Document X89rQzyjYoV9vJGnvNBrn2GR

Asbestos: Legal battles escalateWill Congress act? by Stephen G. Crapnell ___ ~^ Phoios courtesy ol Jofins-Manville Corp w HO is responsible for diseases suf fered by thousands, perhaps mil lions, of workers in shipyards, con struction, textiles, asbestos mining and processing, and other industries which have been heavy users of as bestos? The stakes are millions, perhaps billions, of dollars sought by the workers in product liability lawsuits, and further millions in lost income for asbestos manufacturers, as many American businesses shun products containing asbestos. Obviously the asbestos problem is not just a staggeringly complex legal one. It's a human problem, in volving disease, disability, suffer ing, and death. A controversial 1978 report by the Department of Health, Education and Welfare estimated that 8 to 11 million workers have been exposed to asbestos since the beginning of World War II; 4 million workers have had heavy exposures; and an excess of 2 million asbestosrelated cancer deaths could be ex pected in the next 30 years -- roughly 13-18 percent of the total cancer deaths expected. Several in dustry analyses have denounced that estimate as ` 'grossly overesti mated," and one analyst instead es timated that no more than 80,000 asbestos-related cancer deaths could be expected in the next 30 years. Even that more conservative figure represents a grave occupa tional health problem. Perhaps the group most acutely affected by asbestos exposure is the International Association of Heat and Frost Insulators and Asbestos Workers, an AFL-CIO union with approximately 20,000 members. Fifty percent of union members' deaths are asbestos-related. Twen ty percent are due to lung cancer, and 7-18 percent are due to meso thelioma, a rare type ofcancer asso ciated with asbestos exposure. Roy Steinfurth, administrator of the Insulators Health Hazard Pro gram, grimly noted: "Our members over the age of 60 suffer about 2 to 3 times the suicide rate of the general population." He added that the problem has extended beyond the worksite. "We're gettingabig surge now of housewives and children who have contracted asbestosrelated cancer. I'm seeing sons and daughters of pipe coverers who are dying at the age of 35 from mesothelioma." Asbestos is the common name for a family of fibrous minerals that break easily into a fine dust. Once inhaled, up to half the asbestos fi bers may remain trapped in the lungs, and they cannot be removed. Inhaling excessive amounts of asbestos fibers can cause asbes- tosis, an emphysema-like condition characterized by scarring of the lung tissue. Early symptoms may include coughing, shortness of breath, and broadening of the fingertips. Crackling sounds in the lungs, chest pain, and fatigue after slight exertion may occur later. Asbestosis makes breathing difficult and increases the risk of infection, pneumonia, and heart attacks. Asbestos exposure may also lead to lung cancer, which has a latency of 15 to 30 years or more. It is esti mated that up to 25 percent of work ers heavily exposed to asbestos die of lung cancer. Asbestos workers who smoke run a greatly increased risk of contracting lung cancer. The third major disease associ ated with asbestos exposure is mesothelioma, a cancer that affects the lining of the chest or abdomen and is invariably fatal. Asbestos has also been associated with cancers of the stomach, colon, rectum, and esophagus. ln court Why do so many workers who are disabled by asbestos-related dis eases end up in court? Workers' compensation benefits and re- BRG 0410 quirements vary widely from State to State. Statutes may limit com pensation to narrowly defined categories of diseases; claim filing time limitations may be impractical for diseases with long latency periods, and long delays frequently occur before workers receive hear ings on their claims. These factors and others discourage or prevent workers from receiving workers' comp benefits. Product liability lawsuits have been filed primarily by shipyard workers and insulators who used asbestos-containing products, not by employees ofasbestos producers who normally would be entitled to workers' compensation as an exclu sive remedy. Typically, the worker bringing a product liability suit seeks to prove that asbestos com panies knew that asbestos was a dangerous product, but failed to take responsible steps to warn workers of the danger. The numbers of such lawsuits grow daily. Dennis Markusson. as sociate general counsel of JohnsManville Corp., the nation's largest producer of asbestos-fiber prod ucts, reported that 5,700 lawsuits are pending against the company. Approximately 900 have been dis posed of to date. Against Raybestos-Manhattan, Inc., another asbestos manufacturer, 2.240 suits had been filed against the company by the end of 1979. Ap proximately 280 cases had either been settled or dismissed. Asbestos lawsuits often involve multiple de fendants. because it is difficult for plaintiff s lawyers to determine which manufacturer's product was responsible for a worker's asbestos exposure. Product liability lawsuits have proved to be no panacea for plain tiffs. For instance, Johns-Manville has won 19 of the 28 cases it has been involved in which resulted in a verdict. The average cost per case was $23,000 in 1980. For all cases, the average cost of disposition was $80,000. Moreover, attorneys in such damage suits commonly rece ive up to a third ofthe money award. That is not to say that lawsuits have not resulted in large awards. In May 1980, Richard Hogard, a former shipyard worker who devel Asbestos baa opening operations are designed to minimize the release o( airborne dust. oped asbestosis, won a $1.2 million award from Johns-Manville and Raybestos-Manhattan. Inc. Pre viously, Hogard 'had received $50,000 in pretrial settlements. However, the jury did not award Hogard any additional punitive damages, and the judge later di rected Hogard to accept a $250,000 award. Both parties are now appeal ing the award. Awards such as Hogard received are exceptional. Most cases are set tled out of court for considerably less money, and some experts esti mate that half ofthe suits brought by workers result in no award. For the asbestos producers, though insur ance has paid for the vast majority of expenses, the litigation is a nettlesome and unpredictable drain on their resources and has adversely affected stock values. For most parties, the answer to the flood-tide of litigation is legisla tion designed to compensate asbes tos disease victims. Since 1977, the House has been considering a bill introduced by Rep. Millicent Fen wick (R. - N.J.), which would have authorized the Federal government to pay compensation claims ini tially. After a specified period, the government, asbestos producers and distributors, and the tobacco industry would contribute to a joint compensation fund administered by an independent board which would determine the validity of claims, (f the fund should run dry, the respon sibility for paying claims would re vert to the Federal government. The bill barred future third-party litiga tion. Despite the support of the Inter national Association of Heat and Frost Insulators and Asbestos Workers and Johns-Manville. the bill has remained bottled up in committee. Opponents called the bill an industry bailout and an inap propriate use of government funds. Last year, attention shifted to the Senate, where Sen. Gary Hart (D. Col.) introduced S. 2847, the Asbes tos Health Hazards Compensation Act of 1980. S. 2847 would establish voluntary Federal minimum stan dards for asbestos-related disease claims. Compensation for either partial or total disability and death due to an asbestos-related disease would be no less than two-thirds of the claimant's average weekly wage. If a compensation award was not at least equivalent to the com pensation prescribed by the bill, a claimant could seek review before BRG 0411 the Benefits Review Board estab lished by the Longshoremen's and Harbor Workers' Compensation Act. The board would have the power to order an employer to pay compensation in accord with the bill's standards. The Hart bill would allow em ployers who pay a workers' com pensation award to bring other "re sponsible parties," such as the as bestos industry and the Federal government, into the State workers' comp proceeding to determine the amount they should contribute to the compensation. A commission of government, health, labor, and in dustry experts would develop criteria by which State compensa tion boards would deterrnine the appropriate share of each responsi ble party. The Hart bill would provide the "sole and exclusive remedy" for those seeking compensation for asbestos-related disease. "This will put an end to the massive litigation that has served neither plaintiff nor defendant well over the last 5 years," Hart told the Senate in in troducing the bill. Both Johns-Manville and the As bestos Workers union have endorsed the Hart bill. William Shore, a Hart aide, said the bill, which failed to get out of committee last session, would be reintroduced this spring. Shore said Hart would seek to broaden support for the bill among labor, especially the building trades. In the past, they have adhered to the AFL-CIO's position that Congress should pass com prehensive Federal workers' com pensation standards, not bills deal ing with specific substances. Meanwhile, at the State level, on January 1, a California law became effective which provides compensa tion for victims of asbestosis, even if liability for injuries has not been determined. The law. Chapter 1041, established a $2.6 million Asbestos Workers' Account. To receive ben efits, a worker must show that he was exposed to asbestos, con tracted asbestosis resulting from the employment, and is entitled to compensation. A worker meeting those criteria may apply for benefits from the account, if the responsible employer cannot be found orfails to pay within 30 days after a claim is An industrial hygienist checks asbestos levels. The worker at left wears a sampling pump. filed. The account will be reim bursed by liens authorized against employers. Testing: exclusivity Until recently, employees of as bestos companies who developed asbestos-related diseases had workers' compensation as their ex clusive remedy against their em ployer. They could not sue for dam ages. Last July, the California Supreme Court ruled that that was no longer true in every case. In JohnsManville Products Corp. v. Contra Costa Superior Court, the court held that "while the workers' com pensation law bars the employee's action at law for his initial injury, a cause of action may exist for aggra vation of the disease because of the employer's fraudulent concealment of the condition and its causes." Reba Rudkin, a former employee at Johns-Manville's Pittsburgh, Calif, plant, had filed suit against the company on the grounds he had developed lung cancer and other asbestos-related diseases during his 29 years at the plant; Rudkin charged that J-M knowingly'ordered him to work in an unsafe envi ronment, concealed the risk of as bestos exposure from him, and, after he contracted lung disease, de liberately failed to notify him, the State, or the physicians treating him of the disease and1 its connection with the plant. These actions, he ar gued, aggravated his disease. Rudkin sought compensatory and punitive damages in Contra Costa Superior Court in the State of California. In rebuttal. J-M opined that Rudkin's exclusive remedy was workers' comp and that at most he was entitled only to a one-half in crease in his compensation award, as provided by the State's workers' compensation law for "serious and willful misconduct" by employers. The Superior Court ruled in Rud kin's favor, and J-M appealed the case. The California Supreme Court found that Rudkin's exclusive rem edy would have been workers' comp, if he only had "contracted the disease because . . . (J-M) knew and concealed from him that his health was endangered by asbestos in the work environment, failed to supply adequate protective devices to avoid'disease, and violated gov ernmental regulations relating to dust levels at the plant ..." BRG 0412 The Supreme Court continued that "in some exceptional circum stances the employer is not free from liability at law for his inten tional acts, even if the resulting in juries to his employees are com pensable under workers' compen sation." However, the court noted a "trend" toward allowing a liability action "forinjuries suffered in the employment, if the employer acts deliberately for the purpose of injuring the employee, or if the harm resulting from the intentional mis conduct consists of aggravation of an initial work-related injury." Despite its action, the court held that the precept of workers' comp as an exclusive remedy for work place injuries "would not be seri ously undermined" by holding J-M liable for the aggravation of Rud kin's disease. "... We cannot be lieve that many employers will ag gravate the effects of an industrial injury by not only deliberately con cealing its existence but also its connection with the employment." the court concluded. J-M's Markusson said the com pany views the opinion as "very narrow" and unlikely to signifi cantly change the asbestos litigation scene. He said similar challenges to the exclusivity of workers' comp were under way in New Jersey, Il linois, and Texas. J-M is normally on the receiving end of lawsuits these days, but, along with nine other asbestos man ufacturers, the company turned the tables recently and sued the Federal government. The manufacturers are seeking reimbursement of $69,000 paid in an out-of-court settlement to William B. Glover, a former Nor folk Naval Shipyard pipe coverer who developed asbestosis. They claimed that the Federal govern ment knew about the hazards of asbestos-containing insulation, failed to maintain good work prac tices at the shipyard, and must bear the responsibility forinjuries result ing from its failure to properly use asbestos-containing products. The manufacturers lost the first round in Federal District Court in Norfolk, Virginia, when Judge John A. MacKenzie ruled in favor of the government. MacKenzie found that "the government did negligently fail to fully carry out and implement the range of safety devices that the gov ernment knew were essential," but held that "the government's con duct was not so egregious as to prompt this court to impose upon the United States the entire burden of loss occasioned by Mr. Glover's asbestosis." The case is now on ap peal before the U.S. Court of Ap peals for the Fourth Circuit. In keeping with its stance that the Federal government has been a major user of asbestos products and should be held responsible for its share of problems developing from the use of asbestos in governmentcontrolled facilities, J-M is backing H.R. 1504, the Government Con tractor's Product Liability Act of 1981, introduced January 29 by Rep. Robert McClory (R. - III.) and presently before the House Admin istrative Law Subcommittee. The bill seeks to provide indemnifica tion from the Federal government for losses suffered in product liability suits by any supplier of products or services to the govern ment. This would not hold if a court had determined that the supplier's liability resulted from the "primary and active negligence of the supplier." Asbestos medical surveillance programs include lung function tests. im BRG 0413 m a r > i i i i i i i i