 legal claims, Atlanta-based Georgia-Pacific sought salvation in a secret research program it launched in hopes of exonerating its product as a carcinogen, court records obtained by the Center for Public Integrity show. It hired consultants known for their defense work to conduct studies and publish the results, with input from the company’s legal department — and is attempting to keep key information hidden from plaintiffs.

The Consumer Product Safety Commission had banned all asbestos-containing joint compound as of 1978, and Georgia-Pacific, maker of a widely used version called Ready-Mix, had raised no objection. But in 2005, as asbestos-related diseases with long latency periods mounted, the company revisited the issue with one aim: to defend lawsuits filed by people like Daniel Stupino, a part-time renovation worker who died last year of mesothelioma, a form of cancer virtually always caused by asbestos exposure.

Under its research program, Georgia-Pacific paid 18 scientists a collective $6 million, documents show. These experts were directed by Georgia-Pacific’s longtime head of toxicology, who was “specially employed” by the company’s in-house counsel to work on asbestos litigation and was under orders to hold “in the strictest confidence” all information generated.

The article points out some obvious parallels between these medical and legal manipulations by Georgia Pacific in the asbestos-mesothelioma litigation and the blatant “research” misconduct of major tobacco companies many years ago.

Certainly, this article about Georgia Pacific published by The Center for Public Integrity is worth a read by anyone who has an interest in how some corporations seek to hide from accountability when sued by people who have been harmed by products the company made and sold for a profit.

A hat-tip to Jim Morris and The Center for Public Integrity for a job well done.

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Federal Court Bankruptcy Judge George Hodges Gives Asbestos Defendant Garlock What They Wanted And More, Which Is Unfortunate For Mesothelioma Victims

Last summer we were monitoring a bankruptcy estimation trial for the former asbestos company Garlock Sealing Technologies in Charlotte, North Carolina and being presided over by federal bankruptcy judge George Hodges.

This Garlock Chapter 11 case is In re Garlock Sealing Technologies LLC, 10-bk-31607, U.S. Bankruptcy Court, Western District of North Carolina (Charlotte).

And on January 10, 2014 Judge Hodges issued his ruling which was fully in favor of Garlock as reported in this Bloomberg article published on the InsuranceJournal.com website, “EnPro’s Garlock Wins Trial on Asbestos Liability; Judge Hits Claimants’ Lawyers”:

Garlock Sealing Technologies LLC, a unit of EnPro Industries Inc., emerged victorious after a trial with official representatives of asbestos personal injury claimants.

Adopting the company’s estimate, U.S. Bankruptcy Judge George R. Hodges in Charlotte, North Carolina, concluded that $125 million is the “reasonable and reliable” estimate of present and future liability for mesothelioma claims.

Hodges rejected the claimants’ methodology and experts’ reports who contended the liability was about 10 times larger, or almost $1.3 billion….

Hodges said it was proper to use Garlock’s method of deciding the degree of the company’s “legal liability” by looking at the merits of claims. He rejected the claimants’ method of using Garlock’s historical settlements to extrapolate how much it would cost to settle present and future claims.

The opinion boils down to Hodges’s conclusion that those who became sick had “relatively low exposure” to Garlock’s products and that the company’s liability should be “relatively de minimus.”

Certainly a disappointing result for those individuals diagnosed with mesothelioma after working with and around Garlock’s asbestos-containing products in the past.

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The “Every Exposure” Theory As Used By Plaintiff’s Expert In Dixon v. Ford Motor Asbestos-Mesothelioma Case Is Approved By Maryland Supreme Court

Recently, the Maryland Supreme Court ruled that an expert may testify that “every exposure to asbestos is a substantial contributing cause” of mesothelioma in Dixon v. Ford Motor Co., 433 Md. 137 (2013).

At the trial of this Dixon lawsuit it was alleged that a woman who died of malignant mesothelioma was exposed to asbestos by two means, one direct and one indirect (or so-called “secondhand exposure”). First, the plaintiff claimed that the decedent’s husband used a drywall joint compound allegedly manufactured by Georgia-Pacific in a repair project at their home. In addition, plaintiff contended that the husband, an automobile mechanic, brought asbestos-laden dust home with him on his clothes, which the wife laundered, after working almost exclusively on Ford automotive brakes for many years.

During this Maryland asbestos-mesothelioma trial the jury heard plaintiff’s expert testify to the effect that, even though the deceased wife may have been exposed to asbestos from a drywall joint compound during her husband’s home repair project, it was the Ford brake dust that he brought home on his clothes and which the wife washed that was a cause of her asbestos-related cancer, also, because “every exposure to asbestos is a substantial contributing cause” of mesothelioma.

On the initial appeal, this “every exposure” theory was rejected by the Maryland Court of Special Appeals, which vacated a $3 million judgment awarded to the plaintiff. Essentially, this first appellate court concluded that plaintiff’s expert failed to quantify the probability of causation or provide a meaningful assessment of the risk imparted by the exposure at issue. Dixon v. Ford Motor Co., No. 536 (Md. Ct. Spec. App., June 29, 2012)

Next, the Maryland Court of Appeals reversed the Maryland Court of Special Appeals court, holding that this first appellate court had improperly ignored the context within which the plaintiff’s expert had provided the “every exposure” testimony. In more detail, this expert’s opinion was based on evidence that asbestos dust was brought into the home by the husband twice a week for 13 years, and that the repeated exposure was “high-intensity” because asbestos fibers would remain in the home for an extended period.

Lastly — recognizing that with this factual background and context, in fact, the expert’s causation testimony was not a “novel”, or unreliable scientific theory that should be disregarded — the Maryland Supreme Court ruled that the “every exposure to asbestos is a substantial contributing cause” theory can be used by an expert in an asbestos-mesothelioma lawsuit such as the Dixon case in Maryland.

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