Asbestos

When Will the EPA Ban Asbestos?

September 8, 2019 | Throneberry Law Group

Many people assume that asbestos has been banned from commercial, industrial, and military use, but the truth is that the substance, often used as an insulation, is merely so heavily regulated that it is “effectively” banned. Federal regulations put in place since the 1970s have essentially outlawed use of asbestos by making it extremely difficult to obtain approval from the federal government for approval of new uses of the substance.

However, that does not mean innocent people are still not suffering harm from asbestos exposure. Only a few dozen countries have complete bans on asbestos and several others are beginning to increase their exports of the mineral to emerging markets worldwide. Thanks to a new rule that went into effect in June, the U.S. could soon allow new uses of asbestos to be studied and possibly grow the market here.

That rule came to an amendment of the Toxic Substances Control Act (TSCA) which prohibits manufacturing, processing, and distribution of commercial asbestos as well as asbestos-containing mixtures and articles used for other purposes. While the Environmental Protection Agency (EPA) maintains the changes to the TSCA only allow the agency to monitor the development, use, and disposal of dangerous substances, including asbestos, critics worry it would open the door to revive asbestos usage.

Florida Appeals Court Denies Company’s Request to Block Testimony in Asbestos Cancer Lawsuit

September 2, 2019 | Throneberry Law Group

A Florida state appeals court recently denied a motion by the defendant in an asbestos cancer lawsuit to bar testimony from one of its company executives who plaintiffs say would have inside knowledge about the defendant’s history and interactions with asbestos-containing products, as well as its adherence to occupational health and safety laws. The mesothelioma cancer lawsuit names utility company Florida Power & Light Co. as the defendant and accused the business of knowingly exposing the plaintiff to dangerous carcinogens which caused his cancer diagnosis and other health problems.

According to the mesothelioma cancer lawsuit, originally filed in 2017 in Miami-Dade County Circuit Court, the plaintiff developed mesothelioma from decades of asbestos exposure over the course of his employment at Florida Power & Light Co. The plaintiff asserts that the company’s negligence is responsible for his deadly cancer diagnosis by allowing him to work with and around asbestos at power plants operated by Florida Power & Light without any warning about the dangers posed by the carcinogenic material.

In its defense of the lawsuit, Florida Power & Light Co. sought a court’s injunction to block the plaintiff from deposing corporate representatives who would testify about the victim’s work conditions at the time of his employment. According to court documents, “FPL moved for protective orders from each notice and in support, submitted an affidavit prepared by its senior attorney, stating that compliance and production would require FPL to expend significant time, be voluminous and would cost millions of dollars.”

Causes and Symptoms of Mesothelioma

August 25, 2019 | Throneberry Law Group

Mesothelioma is a rare and deadly form of cancer caused by exposure to asbestos fibers. Asbestos is a naturally occurring mineral once used in a variety of industrial, commercial, and military applications mostly for its ability to be molded into almost any shape, as well as its heat-resistant properties. Unfortunately, the widespread use of asbestos attributes to 3,000 annual diagnoses even to this day.

Asbestos was once commonly used in vinyl flooring tiles, home insulation, auto parts-such as brakes and gaskets, and even in everyday appliances like ovens. The mineral found extensive use in industrial applications for pipefitting, steamfitting, and other heavy-duty insulation and gasket-making applications. Asbestos was once widely used in military applications aboard Navy ships in engine rooms.

One of the main complications with mesothelioma is its latency period – the time between exposure and diagnosis, which can be anywhere from 20 years to 50 years, leaving patients with diminished treatment options upon diagnosis. The type of mesothelioma discovered can also further complicate matters. The three main types of mesothelioma are:

Federal Evidentiary Hearings in Johnson & Johnson Asbestos Cancer Lawsuits

August 17, 2019 | Throneberry Law Group

A New Jersey federal judge held key evidentiary hearings in coordinated pretrial proceedings covering thousands of asbestos talcum powder lawsuits against Johnson & Johnson through the process of multidistrict litigation (MDL). Lawsuits involved in MDL allow both sides to conduct common discovery in cases to apply rules at trial which will apply at trial for all the individual cases, a procedure which may benefit both plaintiffs and defendants depending on the judge’s rulings.

Of particular importance to the pretrial MDL hearings in the asbestos cancer lawsuits are the expert witnesses identified by the plaintiffs to testify at trial. Those expert witnesses include biologists, physicians and epidemiologists who have concluded there is scientific evidence that talc use can cause ovarian cancer. Back in May 2019, Johnson & Johnson asked the federal judge overseeing the MDL process to exclude the opinions of 22 expert witnesses retained by the plaintiff on the grounds these individuals “they misapply scientific principles” and “engage in unsupported leaps of logic.”

Attorneys for Johnson & Johnson have said in media interviews that an exclusion of some or all of the plaintiffs’ witnesses along with a judge’s ruling there is insufficient evidence of causation to present to any jury would wipe out the majority of the cases before they could see a courtroom. On the other hand, the plaintiffs’ lawyers have asked the judge to deny Johnson & Johnson’s request, arguing their expert witnesses are qualified and rely on sound methodologies to reach their opinions.

Federal Judge Denies Johnson & Johnson’s Request to Transfer Thousands of Asbestos Cases Out of State Court

August 10, 2019 | Throneberry Law Group

A federal judge recently denied a request by pharmaceutical and cosmetics giant Johnson & Johnson to transfer thousands of asbestos cancer lawsuits from various state courts under one single federal court. The move comes after Johnson & Johnson’s one-time co-defendant and talc supplier, Imerys Talc USA, declared bankruptcy in the face of an estimated 14,000 other asbestos cancer lawsuits filed against the pair over allegations the two produced carcinogenic talc-based products for decades.

Johnson & Johnson had asked a Delaware federal district court judge to transfer some 2,400 talcum powder asbestos cancer lawsuits to her court in the wake of co-defendant Imerys filing for federal Chapter 11 bankruptcy protection. Had Johnson & Johnson been granted the motion, the company would have been able to conduct common discovery on the asbestos cancer lawsuits under a unified jurisdiction, potentially giving the company more leverage to settle or otherwise resolve the claims.

“The judges in the states who are already handling these cases are better suited to hear the claims before them than is this Court, which would have to hear thousands of cases and apply different state laws to each,” the federal judge said. The judge’s ruling noted her federal court did not have the authority over the lawsuits against Johnson & Johnson due to the fact that the company’s co-defendant filed for bankruptcy in that court and that it failed to establish the lawsuits against it affect Imerys and the bankruptcy proceedings.

States Sue EPA Over Asbestos Rules

August 3, 2019 | Throneberry Law Group

10 U.S. states and the District of Columbia recently filed a lawsuit against the Environmental Protection Agency (EPA) to force the agency to tighten rules regarding the oversight of asbestos and reduce the possible harm to the public posed by the mineral’s use. The suit is being led by the states attorneys general of California and Massachusetts, Xavier Becerra and Maura Healey, with Connecticut, Hawaii, Maine, Maryland, Minnesota, New Jersey, Oregon, Washington, and the District of Columbia joining.

“Asbestos is a known carcinogen that kills tens of thousands of people every year, yet the administration is choosing to ignore the very serious health risks it poses,” Healey said in a statement to the press. While federal laws have regulated asbestos to the point where the substance is effectively banned from use, changes to the Toxic Substances Control Act (TSCA) passed by Congress in 2016 would create a pathway for lessening regulations.

The lawsuit comes after the plaintiffs request for the EPA to collect more data on asbestos was denied by the agency in which it determined that the EPA was already aware of all current uses of asbestos, and had the essential information needed to assess the risks. To that point, the EPA points to an April 2019 rule giving it the power to review the asbestos products that were no longer on the market before they could be sold again in the United States.

New York Court Allows Woman’s Asbestos Cancer Lawsuit Against Colgate-Palmolive to Proceed

June 30, 2019 | Throneberry Law Group

A New York Supreme Court recently handed down an important ruling allowing a female plaintiff’s asbestos cancer lawsuit against cosmetics and pharmaceutical company Colgate-Palmolive to continue. The ruling comes after the court made a legal determination that it did in fact have jurisdiction in the case, potentially paving the way for other similar lawsuits in the state to be heard.

According to the lawsuit, filed in New York Supreme Court for New York County, the victim used talc-based products like Cashmere Bouquet manufactured and sold by Colgate-Palmolive on almost a daily basis in New York from 1979 through 1985. The lawsuit claims the plaintiff sometimes used the products more than once a day, even using so much talcum powder that the room she was in would become dusty, forcing her to sneeze.

The plaintiff claims that the Colgate-Palmolive talcum powder products she used were contaminated is carcinogenic asbestos and that she developed a serious form of lung cancer as a result of the asbestos exposure. The asbestos cancer lawsuit goes on to claim that despite knowing fully well about the potential dangers its talc-based products could pose to innocent consumers, the company decided against placing any warning labels alluding to the risks, including developing mesothelioma.

Pennsylvania State Supreme Court Hears Arguments on Damages Apportionment in Asbestos Cancer Lawsuits

June 29, 2019 | Throneberry Law Group

The Pennsylvania State Supreme Court recently heard arguments over how juries may apportion financial liability in asbestos cancer lawsuits as it relates to a state law passed in 2011 meant to provide clear guidance to courts in such matters. Despite the Pennsylvania Fair Share Act’s passage nearly a decade ago, Pennsylvania courts have inconsistently applied the laws as they relate to matters of strict liability, leaving it to the state’s highest court to sort out the appropriate application.

Under the Pennsylvania Fair Share Act, in matters of strict liability with multiple defendants (such as an asbestos cancer lawsuit) where juries find in favor of the plaintiff there must also be an apportionment of the liability to each negligent party, known as pro rata. Essentially, the law requires juries to prescribe a dollar amount each defendant owes separately to the plaintiff and other defendants are not responsible for the other’s apportionment of the judgement.

However, several of the state’s lower courts have inconsistently applied the 2011 version of the law as it pertains to mesothelioma cancer lawsuits, instead choosing to follow language from an earlier version of the same law. Under some courts’ interpretations, financial liability has been applied on a per capita basis, meaning each defendant pays an equal share of the damages awarded by the jury.

New York City Jury Hands Down Substantial $300 Million Punitive Damages Award in Asbestos Talcum Powder Lawsuit

June 16, 2019 | Throneberry Law Group

A New York City jury recently returned a substantial award in an asbestos talcum powder lawsuit brought by a woman who claims her rare and deadly form of cancer was caused by exposure to asbestos fibers in the talc-based products she used for decades. The lawsuit named pharmaceutical and cosmetics giant Johnson & Johnson as the defendant and alleged that the company knew for decades about the presence of carcinogens in its talcum powder products but provided no warning.

According to the mesothelioma cancer lawsuit, filed in New York City Supreme Court, the now 66-year-old plaintiff developed cancer from using talc-based products produced by Johnson & Johnson. Jurors hearing the case had already found in favor of the plaintiff, awarding the victim and her husband $25 million in compensatory damages for the couple’s economic damages as well as their pain and suffering from the wife’s mesothelioma cancer diagnosis.

This latest award included $300 million in punitive damages, a special type of compensation juries may sometimes be allowed to hand down in situations in which plaintiffs can demonstrate that the defendants were egregiously negligent in their conduct. Punitive damages are meant as a means to send a message and deter other similarly negligent conduct and protect the public.

Illinois Governor Signs Law Allowing Mesothelioma Cancer Victims to Seek Justice for Injuries

May 28, 2019 | Throneberry Law Group

Illinois Governor J.B. Pritzker recently signed into law a piece of legislation that would give workers who were exposed to deadly asbestos fibers the legal right to file civil lawsuits in court even after the workers’ compensation periods to file claims has expired. Until now, workers in Illinois had 25 years from the period of exposure to file claims for latent injuries with their employer’s workers’ compensation carrier, but the new law will give victims whose diseases do not present symptoms until after that period the chance to seek damages.

The legislation, originally introduced in the state senate under SB 1596, passed the General Assembly in a relatively short amount of time and went to the governor’s desk to be signed into law. The bill’s sponsor, Rep. Jay Hoffman, said the bill would allow workers diagnosed with mesothelioma, a rare and deadly form of lung cancer often caused by exposure to asbestos, a way to be compensated if symptoms do not present themselves until after the statute of limitations to file claims has expired.

However, despite the good intentions of the law to help the worker, pro-business and insurance lobbies will likely challenge the legislation claiming companies would be in a state of perpetual liability since workers now have the right to bring injury claims in civil court. Traditionally, injured workers must bring their claims through their employer’s workers’ compensation insurance carrier or their state’s administrative system for dealing with denied claims.