Parent proves material removed from school contains asbestos after being told otherwise

August 10, 2009

The father of a girl attending a school in Queensland, Australia blew the whistle on the local government?s improper removal of asbestos-laden materials from the school, after being assured that the materials were harmless. Simon Smith grew concerned when he saw workers removing a bag rack from Caningeraba State School when he brought his daughter to school one morning. He contacted the school with his concerns that the rack might contain asbestos. A school employee in turn spoke with the workers doing the removal, and was assured that the rack did not contain asbestos. Mr. Smith, who himself worked in asbestos abatement, was not satisfied with that response. He contacted a coworker, who happened to be at the city dump at the same time the workers from the school were dumping the material. The coworker took a sample of the material, had it tested, and reported that it did, indeed, contain chrysotile asbestos. Mr. Smith was upset that asbestos removal was improperly taking place at the school while school children were in attendance, with none of the required warning signs or safety measures in place. The Minister of Public Health, who himself has lost a family member to asbestos-related disease, vowed to investigate the matter as well as ensure the proper protective procedures were followed in the future. For the full story, go to http://www.goldcoast.com.au

A century-and-a-half-old chemical company in Columbia is betting its future on an unusual legal strategy that might be called Grace's Last Stand.

Over the years, industrial companies have agreed to pay tens of billions of dollars to resolve asbestos lawsuits filed on behalf of workers who said they used products that caused cancer or lung damage.

W.R. Grace followed the same tack for a while. But pushed into bankruptcy, it now is trying the novel approach of asking a bankruptcy judge to declare many of the roughly 100,000 claims it faces to be invalid.

The company is making the request as part of its effort to emerge from bankruptcy. In order for Grace to exit bankruptcy, the judge must rule on what liabilities the company faces, and that means deciding how many of the claims are valid and what they might total. The judge's decision does not resolve the individual claims, but it could set a standard for further litigation.

The trial started two weeks ago, and already Judge Judith Fitzgerald has allowed the company to introduce testimony purporting to show that diseases were over-diagnosed in many cases.

This case and this trial present the first opportunity for a federal court to set a standard on the basis of which the tens of thousands of asbestos claims that are being pursued can be resolved based upon their merit, a lawyer representing Grace who has a long history defending companies against similar lawsuits.

Grace's move is risky. The judge's decision could mean the difference between whether the company continues -- or watches shareholder value evaporate and its ownership shift to the asbestos claimants. Grace acknowledges it is responsible for around $500 million in claims. The plaintiffs want up to $6 billion, several multiples of the company's market value. Both sides expect the judge to rule in early May.

Opposing lawyers say Grace's move is flawed because it looks to break with more than a decade of tradition in which state courts with juries have settled such lawsuits on a case-by-case basis.

"I don't think anybody would dispute that a personal injury claimant would be entitled to a jury trial. "That's being done away with this approach. And you can do that if you get the consent of the claimants. But you can't do that over their objection."

Calls Throughout the case, Grace's stock price has held up. Though way off highs in the late 1990s, the company's stock is up several hundred percent in the past few years. It closed Friday at $20.64.

The company, which employs 6,400 people worldwide, manufactures chemicals and construction materials. The asbestos at issue was used in fireproofing and insulation products.

Asbestos lawsuits have been a prominent battleground for the competing claims of trial lawyers and corporations over the years, a debate that has played out over weight loss pills, tobacco, silicon breast implants and other products.

Richard A. Nagareda, a mass-torts expert at Vanderbilt University Law School, said such disputes typically end with a settlement. Grace's approach "is a whole change of strategy."

Critics argue that asbestos suits increasingly have featured suspect medical evidence.

"This could be the first time in more than 80 asbestos-related bankruptcies where a court will allow the company to try to prove that thousands of pending claims are bogus and not legitimate," said Lester Brickman, a Cardozo Law School professor at Yeshiva University.

Brickman said that lawyers representing potential claimants often organize mass screenings for people who have been exposed to asbestos. But those screenings, he said, document much higher rates of lung damage than those done in clinical settings.

Frankel challenged that view, saying that it is cancer, not lung damage, that brings most claimants to court. Cancer diagnoses are not as susceptible to abuse because they require more extensive and individualized tests.

A Philadelphia jury has awarded $25.2 million in compensatory and punitive damages in an asbestos suit. In two cases, consolidated with the other suit in a reverse-bifurcated trial, the jury established potential damages of $12.6 million, but the two cases were settled before the liability phase.

The $18.2 million in punitive damages was awarded by the jury in one of the three cases in which the defendants requested Kentucky law be applied. The other two cases ended when the defendants all settled after the compensatory damages phase.

All three cases involved deaths from malignant mesothelioma, a cancer caused by asbestos. The jury in the six-week-long trial before Philadelphia Common Pleas Court Judge James Murray Lynn was picked Jan. 30. The jurors came back with a damages verdict on Feb. 14 in all three cases and handed up a liability verdict in the remaining case on March 14, according to one of the plaintiffs' attorneys, Benjamin Shein of the Shein Law Center. He worked on the case with Bethann Schaffzin of his law firm.

The settlements that occurred after the damages phase are confidential, so it is unclear exactly how much all of the plaintiffs will receive.

The estate of James Baccus, the one plaintiff whose case went to the liability phase and was awarded punitive damages, will receive $7 million in compensatory damages and $18.2 million in punitive damages. In all three of the cases, there were several defendants who settled prior to even the damages phase of the trial, Shein said. Those amounts were also undisclosed.

James Baccus, who has since died of malignant mesothelioma, allegedly worked around asbestos while he served in the U.S. Navy in Philadelphia, making the case relevant to this jurisdiction, Shein said. The majority of his injuries, however, allegedly occurred in Kentucky, where his family now lives, and he once worked for American Synthetic Rubber, according to Shein.

His case, Baccus v. Crane Co., was brought against the Crane Co., John Crane and Yarway, a company. The defendants sought to have Kentucky law apply to the jury's findings in Baccus and the judge agreed.The jury had previously awarded $7 million in compensatory damages to Baccus and apportioned liability in the amount of 45 percent against John Crane, 35 percent against Crane Co. and 20 percent against Yarway, Shein said.

The jury, applying Kentucky law, also found Yarway and Crane Co. "grossly negligent for failure to warn of the dangers of asbestos in reckless disregard of the safety of others," Shein said. The jurors assessed $11.9 million in punitive damages against Crane Co. and $6.3 million against Yarway.

Shein said this is the first case in Philadelphia he has seen in more than 20 years in which a jury awarded punitive damages in an asbestos case. He said the standard for applying such damages in an asbestos case in Pennsylvania is "much, much higher." He said Pennsylvania usually defers the finding of punitive damages until later in the case whereas Kentucky law instructs the court to do it sooner.

The defendants, Shein said, wanted to apply Kentucky law because it uses an apportioned liability standard in which each of the defendants, even those who previously settled, are given an individual portion of liability. The Pennsylvania model is more akin to "in for a penny, in for a pound," Shein said, in which each defendant splits the damages equally.

"The thing kind of backfired on them because the jury held all of the settled defendants zero-percent responsible," he said.

The defendants that settled before the compensatory damages phase of the trial were Ingersoll Rand, THAN, IMO/DeLaval, Westinghouse, Owens Illinois and Goulds Pumps.

Terry Budd and Eric R.I. Cottle of K&L Gates in Pittsburgh represented Crane Co. John Thomas Burns of O'Connell Miller Tivin & Burns in Elgin, Ill., and William Adams of Dickie McCamey & Chilcote represented John Crane. James DelBello of Morgan Lewis & Bockius in Philadelphia represented Yarway.

DelBello said he is "highly confident" that both Yarway and Crane Co. would appeal the compensatory and punitive damages awards. He said he thinks they have a strong case on appeal.

"We agree this is a very unusual verdict," he said.

John Crane, by way of a stipulation, was not part of the punitive damages phase of the case, DelBello said. The compensatory damages phase of the Baccus trial was done with Philadelphia rules under Pennsylvania law. The liability phase, he said, was allowed to go through under Kentucky law and Lynn allowed the punitive damages aspect to go forward.

The other defense attorneys were not available for comment by the time of publication.Troyce Wolf of Waters & Kraus in Dallas joined Shein Law Center in its representation of Baccus.

Richard Scherr died from the same cancer as Baccus at the age of 71 and was survived by his wife, Constance, and nine children. He was allegedly exposed to asbestos while working for PFK-Mark III Inc., a construction company that used asbestos material while building water and sewer treatment facilities, Shein said.

In the compensatory damages portion of the trial, Scherr v. Garlock Sealing Technologies Inc., the jury awarded Scherr's wife and estate $8.6 million against companies Garlock, Fairbanks Morse and Durabla. All three had settled for an unknown amount after the damages phase.

Scherr settled prior to the trial with A.W. Chesterton, Certainteed, Goulds Pumps, Greene Tweed, Hajoca, Lincoln Supply and Melrath Gasket for an undisclosed amount, Shein said.Robert Connor of Segal McCambridge Singer & Mahoney represented Garlock and Fairbanks Morse. David Dogan of Dogan & Wilkinson represented Durabla.

William Wheeler was a union painter who worked in Pennsylvania and New Jersey from 1954 to 2001. He was allegedly exposed to asbestos at several different work sites after he personally used asbestos joint compounds. He died at the age of 67, 12 months after being diagnosed with malignant mesothelioma.

The jury, in Wheeler v. Garlock Sealing Technologies Inc., awarded Wheeler's estate $4 million in compensatory damages against Garlock. Garlock settled with the Wheeler estate for an undisclosed amount after the damages phase of trial, Shein said.

A.W. Chesterton, General Electric, Westinghouse, SPS Technologies, Allied Signal, Pep Boys, Arco, MA Bruder, Georgia Pacific, Bondex and Kaiser Gypsum all settled prior to trial for an undisclosed amount, Shein said.Shein worked with Rick Nemeroff of the Nemeroff Law Firm and Aaron DeLuca of Aaron DeLuca PLC, both from Dallas, in their joint representation of the Wheeler estate.

Leigh Day & Co has achieved a significant settlement for the family of a mesothelioma victim, David Ager. Mr Ager died in 2005 from the deadly asbestos related cancer and his daughter instructed Leigh Day & Co to pursue a claim in relation to his past asbestos exposure.

Before his death, Mr Ager remembered being exposed to asbestos when he had a job interview at Cape’s asbestos factory in Barking, and possibly also from dust that escaped from the same factory when he worked in Barking during the 1960’s. The Defendants never admitted liability for Mr Ager’s illness.

Mr Ager’s case was outside the boundaries of a typical asbestos case, because it did not involve exposure in the workplace and was possibly only limited to a period of two hours exposure during a job interview. Typically cases involve exposure in the workplace and for a much longer period of time. However, the family were able to pursue the case because a statement was taken from Mr Ager before he died.

Margaret died of mesothelioma after washing Charles overalls for years

A HEARTBROKEN pensioner has pledged to battle on in his seven year fight for justice after losing his wife to a killer disease.

Charles Longstaff's beloved wife Margaret died in 2002 after she contracted mesothelioma.

She developed the disease after inhaling asbestos dust while washing her husband's works overalls.

Although Mr Longstaff sued his former employers and was awarded Ј108,000 in 2006 he has still not received a penny in compensation.

The 78-year-old Cleveleys great grandfather today told us: "This has been going on now for seven years and I feel like I cannot lay my wife to rest properly.

"It's not about the money for me. I want someone to be held responsible and for people to know about this.

"My wife was the greatest and I miss her.

Despite the court order, Mr Longstaff's solicitors are still attempting to make insurers pay up.

Mr Longstaff, who was a lagger for 40 years, worked for various companies His wife, who was 71 when she died, was diagnosed with mesothelioma early in 2002 and her condition deteriorated quickly. She died just months later.

Mr Longstaff successfully sued one of the companies he used to work for in the 1960s and 70s, Thornton-based Cape Darlington – also known as Darlington Insulation Company – which no longer exists.

He said: "I used to cycle home in my overalls and they would be covered in asbestos dust, as well as my boots.

"In those days, we didn't realise how dangerous it was. It was everywhere while I was working – all around, so much so it used to get on our sandwiches.

"I have eaten the stuff, breathed it in, been surrounded by it – and yet it was my wife who died because of it.

"This was in the days before washing machines, so Margaret used to wash my overalls using the dolly tub and the mangle. She would wash my overalls two or three times a week.

"I've lost around five former workmates to the same thing."

Mr Longstaff has pledged to continue with his fight.

"For employers' insurance, it's the insurer at the time of exposure, but for public liability insurance, the direction is – it's the insurer at the point at which the mesothelioma starts its path to death.

"That's usually about 10 years before symptoms manifest themselves.

"The problem is many companies, especially smaller firms, may no longer exist.

"Mesothelioma cases can be difficult, not everybody exposed to asbestos will develop it and those who do, it can be 20, 30, 40 or 50 years later before the symptoms show."

In a High Court case in 2004, it was ruled employers could have foreseen that wives of employees exposed to asbestos would also be at risk when washing their husbands' clothes.

Teresa Maguire had developed mesothelioma after being exposed to asbestos from the workclothes of her husband who worked at a shipyard in Liverpool.

In another case in 2007, the family of a woman known only as Mrs R were awarded Ј80,000 compensation after she died in 2004 from mesothelioma as a result of washing her husband's work clothes in the 60s and 70s.