The Fight Against Asbestos: Key Moments in History
The struggle for fair compensation in asbestos exposure cases is not a new one. Given the chance, most companies almost always put profits before people. The 1973 Pinto Memo is just one example. The Ford Pinto had a design defect that caused the gas tank to explode in almost any rear-end collision. Ford’s Environmental and Safety Engineering division determined that paying catastrophic injury and wrongful death lawsuit settlements was cheaper than fixing the Pinto and making it safe.
Around that same time, the fight against asbestos in the United States was just picking up steam. But it didn’t start in the 1970s and, contrary to popular myth, it didn’t end in the 1980s. It began much earlier, and who knows when it will end. Whatever happens, an asbestos exposure lawyer will be there to obtain maximum compensation for victims of asbestos exposure diseases, like mesothelioma. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.
Thousands of years of anecdotal and observational evidence linked asbestos, a fireproof mineral and key insulation ingredient, with serious illness. The first scientific illness link was published in 1899. This medical evidence set the stage for the next one hundred plus years of asbestos exposure litigation.
Movies and TV shows that feature lawyers usually focus on emotional courtroom showdowns. These shows usually don’t feature the vast amount of work that lawyers pour into asbestos exposure cases. Primarily, this work includes reviewing and evaluating medical evidence.
Many clients come to us after they receive a mesothelioma or other diagnosis from a family or general practice doctor. To obtain maximum compensation, an asbestos exposure lawyer usually works with a Board Certified environmental or occupational oncologist. A confirming diagnosis and prognosis from such a professional is very compelling in court.
As mentioned, anecdotal evidence of asbestos exposure deaths dates back thousands of years. The first scientifically recorded death occurred in England in 1924.
Nellie Kershaw was exposed to asbestos while working as a spinner at Turner Brothers Asbestos company, a factory that produced asbestos cloth.
Her death, due to pulmonary asbestosis, was the first such case to be described in medical literature, and the first published account of disease attributed to occupational asbestos exposure.
Kershaw’s employers accepted no liability for her injuries, paid no compensation to her bereaved family, and refused to contribute towards funeral expenses. She was buried in an unmarked pauper’s grave.
But she did not die completely in vain. The subsequent inquiries into her death led to the publication of the first Asbestos Industry Regulations in 1931.
Many other asbestos regulations followed. In the United States, these regulations began with the Clean Air Act, and its amendments, in the 1970s. Such regulations usually establish exposure levels and therefore make it easier for an asbestos exposure lawyer to establish negligence, or a lack of care, in these cases.
The first asbestos products lawsuit in the modern era was filed on December 10, 1966, in Beaumont, Texas, by attorney Ward Stephenson on behalf of Claude Tomplait. Mr. Tomplait had been diagnosed with asbestosis in July of that year. The defendants were a rogues’ gallery of eleven asbestos-containing insulation manufacturers, including:
Johns-Manville: As early as 1929, JM employees contracted disabling lung disease. The company forced these victims to sign gag orders as a condition of their disability payments. Today, the company is a division of Berkshire Hathaway.
Owens Corning Fiberglass: 1966 was just the beginning for this company. Over the next four decades, the company was named in hundreds of thousands of asbestos lawsuits. By 2000, it had settled with 440,000 people who claimed Owens Corning’s products caused them to develop asbestos-related illnesses such as mesothelioma.
Tomplait’s case proceeded to trial on May 12, 1969 and a week later the verdict was returned in favor of defendants. Undeterred, Stephenson filed a similar case on behalf of Clarence Borel.
The jury returned a verdict for Mr. Borel in the amount of $79,436.24. The verdict was appealed and on September 7, 1973, Ward Stephenson died. However, four days later, the Fifth Circuit Court upheld the award.
The Borel verdict opened the floodgates. Over the next few years, thousands of victims filed similar lawsuits. For two reasons, 1974’s Reba Rudkin lawsuit may be the most significant case of that era.
Her lawyer, Steven Kazan, sued Johns-Manville in a civil lawsuit. Normally, because Mr. Rudkin worked for Johns-Manville, the company would be protected from a lawsuit because workers’ compensation is the prescribed remedy for an employee suing an employer. However, Kazan Law argued that Manville and its executives should not be shielded from fraud and conspiracy charges.
Furthermore, during a January 1978 deposition, the Pittsburg plant manager in the 1960s, admitted there was “a policy in the company…not to talk to the employee about chest findings, findings that suggested asbestosis, pneumoconiosis or mesothelioma.” As more evidence of fraud and conspiracy emerged, damages skyrocketed.
Throughout the 1980s, huge asbestos settlements were everyday events. However, nothing lasts forever. In the mid 1990s, the controversial McDonald’s hot coffee case spawned a wave of tort reform measures throughout America. These laws lowered compensation and, in some cases, closed the courthouse doors for victims. At the same time, pro-business judges appointed by Reagan and George H.W. Bush twisted these laws, making things even harder for asbestos exposure lawyers.
The bottom fell out, or rather began falling out, in 2012. CSX Transportation Inc. sued a group of asbestos exposure lawyers, alleging that they, and a doctor who represented plaintiffs in asbestos cases, had engaged in acts of civil racketeering in their pursuit of fraudulent claims. That verdict was upheld on appeal.
We mentioned the importance of laying the groundwork above. This process is often long and frustrating. However, it’s critical to do all the work the right way and not take shortcuts. Only then do victims receive the compensation and justice they deserve.
For many reasons, 2024 was definitely the best of times and the worst of times for asbestos exposure lawyers and their clients.
In March, the EPA announced a total asbestos ban. This ban sets the bar very high, and as the old saying goes, the bigger they are, the harder they fall. Several years before the EPA published the ban, COngress closed the loophole that torpedoed a 1989 ban. So, there’s a good chance the 2024 ban will hold up in court.
Now for the worst of times. In May, plastic pipe maker J.M. Eagle filed the largest RICO case yet. It sued a U.S. law firm that filed hundreds of asbestos personal injury cases against it, marking the latest counter-strike by a defendant against the asbestos plaintiffs bar. If successful, the lawsuit could affect billions of dollars of compensation paid to victims and survivors over the years.
Even Master Yoda doesn’t know what the future holds. But based on prior asbestos exposure litigation, as well as the changing nature of asbestos exposure, we can make a few predictions.
Most asbestos exposure cases have been occupational exposure. However, between 9/11 litigation and asbestos/talc litigation, the future will probably be environmental exposure. On September 11, a toxic cloud laced with asbestos drifted over much of the Northeast. Most of that asbestos came from the ruins of the World Trade Center. Asbestos-talc health issues are expanding as well, with the recall of tainted makeup and, most recently, tainted baby formula.
Asbestos exposure lawyers face a reckoning as well. We routinely lampoon asbestos companies for failing to stand up and do the right thing. We must stand up and do the right thing as well, and ensure that victims get maximum compensation as well as fair compensation.