Document 10vyMo76oZdb45oEJb6gzKKv5

FILE NAME: Marley (MAR) DATE: 1983 DOC#: MAR011 DOCUMENT DESCRIPTION: Newspaper Articles NTER OFFICE LETTER -F O R M I0 2 -E THE MARLEY COMPANY IMPORTANTI a lw ays send co pi TO OFFICES INVOLVED To: COMPANY PRESIDENTS, LINE EXECUTIVES AND PLANT MANAGERS From Bob Best Attn: Q_ Office Corporate Safety Date May 6, 1983 SUBJECT The attached articles are for your information only. MARDEP000411 wSuoints'tomveartcohthaesrbpersotdouscctrsisis Will future toxic tort litigation reach the magnitude of asbestos lit igation? Most defense and plaintiffs' at torneys answer that question with a qualified "No." Probably no one substance will create as much litigation as as bestos, they say, but medical and legal uncertainties make it impossi ble to be sure. Even if litigation over one chem ical or substance doesn't produce the volume of lawsuit^ generated by asbestos injuries, some say that cumulative toxic tort litigation will keep companies and insurers in court for years. "I don't anticipate another as bestos on the horizon," says defense attorney O.J. Weber, w ith the Beaumont, Texas,- firm of Mehaffy, Weber, Keith Sc Gonsoulin. "But the cumulative effect of it (toxic tort litigation) poses a very real and serious danger to manufacturers and suppliers of products." "My personal feeling is that as bestos is probably the worst of the toxic torts we are going to see," adds Leslie A. Miller, a defense at torney with the Philadelphia firm of LaBrum Sc Doak. "I don't foresee other substances that will equal it," with the exception perhaps of toxic chemicals, she says. "The evidence so far suggests that toxic tort litigation will not be as extensive or expensive," as as bestos litigation, adds Leslie Cheek III, vp for Crum & Forster. Attorneys cite several reasons that future toxic tort litigation may not match asbestos litigation. They include that many of the chemicals and substances in ques tion are not as widely used as as bestos; the medical evidence link ing them with various diseases is not as strong; and current safety standards on the use of the prod ucts have improved considerably, resulting in workplaces that are generally safer than they were dec ades ago. Some say petrochemicals Could be a great source of future lawsuits, but the litigation they prompt won't be anywhere as large as that prompted by asbestos, says a coun sel for Exxon Co. "I don't think it will be anything like asbestos," said Edward Lowenberg. "There is less of a pool of po tentially exposed people." Another reason there should be fewer suits with other substances than with asbestos is that asbestos was used for so long before it was realized that it was causing disease. "We had a long period of time when many people used it without being aware of the potential prob lem," Mr. Weber says. However, some people dispute that the companies that manufac tured or used asbestos did not know that it was dangerous. But the long-latency period that exists between exposure to asbestos and manifestation of the disease does not exist for many of the dis eases triggered by other toxic sub stances. Therefore, the danger of using them is realized sooner, de creasing the number of suits. A nother reason asbestos has prompted so many lawsuits is that a direct link has been made between exposure to it and certain diseases. This is not the case with the other substances. Asbestos is different because no one doubts it causes such diseases as asbestosis or mesothelioma, adds plaintiffs' attorney Stanley J. Levy of the New York firm of Kreindler Sc Kreindler. "Those really aren't questions anymore." Mesothelioma is cancer of the lining of the lung. But with other substances there may not be the causal link to cer tain diseases. "I don't think there will be the same type of volume (of future lawsuits)," Mr. Levy says. "I doubt we will get 20,000 cases from a par ticular substance." Safer workplaces also will de crease the number of lawsuits. "If you look at the strides in workplace safety and knowledge of the chemi cal industry, there is in place in most industries very significant preventive programs," says Les Cheek, vp-federal affairs for Crum Sc Forster. Mr. Cheek also points to studies that indicate occupational cancer has been on the decline since the 1930s. But, one thing that could lead to more litigation, according to Mr. Cheek, is if federal legislation shifts to defendants the burden of proving that their product does not hurt plaintiffs rather than making plaintiffs prove they were hurt. "A set of unlikely circumstances occurred with asbestos," adds Tom Brown, a policy analyst for the U.S. Labor Department. "It's not likely to happen again." Mr. Brown points to research by Dr. Irving Selikoff of the Mount Sinai School of Medicine linking asbestos with particular diseases and the culpability of particular de fendants in asbestos litigation. According to Dr. Selikoff, a number of criteria must be present for the asbestos litigation crisis to be repeated, substituting another substance. The criteria include widespread exposure to the public of the prod uct or substance. Also, the sub stance or product must have been in existence for many years. There must be a long-latency period for the disease. It must be demon strated that it causes cancer in humans. And it must be shown that there is more than a minimal inci dence of cancer. If these criteria are fulfilled, then insurers and manufacturers have cause for concern, Dr. Selikoff con cerns. MARDEP000412 TUo.Sx.iccosmubpsatnainecseisn wthilel hfuatuunrte BySTEPHENTARNOFF Asbestos litigation, already a life-threatening reality for some U.S. companies, may be only the first wave of the flood to come. Attorneys are predicting that litigation over toxic substances will be the coming trend. And while the lawsuits generated by other toxic substances may not be as overwhelming as the number generated by as bestos, they will continue to harass and endanger busi nesses for many years. "It's clear that toxic tort litigation will continue to dominate the tort system through the 1980s," says Leslie A. Miller, an attorney with the Philadel phia firm of LaBrum &'T)oak who has been involved/in toxic tort litigation. / "I think asbestos haj/set a prec edent for toxic tort litigation. It's opened up the floodgates." "This is the new litigation," says Mi chael Sommerville, manager of the special claims unit of Commercial Union Insurance Co. "This is the litiga tion that will be very destructive to the insurance in dustry." In 1978, the National Institute of Occupational Safety and Health listed 2,400 substances as suspected carcino gens, or cancer-causing agents. Aside from asbestos, the product causing the most litigation now is Agent Orange. Used during the Vietman War as a defoliant, the sub stance contains dioxin, which has been linked to a number of ailments including skin disorders, liver dis eases and many forms of cancer. More than 2.4 million servicemen were believed to be exposed to Agent Orange. The first suits were filed in the late 1970s, and now there are more than 10,000 plaintiffs in the U.S. District Court in New York. A class action has been certified in the litigation, but the potential number of class members is unknown be cause it could include the fathers, mothers, wives and children of servicemen exposed to the substance. Plaintiffs' attorneys are estimating that about 20,000 claims will be filed in the near future, but they add that more could follow. "Agent Orange is bigger than asbestos, but nobody can say how big it is," says plain tiffs' attorney Steve Schlegel of the Chicago firm of Schlegel and Tra:elet Ltd. "As a single piece of litigation, it the most legally complex and the biggest high-stakes litigation ever filed in the history of products lia bility litigation." About 14 manufacturers of Agent Or ange have so far been named as defendants in the suits. A trial is set for later this year to determine if the com panies can escape liability because they manufactured Agent Orange according to government specifications. Based on research conducted by Commercial Union and Liberty Mutual, other substances and products that either have triggered litigation or could in the future include: Formaldehyde. This industrial chemical, the use of which is probably increasing despite its toxicity, could be the next biggest source of lawsuits^ according to Mr. Sommerville. About 700 formaldehyde lawsuits had been filed as of Continued on page iaf. MARDEP000413 -2 - Toxic tort litigation expected Continued from page 1 January. Commercial Union re ported that it was on the risk for about 233 cases, about the same as the number of asbestos suits the in surer faced in 1978. The suits are being filed at an in creasing rate, Mr. Som m erville says, with settlements ranging from $400 to $50,000. The average case is settled for about $5,000. As of January, eight cases had been tried with four defense vic tories and four plaintiffs' verdicts. Three of the judgments exceeded $500,000, he said. Hazards associated with formal dehyde include irritation of the res piratory tract, eyes and skin. Acute irritation to the respiratory tract has caused death. Typical defendants include chemical companies, manufactur ers of urea formaldehyde foam in sulations, resin and adhesive man ufacturers and morticians' supply companies. Benzene. According to one es timate, more than 7 million work ers have been exposed to this sub stance. "For this reason, this could be the next big one," Mr. Sommer ville says. In high doses, benzene exposure can lead to blood disorders includ ing aplastic anemia and leukemia. Chromosomal damage is also al leged. Potential defendants include large petroleum companies, chemi cal companies, shipyards and tire manufacturers. Vinyl chloride. A sw eet smelling, colorless gas, vinyl chlo ride is easily ignited and found in a variety of plastic materials. It is a suspected carcinogen as well as a cause of many other disorders. In 1974, NIOSH concluded that a new occupational cancer, angiosar coma, had been discovered and linked it to vinyl chloride. Vinyl chloride may also cause headaches, dizziness, anemia and skin prob lems. Its use is strictly regulated. As of January, there were ap proximately 1,000 vinyl chloride lawsuits pending, including 10 to 15 occupational exposure cases. Typi cal defendants include plastic man ufacturers, often subsidiaries of rubber companies. to increase Polychlorinated Biphenyls (PCBs). A toxic environmental con taminant that is linked to cancer, PCBs are prohibited from use by law except under limited circum stances. Defendants in such cases include manufacturers of industrial electrical transformers and busi nesses involved in basic metal prodution like steel mills and die-cast ing, electric utilities, electrical equipment repair firms, food and feed processing companies, metal salvage and mining companies and railroads. Several large property damage judgments have been awarded in PCB spills. Kepone. A suspected carcino gen, Kepone is a pesticide that has severely restricted applications in the workplace. It is also alleged to cause compli cations in the central nervous sys tem with symptoms like visual dis turbances, weight loss, nervousness and insomnia. Probably few er than 50 com panies process or formulate pesti cides using Kepone and perhaps 600 workers were exposed to it, ac cording to NIOSH. No U.S. com panies are believed to presently manufacture it; the last known U.S. plant was closed in 1975. Few Kepone lawsuits are pend ing, according to Mr. Sommerville. Defendants include one small and several large chemical manufactur ing companies. Lead. A widely used material, lead can be found in piping, paint, battery cells, cosmetics, construc tion, glass manufacturing, printing and fuel blending. Most of the health hazards posed by lead poisoning have been eli minated, controlled or monitored, but use of the mineral will continue to be a problem for "small shops" and in the construction trades, ac cording to Christopher Mansfield, assistant vp and counsel at Liberty Mutual Insurance Co. There was a million-dollar ver dict in a lead suit last year in Mas sachusetts, but widespread litiga tion is not anticipated. Radiation. No one disputes that a high level of radiation is dan gerous and much of the litigation, already some 300 suits, pivots on defining an acceptable level. "But what about low-level, long-term ef fects?" Mr. Mansfield asks. There are hundreds of thousands of people who are potential targets for radiation exposure, including dental technicians and pathologists. "Because of the num bers, we view this as a major problem of the insurance industry," Mr. Mansfield adds. Coffee. This popular substance is linked to pancreatic cancer, which kills more than 20,000 per sons annually and is the fourth leading cause of cancer deaths. It is uncertain whether coffee or a decaffeinating chemical is the dangerous agent. But as researchers watch the effects more closely, they are finding an increasing asso ciation between coffee and cancer of the pancreas. Continued on page 3 MARDEP000414 - 3- "But association does not mean cause and effect," Mr. Mansfield emphasizes. Currently, no suits are pending over injuries from coffee, but some insurers are concerned, he says. "The universe of exposed people is larger than (that of) asbestos. It's a very frightening thing to look at," Cadmium. Used as a protec tive coating in the electroplating, wire and battery industries, and as pigment in the glass and paint in dustry, cadmium has been related to systemic poisoning and lung dis ease. Litigation is currently confined to workers compensation claims, but there is concern that product li ability cases will follow. "Insurance companies are getting ready for this as a possibility," Mr. Mansfield says, although no one is sure if and when exposure will re sult in widespread litigation. T richloroethylene (TCE). Widely used as an industrial sol vent, TCE can be encountered by humans through inhalation of vapors and possibly contaminated drinking water. Exposure can re sult in central nervous system de pression, visual disturbances, men tal confusion and fatigue. It is also a suspected carcinogen, though it has spurred little personal injury litiga tion so far. Toluene Di-Isocynate (TDI). This substance is used in the manu facture of polyurethane foam rub ber, plastic coating for wire, adhe sives, leather processing, paints, varnishes and lacquers. The heat of a fire causes its release from build ing materials. It is a suspected car cinogen. There are currently pending sev eral hundred personal injury cases relating to exposure primarily from occupations involved in the manu facture of polyurethane foam. Diethylstilbestrol (DES). A synthetic estrogen that came on the market in 1947 for use in troubled pregnancies, a possible association between its administration to preg nant women and medical problems in female and male offspring was found in 1971. Some predict DES will cause thousands of lawsuits; there are now more than 400 cases filed rep resenting thousands of plaintiffs. Tampons. These products are alleged to cause toxic shock syn drome, an acute illness whose symptoms include fever, rash and hypertension. More than 1,000 cases have been filed, and six cased have already been decided. Both defendants and plaintiffs have won victories. Intrauterine devices (IUDs). These products are made of plastic and designed to fit in the uterine cavity to prevent conception. Most of the litigation has centered on the D aikon S hield m ade by A.H. Robins Co., which is no longer on the market. There are currently more than 2,500 cases pending, and defendants have won more often than plaintiffs. Plaintiffs allege the devices cause infections of the uterus. Also, a spontaneous abortion can result if a woman becomes pregnant while an IUD is in place. B ndictin. A product designed to ameliorate the nausea of pregnancy, it has been taken by hundreds of thousands of pregnant woman for many years. It has been alleged to cause birth defects in children whose mothers took it. There are approximately 220 cases pending. O ther substances that have brought large numbers of suits, or could in the future, include silicosis, chemicals known as PBNAs, BNAs, petroleum coke, welding rods, ni trous oxide, chromium, Agent White and various printers' inks. Medical advances, changes in law prompt litigation What's behind the dramatic increase in toxic tort litigation? Mainly'; the advances mad ih medical science over the last fw dcades and changes inproduct liability law. Now, science can link exposure to varioussubstances with the diseases they cause-. And; if' the plaintiff can poin ta finger, at a particular group of manufacturers and has scientific proof to back his case; a lawsuit is almost inevitable. According to Christopher Mansfield;; assis-tant vp and counsel at Liberty Mutual Irisuranee Cb. in: Boston; it is neither greedy, plains tiffs nor their attorneys: th at are causing the' wave of.toxic litigation. "T he fct is. science Has caughfcup with.technolbgy," He says; For example, epidemiological studies that link- exposure with diseases have lagged behind technological applications ofith substances and their, entrance into;comtoerce-aridthe workplace, Mr; Mansfield explains, "Now it (science) is catching- up with th technology." While much of the future litigation hinges on this link .between exposure and the disease; others point to changes in product liability law and growing consumer, awareness as reasons for.the increase in lawsuits. Attorneys-say changes in statutes of limitations;,thfe broadening of discovery proceedings and the shifting of burden of proof to deferir dants are the culprits. Defnse: attorney Lesli A. Miller of the firm of LaB tum & Doak in Philadelphia says plaintiffs' attorneys are developing new theories to get'around-traditional ,product liability theories; In some cases; plaintiffs are able, to shift the burdn of proof, to manufacturers in various situations even where the' responsible manufacturer can't be identified; she says. A spokesman for another company cites the doctrine of collateral estoppel as another example olhow the balance is tipping in favor of the plaintiffs. Under collateral estoppel, a' plaintiff can ask that a. prior court ruling be applied 'to his case without having to litigate the issue again. "If you try a case as a manufacturer and win, you can't use it (in future litigation)," said Paul J. Galio; ,insurance administrator for ACF dustries in New York, about the law in si states, "If you try it and lose it, however, it automatically be used against you. We si the fear (about toxic torts) that everyone is pressing," Ms; M iller predicts there also will be n toxic tort suits for emotional distress to i lives and others riot directly injured by e: sure to a toxic substance, Other factors contributing to the increa; litigation, according to Ms. Miller, are creased awareness on the part of the pu law yer advertising, exchanges of evidi among lawyers and plaintiffs' lawyers in' irig more time in a case because of a grt potential for recovery, ` "As far as I'm concerned, the disease i; contingent fee," says James Hanes, counse Dbw Chemical Co. in Midland, Mich., o( system which allows attorneys to collect third to one-half of the plaintiffs' award. " get-rich-quick scheme for plaintiffs' a neys." MARDEP000415