PA Court Upholds "Any Exposure" Theory Despite Earlier Ruling

But when medical, scientific and legal opinions intersect, it can make for a contentious battle. Nowhere is that more evident than in mesothelioma cases.

In 2011, a Pennsylvania judge awarded the estate of a deceased mesothelioma plaintiff a $950,000 sum from an electric company for its negligent exposure of the vicitm to asbestos fibers through its welding rods.

The electric company, however, appealed that decision. Our Boston mesothelioma lawyers have since learned that the appellate court affirmed the earlier ruling, refusing the company's challenge to the "any exposure" theory, despite an earlier ruling by that state's supreme court, which found that the theory is not sufficient to establish causation.

The case, Wolfinger v. Lincoln Electric Company, provides some hope that judges and justices will continue to hand down common sense decisions, even in states where patients' rights have been actively restricted.

If you aren't familiar, the "any exposure" theory basically holds that each and every exposure to every kind of asbestos in a workplace setting may constitute causation for the disease.

Many courts reject this, and plaintiffs are often required to show evidence of repeated exposure - despite the fact that doctors and researchers agree no type or amount of asbestos exposure is safe.

In 2005 in Pennsylvania, plaintiffs in Betz v. Pneuma Abex attempted to assert that any exposure to asbestos, even casual, was basis enough to assert causation of mesothelioma or asbestos-related illnesses. This was the argument used, even though the plaintiff in that case had in fact suffered repeated exposure to the fibers in brake linings through his decades of work as an auto mechanic. The court, however, rejected that "any exposure" theory, and that precedent has been upheld in that state ever since.

Then came the Wolfinger case. Lincoln Electric appealed the initial verdict on several grounds, including that:

1. The court had erroneously allowed expert testimony indicating that "any exposure" to the defendant's asbestos-laden products was causation, in violation of Betz
2. The trial court erred in allowing the plaintiff's doctor to testify as to the root cause of his illness.

The court, however, rejected those arguments on the basis that despite the doctor's testimony - specifically with regard to the "any exposure" theory, it was not the only evidence offered by the plaintiff as to causation.

In other words, the plaintiff's attorneys didn't leave it up to this one witness to find a casual link. As such, the earlier verdict was upheld.

Once again, it is critical for the plaintiff attorney to thoroughly research every aspect of a claim before moving forward. Choosing an attorney who is committed to that level of dedication will be critical to the success of your case.

First Responders' Asbestos Exposure Very Real Concern

First responders rushed to the aid of trapped and injured shoppers in downtown Philadelphia last month, after a botched demolition project, without a second thought to their own safety.

Now, however, our Boston mesothelioma lawyers understand that in those hours spent digging, climbing, pulling and lifting, brave men and women were exposed to asbestos fibers, lingering in the air after the collapse.

The confirmation that asbestos was found at the site raised three very important issues:

• The risk taken on by first responders every day;
• The fact that these men and women weren't given protective respiratory gear before they were dispatched to this scene;
• The revelation that a licensed asbestos inspector had deemed the structure asbestos-free just days before the incident.

Let's start with the general risk to first responders. We tend to think of asbestos exposure as being something that is primarily an issue for industrial workers - those in fields of construction, mechanics, shipping, electrical engineering, etc. And it's true that all of those are high-risk occupations in terms of asbestos exposure. However, firefighters are often at risk just by virtue of the fact that their headquarters often contain asbestos. During downtime, firefighters often will do improvement projects here and there around the station, heightening their risk of exposure.
Additionally, given the pervasiveness of asbestos in many 20th century buildings and the fact that the substance is especially deadly when disturbed, consider who we send to these structures when they are on fire or collapsing. Even those who might not have been on a call to an asbestos-laden structure might be exposed to it from the unwashed gear hanging up from those who were on the scene.

Which brings us to the last point, which is the reported failure of this asbestos inspector to correctly identify whether the fibers were present in this structure. This inspector, certified by the city, two weeks prior to the collapse submitted an inspection report indicating that no asbestos was found at the site. Six people were killed when demolition crews improperly took down a wall of the structure. Subsequently, crews were brought in to remove the debris. Those crews have since confirmed that asbestos did in fact have to be removed from the site, proving it was present after all.

So far, the mayor's office has refused to answer questions about how a city inspector could have been so wrong. No doubt, this is not an issue the people of Philadelphia will be willing to drop anytime soon.

Mesothelioma Lawyers Note Chemical Safety Bill Gains Traction

Our Boston mesothelioma attorneys are encouraged by the progress of this action, which was slowed significantly back in 1991 when the Environmental Protection Agency's effort to enact additional protections against asbestos exposure were curtailed by a federal appeals court ruling.

If the 1976 Toxic Substance Control Act can be strengthened, as advocates hope, we believe it may be possible for additional efforts to outlaw asbestos in the U.S. to be renewed. This could ultimately curb future instances of mesothelioma, which is caused by exposure to the fibers when they become airborne.

As it stands right now, the TSCA is essentially toothless, though it pledges regulation of potentially harmful chemicals in both consumer and industrial goods - everything from children's pajamas to plastic bottles.

However, the act has been a disappointing failure. The New York Times reports that of the approximately 85,000 chemicals that are registered for approved use in the U.S., only about 200 have actually been tested by the EPA. Of those, less than a dozen have been restricted.

When the EPA lost its appeal to try to regulate asbestos, the agency also gave up any efforts to initiate further action on the TSCA.

Renewed efforts began in 2005. However, they have thus far been unsuccessful in enacting change because politicians have been effectively swayed by the American Chemistry Council, which represents deep-pocketed firms such as Procter & Gamble and Exxon Mobil.

Still, some say it doesn't go far enough. There aren't enforceable deadlines, for example, and representatives of the Environmental Defense Fund complained that the EPA was lacking in authority to protect low-income communities or infants and children exposed to high amounts of toxic chemicals.

Asbestos is a highly toxic mineral that is heavily regulated, but it's still legal for companies to buy, sell and use in the U.S. Most other industrialized nations have banned the substance, but the political lobby for asbestos products remains active. The EPA had attempted to ban the substance back in 1989, but it lost in federal court appeal two years later.

At the time of that ruling, the U.S. Court of Appeals had criticized the EPA for failing to identify all substitute products that could replace asbestos and evaluating their toxicity as well, which would help in justifying the ban.

Asbestos Exposure Negligence Shows Why Mesothelioma Cases Won't Dwindle Anytime Soon

Our Boston mesothelioma lawyers were appalled when we learned the details of this case, which involves a company so sick with greed that not only would it place its own workers in danger, it would endanger the lives of children.

It started back in September of 2005 and stretched through the spring of 2006. The three defendants in question were former executives at a non-profit program that was created by those involved with an area high school to teach trade skills to at-risk youth. One of those non-profit leaders was a math teacher.

Each of the defendants held key positions with the organization, which was tapped to do a renovation project at a nearby automotive training center.

Part of that renovation, the executives learned, would involve the removal of some 1,000 linear feet of pipe insulation and more insulation in a separate tank. That insulation, the defendants were informed, contained asbestos.

This is not uncommon in structures erected prior to the mid-1970s, when asbestos was used in almost everything from insulation to tile to caulking to electrical paneling.

But in this case, the defendants - who knew asbestos was present - did not hire an outside firm to conduct this portion of the renovation. Instead, investigators say, they cut corners by using at least nine high school vocational students to do it.

These students were in direct contact with the asbestos, breathing in the fibers directly because none of them were given the proper respiratory equipment to protect them from inhaling the material. This was a project that went on for months. And the defendants allowed it to go on, unthinkably putting each and every one of these youth at risk for developing terminal cancer later in life.

As one state attorney was quoted as saying, the defendants did not deem these students worthy of protection because they were "at-risk."

For these actions, the defendants pleaded either guilty or no contest to a number of state and federal felony criminal charges against them, including violation of environmental laws, illegal diversion of construction funds, failure to pay payroll taxes, worker's compensation violations and the unreasonable risk of injury to those nine students.

They will serve a total of about 2 years in prison.

It's true that asbestos is no longer widely used in new products that are manufactured today, and that production has tapered off significantly in the last several decades. However, negligent asbestos exposure cases like this show us why, sadly, we will continue to see mesothelioma litigation for many years to come.

Taconite: Another Cause of Mesothelioma?

Our Boston mesothelioma lawyers know it has long been believed that asbestos exposure was the only known cause of mesothelioma.

However, so far the only people believed to have contracted mesothelioma in connection with taconite exposure are men who worked in the taconite industry.

Taconite is a low-grade iron ore that is mainly comprised of chert. In its natural element, it is primarily found near Lake Superior.

A connection between taconite mining work and mesothelioma was first realized back in the late 1990s. As such, the Minnesota Legislator commissioned the $4.9 million study back in 2008, noting the state's cancer registry revealed that there were a huge spike in mesothelioma cases among Minnesota Iron Range workers.

Back in 2003, the University of Minnesota conducted a study of taconite miners, and discovered that at least 14 to 17 cases of mesothelioma among those individuals were most likely caused by asbestos exposure. However, since that time, another 35 cases of mesothelioma have been diagnosed among taconite miners, and that was what prompted this study.

The results show that for every year a taconite laborer worked in the mine, his risk of mesothelioma inched up by 3 percent. But these workers might also have been exposed to a fair amount of asbestos in this work as well.

"Researchers can not say with assuredness that dust from taconite operations causes mesothelioma," a local report indicated. Ongoing research will be necessary, they said, to determine what role asbestos played in the cases analyzed.

Researchers further pointed out that the taconite industry may be safer today than it was years ago. Occupational exposure to various forms of dust are considered to be within safe limits, and spouse-related contraction of dust-related lung ailments were no higher for taconite workers than they were for the population at large. That is a major difference from what we see in the asbestos industry, where spouses of workers exposed to asbestos have much higher rates of mesothelioma than the general population.