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This column appeared on July 17, 2009 in the Daily Journal. It is reprinted with permission of the Daily Journal.

By Dean A. Hanley

Each year, 3,000 Americans develop asbestos cancer, known as mesothelioma, a very rare and rapidly fatal cancer of the lining of the lungs, heart, abdomen or testicles, caused only by asbestos. Nearly all victims of asbestos cancer will die within six to 18 months of diagnosis. Typically their asbestos exposure occurred on the job where they worked around construction materials that contained small amounts of asbestos.

They came into contact with asbestos from insulation aboard ships and in industrial refining facilities, or from wallboard finishing compounds and sprays, fireproofing, brake linings, cement pipe and gaskets and packings commonly used in valves and pumps, automobile engines, refrigeration and air compressors. It was even used in ordinary lawnmowers.

The workers themselves are invariably without fault in their own demise. Never warned, usually unaware that the materials they were handling contained asbestos, they unwittingly poisoned themselves by breathing invisible and odorless asbestos. Often they brought these invisible fibers home on their clothes, hair and shoes. In so doing, they exposed their wives and children to asbestos, some of whom develop asbestos cancer 20-40 years later.

Asbestos victims have recourse in California if they can prove that they were exposed in California. Many who now live throughout the United States served their country in naval shipyards located in California where they and their families suffered exposure to asbestos. When that victim can satisfy a judge and jury that a defendant’s products or actions were a substantial factor in contributing to his risk of developing asbestos cancer, he may hold the company liable for its proportion of fault in causing his disease.

To the extent his economic damages are not offset by settlements secured from responsible bankruptcy trusts or other defendants, he can hold the defendant responsible for the remainder of his out-of-pocket losses incurred because of his asbestos cancer. Since his life expectancy is measured in months rather than years, California affords him an opportunity to have his day in court before he dies. The jury must determine all of the entities at fault for causing the asbestos cancer and attribute to the remaining defendant its appropriate share of that fault.

For many people like Jim Morrison, the California system works to help compensate that which can never truly be compensated. Having never smoked a cigarette in his life, at the age of 54 he was diagnosed with cancer from asbestos and given only months to live. His primary goal was to live long enough to see his engaged daughter marry later in the year.

With nearly $2 million in lost earnings as the owner of his own plumbing business and more than $500,000 in medical bills, he sued the three dozen companies that caused his cancer. His doctors opined that from a medical and scientific perspective, the cause of his cancer was clear: the totality of all of the asbestos he was exposed to during his working life. Virtually all of the exposure occurred in very small doses, scraping some gaskets here and there, sweeping up debris, wiping down his workbench and wearing work clothes that were never truly free of asbestos even after going through the washer and dryer.

While Jim never saw it coming, many of the companies he sued did. One of those companies declared in a 1966 memo that “people who made a good living working with asbestos may as well die from it. They have to die from something.” Others demonstrated their disregard for human safety by continuing to sell the asbestos Jim was exposed to into the late 1980s when it was well understood that exposure to the smallest amounts of asbestos will cause cancer in some people. The jury found that defendant Copeland Inc. was negligent for failing to recall or retrofit dangerous products still on the market and in the field today. In that regard, Jim’s personal lawsuit served a larger good.

By contrast, overly aggressive defense of these lawsuits harms society. Defense experts have peppered the scientific literature with false and unscientific conclusions in an effort to create medical defenses that would not otherwise be available. These “experts” have manufactured an argument that 95 percent of the asbestos historically used in the United States does not cause asbestos cancer – in direct conflict with the findings of every U.S. and intergovernmental agency, regulatory body and disinterested scientific organization that has studied the issue. Busy physicians glancing through abstracts of articles created by those companies and their “experts” are often understandably unaware that they need to consider the source of that information – a source often undisclosed.

When a company manufacturing equipment with asbestos components considers itself “unfairly targeted,” we should question what is unfair. Surely there is nothing unfair about holding a company responsible for its share of the fault in causing an injury. Is joint and several liability unfair? Joint and several liability for economic damages is a policy judgment made by the people of California that applies to all cases, not just asbestos cases.

If a company that had a substantial hand in causing the injury cannot be held responsible for such damages, who should be? Are we prepared to advocate for a system in which an injured victim has no recourse against the culpable company that hurt him or his family? Should asbestos victims instead look to public assistance programs when their livelihood has been taken from them or their families?

The idea that the source of the industry’s problem is lawyers from outside California is likewise untenable. If the companies weren’t killing Californians in such high numbers, there wouldn’t be such work for those lawyers and the world would be a better place.

Many asbestos victims spent a working lifetime repairing equipment covered with asbestos insulation on the outside and asbestos gaskets and seals on the inside. Despite that the equipment manufacturers specified and often supplied the asbestos and knew the deadly consequences of handling asbestos when performing ordinary maintenance and repairs on their equipment, their own repair manuals were silent about the hazards and simple precautions – masks, ventilation and wetting the material – that would have prevented the harm.

Now, the lawyers for many of these asbestos-laden pump, boiler and turbine makers shrug in feigned disbelief that their clients are being sued for this conduct. These companies could and should have played an important role in preventing the asbestos public health disaster, but they too, like their counterparts in the asbestos insulation business, chose the pursuit of profits over workers’ lives. They belong in court to answer for their inexcusable conduct.

Way back in the 1930s, scientists understood that asbestos caused fatal disease. By the 1940s, California was regulating asbestos. If those regulations had been followed, little disease would have occurred and alternatives to asbestos would have been found. By the 1950s, asbestos was established as a carcinogen. By 1961, researchers found that exceedingly low amounts cause asbestos cancer, and that the risk extended to families of people who worked around asbestos and lived near factories where it was used.

There was a time when many asbestos companies mocked victims by saying they had to “die from something” anyway. As recently as the 1970s, when Union Carbide salesmen selling raw asbestos fiber to great profit and promoting its use in a wide variety of products throughout the United States, including in our homes and schools, triumphantly proclaimed in memos that an unsuspecting customer “didn’t even know it was asbestos” that he was buying.

Now that the devastation of disease that asbestos companies have caused is leaving its true legacy in this country by its rising death toll, they should not complain how the civil justice system is unfair to them. What’s unfair is that they promoted asbestos and concealed its danger.

Dean Hanley has represented asbestos plaintiffs in California for 17 years and is a founding partner of Paul & Hanley with offices in Los Angeles and Berkeley.

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(c) 2009 Daily Journal Corporation. All rights reserved.

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Many victims are military veterans and naval shipyard workers who became exposed to the deadly fibers while protecting our nation. They never saw the disease coming, but corporate executives who became rich off asbestos knew well the dangers.

Documents that have become public largely because of asbestos-related litigation prove that captains of the asbestos industry knew about the hazards in the 1930s. Some cynical executives shrugged off the dangers as late as the 1960s. By the 1970s, documents show, industry leaders were coaching people about how to allay public concerns.

In the 1930s and 1940s, Sumner Simpson was president of Raybestos Manhattan, Inc., a prominent manufacturing company based on Connecticut that used asbestos in its products. The company’s history calls Sumner a visionary.

Letters, studies and other documents he wrote, received and stowed have been dubbed the Sumner Simpson Papers, and likened to the Pentagon Papers of the asbestos industry. They prove knowledge about the dangers of asbestos at the highest levels dating back eight decades.

The editor of an occupational journal sent Sumner a letter dated Sept. 25, 1935, seeking permission to publish an article about the hazards of asbestos.

“Always you have requested that for certain obvious reasons we publish nothing and naturally your wishes have been respected.”

On Oct. 1, 1935, Simpson wrote a note to his colleague Vandiver Brown, secretary of Johns-Manville Corp., the preeminent asbestos miner, manufacturer, seller and distributor in the Western world between the 1930s and the 1970s.

“I think the less said about asbestos the better off we are … “

Brown replied two days later, Oct. 3, 1935:

“I quite agree with you that our interests are best served by having asbestosis receive the minimum publicity.”

Brown went on to suggest that if an article were to appear that it use “American data rather than English.” The reason was clear: The American study was sponsored by Raybestos, Manville, and Metropolitan Life Insurance Company, the insurance carrier for the asbestos giants, and drew far less alarming conclusions than British studies.

Edward Ames wrote an infamous memo dated Jan. 7, 1942. Ames was in marketing for  Owens-Corning Fiberglas Corp.  In the 1940′s, Owens-Corning sought to compete with asbestos insulation makers by selling fiberglass-based insulation.  In his memo, produced in discovery during a lawsuit in the early 1980′s, Ames urges that his firm compete with the asbestos industry by pointing out the dangers of asbestos.

“The following plan is suggested: 1) Gather as a weapon-in-reserve an impressive file of photostats of medical literature on asbestosis … This file would cover five or six hundred pages, which can be microphotographed in the library of the Surgeon General in Washington or in some other medical library.”

Tragically, Owens-Corning decided in about 1952 to make and sell asbestos containing insulation, and became Johns-Manville’s main competitor in most of the U.S. from the mid-1950′s into the mid-1970′s.

Twenty years later, the cognoscenti knew of the dangers even as they expanded the uses of asbestos while keeping workers in the dark. Asbestos was used extensively in braking and clutch systems for cars, trucks and industrial machinery.  Bendix was a major manufacturer in this area through the 1990′s. 

By the mid-1960s, some consumers and sellers became concerned about the health implications of asbestos fibers. Ed A. Martin was a Bendix officer, who wrote to a major supplier of the asbestos fiber in Bendix’ products in this letter, dated Sept. 12, 1966:

“My answer to the problem is: if you have enjoyed a good life while working with asbestos products why not die from it. There’s got to be some cause.”

By 1971, industry executives started taking a different tact. A Union Carbide letter dated Dec. 31, 1971, describes one of its products, Calidria, and says of the customer:

“He did not even realize Calidria was asbestos!” 

“I chose not to rock the boat with any warnings or suggestions.”

As more people started asking questions, industry executives started taking a different tact. In June 1972, executives suggested a script for sales persons who might be confronted by worried customers:

“Set the mood. Controlling the conversation is paramount.”

The letter goes on to urge that if customers become irate

“A certain amount of aggressiveness may be effective.”

Asbestos’ cancer-causing potential is well-known, and described by the National Cancer Institute here. The onset of illness can come decades after their exposure.

Asbestos’ toll continues to mount, in lives and dollars. One jury in Washington state recently awarded $10 million toHenry Barabin, a retired Crown Zellerbach Paper Mill, and his wife, Geraldine. 

In a study released in 2009, the Centers for Disease Control found that 18,068 people died from malignant mesothelioma in a seven-year period ending in 2005, and that the number of deaths is rising, from 2,482 in 1999 to 2,704 in 2005. Here is a link to the study, and a link to a news article about the study. Here is a list of products compiled by the EPA that contain asbestos.

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The suit had been brought by the widow and sons of William Goebel, who worked as a maintenance man and died in September 2008.  The suit alleged that exposure to chrysotile asbestos in the brake pads, clutches and drywall products produced by the defendants.

But Daily Journal reporter Dhyana Levey writes the defense attorneys argued that those products didn’t contain enough asbestos to cause Goebel’s death.  Those attorneys maintained the likely cause was Goebel’s exposure to amosite asbestos while he served on the USS Porterfield, which had more than 30 tons of insulation that contained asbestos.

Five other defendants in the case settled before the verdict, paying a total of more than $2 million, according to Ford’s attorney James J. Yukevich.

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Both plaintiffs were married to men who died from asbestos exposure after working in the engine rooms of aircraft carriers while serving in the Navy in the 1960.  The case filed by Vickie Taylor was dismissed before trial in the 1st District Court of Appeal in San Francisco early this year.  But in September the 2nd District Court of Appeal in Los Angeles sided with Barbara O’Neal in the suit she filed after her husband’s death.

The 1st District Court of Appeal said companies that made products used in the engine rooms, such as valves and pumps, couldn’t be held liable because their products had no asbestos.  The 2nd District Court of Appeal ruled the manufacturers should be held accountable because they knew their products would be wrapped in asbestos to protect them from the heat produced by the ship’s boiler.

“The two diametrically opposed appellate opinions have thrown thousands of asbestos cases into a state of confusion,” Los Angeles Daily Journal reporter Laura Ernde writes.  “Trial court judges are essentially forced to pick one point of view or the other.”

Ernde quotes advocates for both points of view who use food analogies to explain their reasoning.

[Mark] Behrens [counsel for an insurance company non-profit that files friend-of-the-court briefs in asbestos cases] uses the example of a peanut butter sandwich. You wouldn’t hold a bread manufacturer liable for hurting someone who had a peanut allergy, Behrens said.

But plaintiffs’ lawyer Jeffrey I. Ehrlich of Claremont said the better food analogy in this case is a Reese’s peanut butter cup.

“It wouldn’t matter who manufactured that peanut butter,” he said. “You have the chocolate and the peanut butter. They’re bound together in one product.”

Likewise, asbestos gaskets were essential in connecting the valves and pumps to other equipment in the engine room. When the equipment wore out, the manufacturers knew that the asbestos gaskets would have to be scraped, creating hazardous dust, and then replaced with more asbestos, said Ehrlich, who worked on O’Neil’s appeal.

Asbestos manufacturers have gone bankrupt, so victims of asbestos exposure are looking for negligence by solvent companies in seeking compensation for their injuries.  O’Neil filed suit against Crane Co., while Taylor sued Elliott Turbomachinery Co. Inc.

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