Asbestos & Mesothelioma Law Blog

Individuals who worked in the railroad industry are very likely to have been exposed to materials that contained asbestos. Exposure to asbestos-containing materials increases the risk of long-term health issues. Under the Federal Employers’ Liability Act (FELA), railroad workers are afforded a special way of potentially recovering for health conditions that develop as a result of exposure to asbestos. Today, numerous railroad companies have been involved in litigation brought under FELA.

Danger to Railroad Workers

The use of asbestos was widely abandoned in the 1970s when the dangers of exposure to it were recognized by the federal government. Due to the size of the railroad industry during the twentieth century, there are many people who were exposed to asbestos. Further, because of the specific properties of asbestos, it was widely used for railroad materials, including, but not limited to, the following:

1. Insulation, including materials in locomotives, such as boilers, the outside of the engine, under the body of the train, and in boxcars;
2. Equipment, such as cement ties, plaster, and sealing materials; and
3. Locomotive parts, such as brake pads, the transmission clutch, and tiles in passenger cars.

Workers possibly affected by exposure to asbestos include those who worked on or constructed railroads, such as by laying track, as well as those individuals who constructed locomotives, rail cars, or parts used in the industry.

After the federal government officially recognized in the 1970s that exposure to asbestos fibers increased the risk of long-term health risks, the use of asbestos in products was largely discontinued. However, much of the asbestos already used was not removed, meaning buildings around the country still contain materials that have asbestos in them today. The Asbestos Hazard Emergency Response Act (AHERA) provides special regulations for how asbestos is treated when it is located within schools.

AHERA and Asbestos in Schools

Under AHERA, school districts and non-profit schools, such as charter or religious schools, are required to:

1. Inspect their schools for asbestos-containing building material; and
2. Prepare management plans and to take action to prevent or reduce asbestos hazards.

Though the use of asbestos was largely discontinued in the 1970s, there are many buildings that still contain the product. For the most part, asbestos poses little or no threat so long as it is not disturbed. As a result, asbestos was simply left in buildings in order to avoid the expense and difficulty of removing it. However, when repairs or reconstruction are required, materials containing asbestos may be disturbed. Because of this, there are numerous laws regulating the process of removal, known as asbestos abatement. Here, we focus on regulations under the National Emission Standards for Hazardous Air Pollutants (NESHAP) or asbestos abatement under NESHAP.

General Information about Abatement

Under ordinary circumstances, asbestos in buildings does not pose a significant threat. The danger emerges when asbestos is disturbed or moved, which releases microscopic fibers into the air. This can occur when work is undertaken on a building, which will necessitate the safe removal of the products or materials containing asbestos. Additionally, opening walls or doing other work on a building that makes asbestos accessible may provide a good opportunity to remove it, even though it is not affected by the work. The safe removal of asbestos is critically important, but can also be expensive, which caused some individuals to not remove it in a safe manner. As a result, the need for laws standardizing conduct related to asbestos abatement became apparent. Both state and federal laws regulate asbestos abatement. The types of regulations include, but are not limited to, the following:

1. How asbestos is handled and disposed of;
2. The training and licensing of authorized asbestos contractors; and
3. Accreditation of laboratories to test air samples after removal.

Asbestos Abatement under NESHAP

The Environmental Protection Agency (EPA) developed NESHAP in order to protect the public from exposure to airborne contaminants that pose hazards to people’s health. Under NESHAP, prior to any demolition or renovation, a thorough inspection of the affected building or part of the building where the demolition or renovation will occur must be completed to search for the presence of regulated asbestos-containing material (RACM). Further, the owner of the building must give written notice to the EPA stating the intention to demolish or renovate. NESHAP requires that all RACM must be removed before any activity beings that may break up, dislodge, or similarly disturb the material or preclude access to the material for subsequent removal. If there is material with RACM on it that is being removed as a unit or in sections, the RACM exposed during the cutting or disjoining must be wetted. This is to help keep it from escaping into the air. Further, during the removal of such material, it must be carefully lowered to the floor or ground level, as opposed to being dropped, thrown, or slid on the ground.

Individuals who have been diagnosed with mesothelioma as a result of exposure to asbestos fibers may choose to file a lawsuit against those responsible for the exposure. These lawsuits can be critical in helping an individual recover resources that will help them pay for medical treatment. One way in which the amount of damages may be determined is by valuing the victim’s pain and suffering.

What is Pain and Suffering in Mesothelioma Cases?

An individual may experience physical and mental pain and suffering as the result of developing mesothelioma. Physical pain and suffering includes a person’s actual physical injuries. This involves the pain and discomfort that the person’s condition imposes on them. In mesothelioma claims, this may include pain in the chest, abdomen, or pain during coughing. Additionally, there is pain and discomfort as a result of treatment the individual receives.

The workers’ compensation system was developed with the purpose of compensating laborers who were injured in the workplace. For victims of mesothelioma and other asbestos-related diseases, workers’ compensation claims may be a method for recovery. However, there are limitations and issues to account for when considering whether to file a workers’ compensation for asbestos claims.

About Workers’ Compensation

Most states adopted laws in the 1920s putting in place workers’ compensation programs. Today, every state has a system, as well as a federal system for federal employees. Workers’ compensation eliminated the need for an injured worker to file lawsuit against his or her employer. Instead, the worker files a claim and may receive the following:

1. Medical care, such as the costs related to hospital visits, surgery, or medication;
2. Disability income; or
3. Help finding another job.

Generally speaking, an injured worker is not allowed to file a lawsuit against an employer for injuries sustained in the workplace. This is because workers’ compensation does not require the worker to prove fault for his or her injury. In exchange for not having to prove fault, employers are usually shielded from lawsuits. However, there are exceptions, such as if the employer intentionally injured the worker.

Mesothelioma is a devastating disease, often not manifesting itself for many years following exposure to asbestos fibers. A particularly aggressive treatment for mesothelioma treatment extrapleural pneumonectomy (known as EPP). The surgery is quite complicated and serious, but, if successful, can offer significant benefits.

What does the Surgery Involve?

EPP involves the removal of as much of the cancerous material as possible, which includes a lung, as well as the lining around it, lymph nodes, diaphragm, and the heart lining. The surgery requires that the patient be placed under general anesthesia. Because one lung is removed, tests must be conducted prior to surgery to ensure that the remaining lung will be strong enough to take over all lung function. Additionally, it must be determined that the cancer has not spread to other parts of the body.

The surgery is only viable if the mesothelioma is diagnosed in its early stages, before it can spread to the lymph nodes or other organs. As a result, EPP is often not a treatment option because mesothelioma is usually not diagnosed until stage III or IV. “Staging” is a method of describing the severity or extent of the cancer, with a range between stage 0 and stage IV. At stage IV, the cancer has spread to other tissues or organs far in distance from the area it first developed.

In mesothelioma lawsuits, the burden of proof is on the victim (known as the plaintiff). Simply being diagnosed with mesothelioma is not enough to make a successful claim. The Throneberry Law Firm has extensive experience in helping victims of mesothelioma obtain the compensation they need in order to fight this terrible disease.

Mesothelioma and Product Liability – Asbestos in Products

The use of asbestos in products was widespread for a majority of the 1900s. It is not uncommon for people to come across asbestos today, particularly when renovating homes or other buildings. The theory of product liability makes manufacturers responsible for certain injuries caused by the products they make. For example, a defective product that injures people who use it in the manner in which it was designed to be used may give rise to a product liability claim.

As part of his or her employment, a person may have used many different component products in the creation of a new product. The manufacturers of those products that contained asbestos may be liable to people who developed mesothelioma due to exposure to asbestos fibers.

The use of asbestos in products ended several decades ago, but it is still very possible that you may come across it, particularly in older homes or buildings. So the dangers of asbestos today still exist. It is very likely, for example, that any house built before the 1980s still contains some products with asbestos in them. Therefore, if you plan on completing work on your home, you should be aware of what to do in the event you come across asbestos.

Some Background on Asbestos

Asbestos was widely used in a significant number of products until the 1970s when it was publicly recognized that exposure to asbestos fibers was dangerous. While most products manufactured today do not contain asbestos, it still may be found in many places. Some of the products that asbestos was used in include, but are not limited to:

1. Steam pipes, boilers, and furnace ducts;
2. Soundproofing material that was sprayed on walls and ceilings;
3. Patching and joint compounds for walls and ceilings;
4. Resilient floor tiles, backing on vinyl sheet flooring, and adhesives used for installing floor tile;
5. Brake pads, clutches, mufflers and gaskets in older vehicles; and
6. Significant amounts of insulation material.

For victims of mesothelioma, obtaining compensation to help pay for medical treatment is a major concern. Fortunately, there are several ways in which compensation can be obtained. The Throneberry Law Firm has extensive experience in obtaining compensation for victims through each of the following means.

Meosthelioma Compensation – Bankruptcy Trust Funds

Many victims of mesothelioma developed the disease as a result of exposure to asbestos, often in relation to employment. Companies that used asbestos can be held liable through lawsuits. However, it is possible that these companies filed for bankruptcy, which provides them protection from being sued. But, in exchange for this protection, companies entering bankruptcy are required to set up trust funds that compensate victims who make successful claims.

There are many factors that contribute to how much compensation a victim will receive from a trust fund, such as the severity of the condition and the age of the victim. Approved claims are liquidated, which means they are assigned a monetary amount. The actual compensation received is usually a percentage of the liquidated amount. This is to help ensure that there will be enough funds in the trust to make all payments to future claimants.

The majority of mesothelioma cases never make it to a trial. Instead, it is often beneficial for both sides to agree to a settlement. A defendant may wish to settle to avoid the possibility of having to pay a large award if the case goes to trial. An injured person may find settlement advantageous because it allows faster recovery of compensation and avoids the potential of an unsuccessful lawsuit. The Throneberry Law Group has successfully negotiated for millions of dollars in settlements for the victims of mesothelioma.

How are Mesothelioma Settlements Obtained?

The first step towards obtaining a settlement is contacting an attorney with experience in mesothelioma claims. Your attorney will begin collecting materials to prepare for the filing of a lawsuit against the parties responsible for exposing you to asbestos. At this point, and any time after this, a settlement may be agreed to.