An Illinois federal judge has barred a plaintiff alleging asbestos-induced lung cancer from relying on the any exposure theory at trial.
Judge John Z. Lee delivered the Dec. 22 opinion in the U.S. District Court for the Northern District of Illinois, rejecting the any exposure theory.
Defendants Crane Co., ExxonMobil Oil Corporation, Owens-Illinois, Inc., and Marley-Wylain Company requested the court to exclude the any exposure theory and to bar plaintiff Charles Krik from calling certain witnesses at trial who plan on relying on the any exposure theory in their testimonies.
Lee explained that the any exposure theory “posits that any exposure to asbestos fibers whatsoever constitutes an underlying cause of injury to the individual exposed.”
Krik claims he developed lung cancer as a result of asbestos exposure and sought to present testimony from experts Dr. Arthur Frank, Dr. Arnold Brody and Frank Parker, who intended to testify that each and every asbestos exposure caused the claimant’s lung cancer.
While the court denied the defendants’ motion to bar certain witnesses, Lee granted their request to exclude the any exposure theory. He concluded that Krik failed to establish that the any exposure theory is sufficiently reliable to warrant admission.
The court applied the Daubert factors when determining the issue of asbestos injury causation.
Applying the Daubert factors, the defendants argued that the any exposure theory is speculative and is not scientifically reliable because it ignores a “fundamental principle of toxicology – that the ‘dose makes the poison.’”
They added that the any exposure theory “allows a plaintiff to skirt this fundamental principle by wholly bypassing the dosage requirement.”
Krik, on the other hand, claimed the methodology used in the any exposure theory was proper.
He argued that Illinois law does not require plaintiffs to quantify their individual exposure levels in order to establish causation.
Lee wrote that even though Krik and his experts have acknowledged that asbestos-induced lung cancer is a dose-responsive disease, the plaintiff still intended to have his experts testify that any exposure to asbestos, regardless of dosage, is sufficient to cause an asbestos related disease.
Lee also notes that Krik failed to offer any expert testimony explaining how much asbestos exposure he actually experienced and whether the dosage was even sufficient enough to cause his disease.
“Krik’s argument that a single exposure or a de minimis exposure satisfies the substantial contributing factor test under Illinois law incorrectly states the controlling law: it is not that de minimis exposure is sufficient, but that more than de minimis exposure is required to prove causation,” he wrote. “Krik’s argument, therefore, is unavailing.”
Instead, the claimant relied on the any exposure theory to prove causation for lung cancer, a disease with many causes ranging from asbestos exposure to cigarette smoke.
Furthermore, the any exposure theory is inadmissible because Krik’s experts failed to base their opinions on facts specific to this case, the judge ruled. Read more
By Ruth Lamperd, Herald Sun
But the catastrophic effects of the Wunderlich factory in Sunshine North have not been revealed to residents despite owner CSR paying compensation to victims.
A five-month Sunday Herald Sun investigation can today reveal the tragic toll of Melbourne’s “factory of death”, which shut in 1983.
At least 16 people who grew up within 1km of the plant — none of whom worked there — have died of asbestos-related diseases, the latest on Thursday. Another eight are known to be sick.
Residents said that on some days asbestos would swirl in clouds above the suburb and a white powder would cover windows and car dashboards in the factory’s peak years from the 1950s until the 1970s.
Allan Brander grew up in a street north of the Wunderlich factory and spent many weekends riding his bike over hectares of waste.
His son, Damian, said his father died a painful death last year, five months after being diagnosed with mesothelioma. Read more
Contact the journalist: email@example.com
“The disease ate him alive. If I grew up there I’d be concerned about my health now,” Mr Brander said.
BY Bonhia Lee, http://www.fresnobee.com/
Asbestos removal in the nearly century-old house, which was once used as a Halloween attraction and featured on a number of ghost investigation television shows, began Monday, paving the way for demolition of the building early next month.
The city of Clovis has forged ahead with plans to clean up the 1.25-acre property, southwest of Sierra Vista Mall on Clovis Avenue, after trying to work with owner Todd Wolfe on giving the house and the land a new life.
“We’ve been working with Mr. Wolfe for at least the last five years to do something with this site,” said John Holt, Clovis assistant city manager. “Ultimately, he was either unwilling or unable to either have investors put money in the project.”
Wolfe, however, is still trying to sell the house and even offers to donate it for free to the right buyer who is willing to move it. If all his efforts fail, he hopes to at least be given some time to salvage anything of historical value from the house so he can sell it later.
“We thought we had more time,” Wolfe said.
Clovis designated the house “unsafe to occupy” about two years ago. Then the city’s Board of Appeals declared the vacant house a nuisance last year and a danger after finding 22 building code violations.
The city described the structure as “unsightly and in a state of disrepair.” The roughly 5,000-square-foot house had excessive “cracking, peeling, chalking, dry rot and warping.” Read more
By Alex Strauss, http://survivingmesothelioma.com/
There is new evidence that some wine-making practices could increase the chance of developing malignant pleural mesothelioma. Italian researchers are reporting the first case of mesothelioma in a person whose only known exposure to asbestos was in the winemaking business.
The man worked for an Italian winemaker from 1960 to 1988. According to the authors of the new report, the winemaker treated the wine for impurities using a filter made of asbestos. As authors Alessandro Nemo and Stefano Silvestri of Florence’s Institute for Study and Prevention of Cancer explain, “The filter was created by dispersing in the wine asbestos fibers followed by diatomite while the wine was circulating several times and clogging a prefilter made of a dense stainless steel net.”
Drs. Nemo and Silvestri report that the asbestos exposure which probably triggered the man’s mesothelioma could have occurred during the mixing of dry chrysotile asbestos fibers into the wine as well as during the filter replacement. The researchers had to estimate the average level of the patient’s exposure and the cumulative dose since winemakers do not typically monitor airborne asbestos fibers.
Although this is the first mesothelioma case associated exclusively with the winemaking business, asbestos exposure in winemaking is not unheard of. Since 1993, the Italian National Mesothelioma Register has recorded 8 cases of mesothelioma where the patient spent at least part of his working life in the winemaking business. Read more
BY Jordan Schrader, http://www.thenewstribune.com
The state has fired the supervisor of an inmate work crew that used shoddy and potentially dangerous work practices in cleaning up asbestos, records show.
The agency deployed a crew of about eight male inmates from Cedar Creek Corrections Center in Littlerock in June 2013 to remove and dispose of 4,000 square feet of old vinyl floor tiles and adhesive in a dining area of the Washington Corrections Center for Women in Purdy.
In charge was Gary L. Baldwin, the head of the asbestos program. Baldwin is a 19-year veteran of the agency with 15 years as a certified asbestos supervisor and a clean record of performance evaluations.
At times, the inmates didn’t wear proper protective equipment or soak the dry material in water to keep dust out of the air. The crew continued working even after realizing the air-circulation system couldn’t be turned off, and it missed a spot while putting up a barrier around the dining area.
“Your actions potentially placed offenders, employees, and yourself at risk of life threatening diseases and death, as well as placed the agency at an enormous risk of future liability,” Danielle Armbruster, assistant director of DOC’s Correctional Industries, wrote in a letter dismissing Baldwin.
The agency provided the April 15 letter in response to a records request.
Baldwin is appealing the decision, the agency said. Attempts to reach him last week were unsuccessful.
When questioned by investigators, he alternately described what was done as common practice and blamed inmates for failing to follow procedures they had been taught.
By Heidi Turner, http://www.lawyersandsettlements.com
Asbestos lawsuits often involve construction workers and employees who were exposed to products that were packed with asbestos, but some asbestos lawsuits involve drilling mud. Although drilling mud itself does not sound particularly harmful, according to lawsuits filed by people who worked with the substance, asbestos was used as an additive to drilling mud, putting people who work with the mud, such as mud engineers, at risk of asbestos-related diseases.
One such lawsuit was filed in Louisiana state court, but removed to federal court in 2013. That lawsuit (Bridges et al v. Phillips 66 Co. et al., case number 3:13-cv-00477) was filed by 10 plaintiffs who allege they were exposed to asbestos, including handling asbestos and breathing it in, while working for a variety of companies including Chevron Phillips Chemical Co., and Shell Oil Co.
The plaintiffs further allege they developed illnesses related to asbestos exposure because of their work for those companies. They claim the companies knowingly used products that contained asbestos and, despite having information about the risks associated with using asbestos, continued to use those products.
Asbestos exposure has been a highly contentious area of litigation. Over the course of a career, employees could be exposed to asbestos from a variety of employers and product makers. Furthermore, symptoms of asbestos-related illnesses may not arise for decades after the exposure.
Among the illnesses linked to asbestos exposure are asbestosis, mesothelioma and lung cancer.
Drilling mud is used to keep the drill bit cool and to flush the well hole. It is usually mixed on-site, with asbestos mixed directly into the drilling mud because of its heat-resistant quality. Many workers, however, may not have realized the additive they were mixing into the drilling mud was toxic. They may have mixed the asbestos without wearing proper safety gear or taking proper measures. Read more
By Megan Bard | firstname.lastname@example.org
A Webster man has been found guilty of improperly removing and disposing of asbestos and failing to provide a teenager contracted to help with the work with protective clothing during a 2008 job, according to the state attorney general’s office.
Daniel Watterson, 43, a plumbing and heating contractor working under three different company names, was found guilty of three charges of violating the Massachusetts Clean Air Act after a five-day jury trial in Worcester Superior Court, Attorney General Martha Coakley said in a news release on Monday. Watterson, whose companies were called “The Clog Specialist,” “Dan the Heating Man,” and “DW Plumbing & Heating,” was not appropriately licensed to do the work.
Watterson had been charged with failing to file notices of asbestos removal with the Massachusetts Department of Environmental Protection; improper removal of asbestos-containing material; and improper disposal of asbestos-containing Materials.
Watterson was also found guilty of one count of child endangerment after he hired a teenager to remove asbestos insulation from around two old boilers in a Worcester residence and then demolish and dispose of the boilers. This was the first use of the child endangerment statute in an asbestos case, according to Coakley. Read more
By Emma Macdonald, http://www.canberratimes.com.au
At least one Canberra family is grappling with a family member being diagnosed with asbestosis – the likely result of exposure to Mr Fluffy asbestos which they installed in their home in the 1970s – while other families are having health checks for potential lung damage.
Meanwhile, anger over ACT government inaction on the issue is mounting among Mr Fluffy homeowners who believe their contaminated houses present a sleeping giant of potential cancer cases.
The Mr Fluffy Owners and Resident’s Action Group – which has over 300 members since setting up last month – has provided a “community voice” section on its website to allow victims to express their fears without risking their anonymity.
Catherine (no last name provided) wrote of her experience having Mr Fluffy installed in her home in 1976 after “being assured it was mineral wool and definitely not asbestos. When we decided to extend our home in 1985 and this blue fluffy stuff blew all around the house, we discovered it was asbestos and we became homeless with our four kids for over three months while the asbestos was partially removed and the rest sealed into the roof cavity.”
The home was part of the $100 million federal government remediation program in the late 1980s. Catherine said the family moved out in 2000 and the house was burnt down in the bushfires of 2003.
“We have recently discovered that one member of the family has asbestosis – some calcification of the lungs – and is waiting to see a pulmonary specialist. We would be very interested in being part of a class action against the Commonwealth government and wonder why there has been no attempt at finding and prosecuting Mr Fluffy for causing such a huge environmental and public health disaster.” Read more
By Nic Fleming, http://www.psmag.com
Health fears associated with asbestos were first raised at the end of the 19th century. Asbestosis, an inflammatory condition affecting the lungs that causes shortness of breath, coughing, and other lung damage, was described in medical literature in the 1920s. By the mid-1950s, when the first epidemiological study of asbestos-related lung cancer was published, the link to fatal disease was well established.
“Asbestos-related diseases disproportionately affect working-class people in semi-skilled or unskilled jobs, their relatives, and others who lived near the factories. There was this tremendous death toll but it didn’t have big repercussions because they were ‘just working-class people.”
Yet in 2012, rather than falling, worldwide asbestos production increased and international exports surged by 20 percent. A full ban did not come into force in the U.K. until 1999, and the European Union’s deadline for member states to end its use was just nine years ago. Today, asbestos is still used in large quantities in many parts of Asia, Eastern Europe, and South America, while even in the U.S. and Canada, controlled use is allowed.
The remarkable endurance of this magic mineral turned deadly dust is a complex tale. One of scientific deception and betrayal, greed, political collusion, the power of propaganda, and, above all, the willingness of some executives to knowingly subject hundreds of thousands of vulnerable people around the world to severe illness and even death in the pursuit of profit.
You may not have to look hard to find asbestos where you live or work. Many buildings still have asbestos-based components, including pipe insulation, decorative coatings, ceiling boards, fireproofing panels, window in-fill panels, and cold water tanks.
Research into precisely how asbestos causes mesothelioma and other forms of lung cancer is ongoing. The fibers are so small that most can only be seen under a microscope. Billions can be inhaled in a single day with no immediate effect, but longer-term the consequences can be deadly.
The fibers can become lodged in the lining of organs such as the lungs, causing damage that interrupts the normal cell cycle, leading to uncontrollable cell division and tumor growth. Asbestos is also linked to changes in the membranes surrounding the lungs—the pleura—including pleural thickening, the formation of scar tissue (plaques), and abnormal collections of fluid (pleural effusion).
“There is absolutely no doubt that all kinds [of asbestos] can give rise to asbestosis, lung cancer, and mesothelioma,” says Paul Cullinan, professor of occupational and environmental respiratory disease at the National Heart and Lung Institute, Imperial College London. “It’s probably the case that white asbestos is less toxic in respect to mesothelioma than the amphiboles. The industry tries to argue that you can take precautions so that white asbestos can be used safely, but in practice, in the real world, that is not what is going to happen.”
This is the firm scientific consensus. But not everyone agrees.
“One of the first things that strikes you when you look at asbestos is just how long ago it was discovered to be toxic,” says Geoffrey Tweedale, former professor of business history at Manchester Metropolitan University. Following a U.S. legal case in 1995, Tweedale and fellow historian David Jeremy obtained a copy of the T&N company archive. They studied the almost one million documents and Tweedale went on to co-write two books on asbestos and the industry.
What this extraordinary collection of internal papers showed was how much some senior figures in the asbestos industry knew about the damage they were causing to their workers, and how their response was to launch a campaign of scientific concealment and distortion, and public misinformation that dates back over 80 years and continues today.
In 1927 a doctor called Ian Grieve wrote a detailed study of the health of workers at the J.W. Roberts asbestos textile plant in Leeds. He used X-rays to confirm his evaluation that the hand-beating of asbestos mattresses for locomotives (to remove lumps) could cause asbestosis within five years. A government inquiry set up a year later found that a quarter of workers with five or more years of experience in asbestos textile factories had fibrosis, rising to half of those who had worked in the industry for 10 years. Regulations on dust control, medical surveillance, and compensation were introduced in Britain in 1931.
Two years after Grieve’s findings, executives from U.S. asbestos companies Johns-Mansville (the owners of the Jeffrey Mine) and Raybestos (a manufacturer of automotive parts) asked Metlife, the country’s largest insurer, to investigate whether the mineral was an occupational hazard for workers at five textile mills. It was found that only 17 of 108 male workers studied and three of the 18 women were free of asbestosis. These results were not published. Read more
By Rick Kornak, http://www.mesothelioma.com
Washington state’s Department of Corrections (DOC) has put an end to a 23-year-old program that employed inmates for asbestos abatement projects.
Although the DOC has claimed the matters are unrelated, the program’s termination comes not long after a recent investigation by the Department of Labor and Industries, which found that seven crew workers at the Washington Corrections Center for Women may have inhaled asbestos-containing dust in June, 2013. The work involved two nine-hour shifts of removing contaminated floor tiles.
“They were allowing the workers to be exposed to asbestos,” said Elaine Fischer, a spokeswoman for the Department of Labor and Industries. Although the amount of exposure is unclear, Fischer pointed out that any inhalation of asbestos fibers can be detrimental to one’s health. “There’s no minimum safe amount of exposure,” she said. Inhaling airborne asbestos fibers can lead to a variety of respiratory health problems, including fatal afflictions, such as mesothelioma.
The DOC was originally fined $141,000 for the violations, but this amount was halved when the agency agreed to do additional training and purchase more equipment. The inmates were trained and certified for asbestos removal, but the investigation done by the Department of Labor and Industries led to the discovery that proper procedures were not being followed at all times. The contaminated material was not always wet down, as it should be, and masks, gloves, and other protective equipment was worn inconsistently. Read More