Former railroad worker files asbestos lawsuit

CHARLESTON - A former railroad worker and his wife have filed a lawsuit claiming he was exposed to asbestos during his nearly 40 years on the job.Thomas Jackson Black and Patricia A. Black filed the suit Jan. 12 in Kanawha Circuit Court. In the suit, filed by Charleston attorney James A. McKowen of James F. Humphreys & Associates, Black says he worked for the Chesapeake and Ohio Railway Company, which later became part of CSX Transportation Inc., from 1951 to 1960 and from 1967 to 1995.On that job, he claims, he was exposed to asbestos dust and fibers in the course of his duties as a laborer and crane operator. This exposure, he says, cause him to suffer severe and permanent injuries, including mesothelioma.Seven defendants are listed in the eight-count suit. The defendants are CSX Transportation Inc., Certainteed Corporation, Metropolitan Life Insurance Company, Owens-Illinois; Rapid American Corporation; Union Carbide and Vimasco Corporation.Black says C&O and later CSX didn't provide a safe place to work, didn't provide proper safety equipment, didn't warn its employees of the dangers of asbestos and didn't tell them how to safely use or remove asbestos. He says the other companies provided asbestos and asbestos-containing materials that he encountered on the job and didn't explain the dangers of asbestos and sold products that were not fit for use.He also sues Metropolitan Life for conspiracy, citing the 1934 study backed by Met Life and Johns-Manville Corp. in which Dr. Anthony Lanza of Met Life didn't say asbestos exposure could be fatal. Black seeks joint and several compensatory and punitive damages to be determined by the court as well as other relief.He requests a jury trial.Also listed as plaintiff's attorneys are John Guerry III and William E. Applegate IV of Motley Rice LLC, a South Carolina-based practice. Its Web site says it is of the nation's largest plaintiff litigation firms and that it first gained widespread national recognition for its success in representing persons injured by the asbestos industry.The case has been assigned to a visiting judge.

'Affordable' USG asbestos plan

USG Corp. announced a unique asbestos-liability settlement Monday that could let the Chicago-based wallboard manufacturer emerge from bankruptcy by fall, repay its debtors in full, and resolve all current and future personal-injury asbestos claims against it.
The plan includes $1.8 billion in backing for the plan from value-fund guru Warren Buffett and his company, Berkshire Hathaway, which owns 15 percent of USG's stock.
"This is a very important day in our 103-year history," said USG CEO William C. Foote, calling the proposal a "watershed," "a win for all constituencies" and "fair, fast, final and affordable."
USG and its three major operating subsidiaries filed for bankruptcy protection June 25, 2001, to put an end to growing costs of fighting lawsuits filed by people who claimed to have been sickened by exposure to asbestos in USG's plasters and joint compounds.
In the settlement plan, USG would set up its own trust fund to pay people sickened by asbestos exposure and those making future claims.
The fund would cost USG as little as $900 million or as much as $3.95 billion, depending on whether Congress creates a national trust fund to handle all such asbestos-exposure cases.
What propelled USG to settle now? Foote told the Sun-Times that three factors played a part:
*Most importantly, the company's financial health -- it posted record 2005 sales Monday -- will enable USG to emerge from bankruptcy in sound financial shape, and with no more debt than it had when it filed for bankruptcy.
*A judge approved on Jan. 17 a similar asbestos settlement for Babcock & Wilcox, which once used asbestos to insulate boilers, establishing a model for USG's plan.
*Finally, Bankruptcy Court Judge Joy Flowers Conti ruled last summer that USG lawyers could randomly survey the people who had claimed they had suffered asbestos exposure, seeking details on when, how and under what circumstances they'd been exposed to USG's products. The possibility that fraudulent claims could be exposed made claimants' lawyers more willing to accept USG's offer rather than pursue litigation.
"We reached a cataclysmic moment," Foote said.
The USG settlement plan, which requires approval of federal and bankruptcy court judges, is crafted so shareholders keep their ownership of USG, and gives USG the advantages of tax breaks, support from Berkshire Hathaway and new, but possibly investment-grade, long-term debt.
Key provisions include:
*USG would create its own trust fund to pay people who claim to have become sick from asbestos exposure to USG's products. The set-up would let USG substitute its own trust-fund payment for 27 years of payments into a national asbestos trust fund. The USG trust fund would cover people who claim to have been exposed to asbestos at USG, its subsidiaries and at A.P. Green Refractories Co., a former subsidiary of U.S. Gypsum Co. that made and sold cement and blocks.
USG has maintained that it would pay the claims of people who truly suffer from asbestos exposure, but said it never mined or made asbestos, and stopped selling it nearly 30 years ago. USG had 150,000 asbestos-related claims pending when it filed for bankruptcy.
*USG would pay no more than $900 million into its asbestos-victims' trust fund if Congress passes a bill in the current session to create the $140 billion national fund to compensate asbestos-exposure victims. The president must sign the bill before it becomes law. USG would fold its trust fund into the national fund.
Foote will be in Washington, D.C., this week to lobby for the bill's passage. The Senate is scheduled to start debating the issue on Feb. 6.
*If Congress fails to create the national trust fund, USG would cough up $3.95 billion, including $1.6 billion in existing cash-on-hand; $1.8 billion from a new offering of equity to shareholders; up to $1.1 billion in tax refunds from paying into its own trust fund, and $1 billion in debt proceeds.
*To raise $1.8 billion to start the USG trust fund and to help pay creditors, USG will offer its shareholders an unusual deal, mostly seen in Europe. The deal offers shareholders one new share of USG stock for each share they already own for $40 a share -- well under USG's closing price on Friday of $79.85.
Berkshire Hathaway has agreed to put into escrow $1.8 billion to guarantee that all shares will be redeemed, even if that means Berkshire Hathaway ends up owning a bigger share of USG than it does now. If shareholders exercise their rights, their stakes in USG will remain undiluted.
The agreement has won the support of committees that represent people who have been sickened by asbestos exposure, future asbestos claimants, unsecured creditors and equity security holders.
The only holdout is the committee that represents people who claim property damage from asbestos exposure, and USG is in talks with them.
Jeff Cooper, an attorney in Downstate East Alton, who represents up to 500 people in the USG case who claim they suffer from a deadly lung cancer called mesothelioma because of asbestos exposure, said he believes the settlement plan is fair.
"I commend USG for coming to the right resolution," said Cooper, managing partner at Simmons Cooper law firm.
Cooper and other representatives for the asbestos sufferers criticized the proposed national trust fund. Public Citizen, a watchdog group, called it "a backdoor attempt to erase billions of dollars in corporate liability for asbestos exposure."
USG took a pre-tax charge of $3.1 billion, and an after-tax charge of $1.9 billion, or $43.39 per share, in the fourth quarter to cover the asbestos settlement plan.
As a result, USG posed a net loss in 2005 of $1.4 billion.
Excluding the charges, USG's fourth-quarter net earnings nearly doubled, to $165 million, or $3.70, propelled by a strong housing and commercial construction market that offset rising energy costs.
Sales in the fourth quarter grew 14 percent from a year ago, to $1.3 billion, while full-year sales hit a record $5.1 billion.
USG officials hope to start funding the USG trust fund by July and start paying asbestos victims and creditors shortly after.

Companies move for judgment, dismissal

Doug Satterfield wants to keep fighting for his daughter, the late Amanda Satterfield, who died as a result of an asbestos-related disease.
Doug Satterfield appeared in Blount County Circuit Court Monday along with family and friends for a hearing in which ALCOA Inc. sought dismissal of her lawsuit against the company.
Doug Satterfield's exposure to asbestos dust as a company employee and, later, his daughter's exposure to it, resulted in her death, according to a suit filed by Amanda Satterfield two years ago.
He is acting as representative for the estate of his deceased daughter.
Referring to his daughter's illness and death, the 51-year-old Blount County father said, ``It's still pretty fresh. It's tough watching your daughter die of disease caused by asbestos.''
She was 25 years old.
But the law doesn't recognize a ``duty of care in `clothing exposure''' cases, attorneys for ALCOA argued in a motion filed Jan. 23, 2006.
Amanda Satterfield died Jan. 1, 2005, after a long battle with mesothelioma, a rare cancer related to asbestos exposure.
Amanda Satterfield filed a lawsuit against ALCOA Inc. and Breeding Insulation Co. Inc., of Nashville, on Dec. 8, 2003. In the suit, she alleged her father, Doug Satterfield, wasn't warned of the dangers of asbestos by ALCOA.
``Amanda Satterfield was exposed to harmful asbestos dust and fibers from the day of her birth from her father's use of asbestos products and inadvertent introduction of dust and fibers into their home and personal environments,'' she alleged in the 2003 suit, initially filed in Knox County Circuit Court.
Doug Satterfield said Monday that he hauled asbestos for ALCOA, starting his career with the company in 1973. He served in the military from 1975 to 1978 and returned to work at ALCOA. He said Monday he is still an employee of the plant, but is temporarily disabled. ALCOA, he said, doesn't want the case to go to trial.
``If they're right, why not let it go to court? Why are they afraid?'' he said. ``We're not afraid.''
ALCOA spokeswoman Melissa Copelan said the company filed the motion Monday and is awaiting the outcome.
Blount County Circuit Court Judge W. Dale Young heard the motion Monday but did not rule on the matter.
In the opening paragraphs of the motion for judgment, attorneys for ALCOA contend, ``Tennessee has never recognized a duty of care in `clothing exposure' premises cases. This is a case of first impression which is important to the proper development of Tennessee law. ..
``Legislatures, courts, and even grand juries across the nation are saying `no' to the expansion of litigation based on occupational exposures,'' attorneys at Knoxville firm Hunton and Williams LLP wrote.
The plaintiffs failed to show that Amanda Satterfield's ``injury was a reasonably foreseeable probability,'' and her premature birth in 1979 and her death were not ``reasonably foreseen'' by ALCOA, according to ALCOA's motion for judgment.
``Nor has plaintiff alleged facts which indicate that ALCOA could foresee that mesothelioma, a rare and debilitating illness, could strike a non-employee at such a young age who had never set foot on an ALCOA premises,'' according to the company's suit.
Amanda Satterfield's initial lawsuit sought $10 million in compensatory and $10 million in punitive damages.
This case isn't about money, said Doug Satterfield.
``How many people will have to go through what we went through?'' he said Monday. ``It's not about money. It's about what's right. It's about justice. She didn't choose to die from this.''

Asbestos relief bills clear Lower House

A package of bills aimed at providing financial support to people suffering from asbestos-linked diseases cleared the House of Representatives on Tuesday.
Approved at a Lower House plenary session, the bills include support for people who have lost family members to asbestos-related illness.
The bills are expected to clear the Diet with approval from the Upper House later this month.
They include strengthened measures to prevent similar problems in the future.
The government plans to start accepting applications for financial assistance in March. Under the package, the government will cover out-of-pocket medical expenses and rehabilitation costs for people suffering from asbestos-linked diseases, including mesothelioma -- a form of cancer -- and will provide funeral allowances for those who die from such diseases.

Drugs for cancer easy to get in B.C.

Access to cancer drugs varies dramatically by province, with British Columbia providing the quickest access to the most medications, according to a report card on the cancer system.
That contrasts with Ontario, where cumbersome review processes have made obtaining some of the newer cancer drugs a "nightmare," Kong Khoo, a Kelowna-based medical oncologist, told a packed news conference in Toronto yesterday.
"There's a huge amount of paperwork and difficulty accessing these drugs," Dr. Khoo said in releasing the Cancer Advocacy Coalition of Canada annual report card.
The coalition's review found that of the 24 cancer drugs studied, all of which represented key advances, B.C. covers the cost of providing 21 of them. In Ontario, only six such drugs had approved funding and Prince Edward Island was the lowest of any province with only four fully funded drugs.
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In Ontario, for example, Velcade does not have full, approved funding to treat a relapse of multiple myeloma, nor does Tarceva for non-small-cell lung cancer or Campath for relapsed chronic lymphocytic leukemia. Alimta, which is given with Cisplatin for mesothelioma, a rare form of cancer associated with asbestos exposure, also did not have full funding in Ontario as of late December, said Dr. Khoo, who is on the board of directors for the Cancer Advocacy Coalition of Canada, a non-profit group that receives unrestricted funding from a variety of pharmaceutical manufacturers.
Part of the problem, he said, is that not all provinces finance oral and intravenous cancer drugs through a centralized cancer agency in the way that B.C. does.
Some newer drugs are funded for the elderly but not the young, or through private insurance. Some drugs are available only through individual oncologists and hospitals. Some not at all.
As well, not all provinces are quick to fund cancer drugs, even when the scientific evidence is compelling.
For example, when a large, clinical trial in December, 2000, showed that Rituxin dramatically reduced the death rate for lymphoma in patients aged 60 to 80, B.C. approved and funded the drug three months later, in March, 2001, to its younger patients, as did New Brunswick.
By March, 2004, the death rate from lymphoma in B.C. had been reduced by half. Yet, it was only after lobbying from patient activists and an advocacy coalition, and media coverage that the drug was provided in Alberta and Ontario in the spring and summer of 2004, the report said.
The early introduction of Rituxin to lymphoma patients under 60 from March, 2001, to April, 2004, probably saved about 20 lives. However, during that same period, as many as 100 patients under 60 died of lymphoma in provinces where funding was delayed, the 47-page report said.
"The human tragedies accompanying these untimely deaths of relatively young people can only be imagined," said the report by the group, which comprises cancer specialists, health executives and patients' advocates. ". . . Had they been allowed to remain alive as productive and tax-paying citizens, they probably would have 'paid-off' the cost of their treatment in their ensuing working years."
Overall, the report said B.C. has the best funded and most timely access to cancer drugs and the best cancer outcomes and lowest mortality. Alberta provides only modest access to new cancer drugs. Although the report noted that Ontario has approved funding for only six drugs, it does provide limited access to 13 additional ones.
"It's come to a point where many of these drugs are new standards of care. If you don't give these things, you are medically liable, " Dr. Khoo said in an interview. He predicted that, in the future, "people will be dragging governments to court."
However, he did note that the cost of the newer cancer drugs is substantial, with 15 of them carrying a price tag of between $20,000 and $70,000 for a standard course of treatment, which ranged from 12 weeks to one year.
What all of this research shows, said Dr. William Hryniuk, chairman of the group's board of directors, is that Canada needs a catastrophic drug program.
Terrence Sullivan, president and chief executive officer of Cancer Care Ontario, said yesterday that the Drug Quality and Therapeutics Committee, which approves all cancer drugs in Ontario, is the most robust of its kind in the country.
He said the independent committee of leading medical oncologists, health economists and ethicists looks at the medical evidence on a drug's effectiveness and cost effectiveness, then recommends to the provincial government whether it should be funded.
"Nobody is telling those people what to say or what to think," Mr. Sullivan said. "They are working on good standards of evidence."
In an interview yesterday, Dr. Khoo said he is tracking the drugs province to province because he sees his fellow cancer specialists and patients struggling with the system.
"They can't say anything or they can and nobody listens," he said.

Many people are living with the seeds of the deadly killer Mesothelioma lurking inside there bodies.

It can take 10 to 15 years after exposure to asbestos and other cancer causing agents for the Mesothelioma to become active. Litigation regarding mesothiolma should surge in the years to come. Mesothelioma is a very serious disease.
Many people are living with the seeds of the deadly killer Mesothelioma lurking inside there bodies.It can take 10 to 15 years after exposure to asbestos and other cancer causing agents for the Mesothelioma to become active. Litigation regarding mesothiolma should surge in the years to come. Mesothelioma is a very serious disease.If you or your loved ones becomes a victim of this devastating disease what are you options? Where will you go for support? Where in the country are the best treatment centers for Mesothelioma. Who will aggressively protect your rights in court? What about the suffering that it causes? What about the years it takes off someone’s life?The first step is to determine if you or anyone in your family are potential victims of the deadly curse.Up to 9 out of 10 cases of mesothelioma are caused by exposure to asbestos. Asbestos is a natural mineral, mined from rock found in many countries. It is made up of tiny fibres that are as strong as steel but can be woven like cotton and are highly resistant to heat and chemicals. Absestos was used in construction, ship-building and the manufacture of household appliances.Talk to your family members, discuss you history of exposure to any of the above examples.Be prepared to battle this devious and cunning disease.Find a quality mesothelioma lawyer. This is where Mesothelioma laws come into play. Every state has very stringent laws regarding asbestos material.Individuals concerned about their risks of contracting Mesothelioma can use the Information pages ( http://www.mesothelioma-attorney-case.com/treatment.html ). In addition, mesothelioma-attorney-case.com outlines various treatment options available to those who have contracted the disease, plus how to locate support groups in the fight against Mesothelioma. www.mesothelioma-attorney-case.com is based in the United States. Visit.( http://www.mesothelioma-attorney-case.com/treatment.html ). to learn more.

Does Libby’s bark bite?

Usually, children are told not to climb trees for fear of broken limbs (the children’s and trees’). Children at schools in Libby are being told to stay away from the trees for fear of cancer.
That, for now, is the result of a Jan. 12 Community Advisory Group (CAG) meeting in Libby, during which Dr. Tony Ward, a research assistant professor at the University of Montana Center for Environmental Health Sciences, announced that bark samples taken from trees at the Libby Middle School turned up asbestos fibers, the culprit that caused mesothelioma in Libby residents.
Previous testing at areas closer to the sites of the W.R. Grace mines, whence the asbestos came, and along the transport corridor it traveled, showed that bark there was contaminated as well.
Ward told the community that it’s now unknown whether the fibers can be dislodged from the tree bark when disturbed, and it remains unknown whether there’s any safe threshold of exposure to asbestos fibers. In the meantime, Kirby Maki, superintendent of Libby schools and CAG member, is telling students at all Libby schools to stay away from the trees.
This isn’t the first time asbestos has been detected near Libby schools. In 2001, Libby’s high school and junior high school had to tear up their running tracks, which had been constructed of asbestos-containing vermiculite from the Grace mine.
But Maki, for one, personally believes Libby is safe, noting that he raised his family here and that he, his wife, and one of his children still live in the town.
“If I didn’t think it was safe for my family, I wouldn’t stay,” Maki says.
Maki says his willingness to stay in Libby, despite the fact that he’s told school children to avoid trees due to cancer concerns, is due in part to his confidence in Environmental Protection Agency efforts to ensure Libby’s safety.
“I feel good about their work,” he says. “We keep a close eye on them.”

Firm fined for asbestos risk

A factory where 200 people worked was yesterday branded a "Jekyll and Hyde operation" for endangering the lives of employees by ignoring pleas to remove potentially-lethal asbestos.Egg carton manufacturer Omni Pac UK, which was shut down in 2003, was ordered to pay £136,000 at Norwich Crown Court after it admitted breaching two counts of health and safety policy.It had earlier pleaded guilty to failing to protect the health of employees and failing to protect the health of non-employees – with its representative in court admitting managers had "taken their eye off the ball".The court heard that factory bosses ignored successive demands by maintenance workers to remove the killer substance – instead making employees stand on top of asbestos-laden machinery.They had to sweep asbestos dust off machinery, where lagging had split open revealing the material – which causes painful and incurable diseases such as mesothelioma, cancer of the lining of the chest.Workers were not instructed to take safety precautions such as wearing masks or gloves, and were never told that levels of exposed asbestos in the factory had reached dangerous levels.The court was shown pictures of the factory, showing rubble piled high, lagging on the 1950s-built plant crumbling badly and debris covering the floor. All contained dangerous levels of asbestos.Richard Matthews, prosecuting for the Health and Safety Executive (HSE), described how concerns were first raised by senior plant engineer Michael James in 1993."Mr James said that as early as 1993 he had expressed concern during plant safety committee meetings about the damage to asbestos-containing insulation that arose from employees standing on the tops of driers to remove dust and debris," he said."In August 1997 there was an explosion on a machine that Mr James believes focused his mind on asbestos.Mr Matthews went on to describe how a series of plant workers had provided evidence as to how they were made to work closely with the asbestos for a number of years without protection.Packer Anthony Eland would use wire brushes to scrape asbestos-laden lagging, and was never given any warning or told to take precautions when dealing with the material.Others described receiving express assurances that material within the plant was safe and posed no danger.The whistle was finally blown when asbestos surveyor Glen White, of Microtec Air, carried out sampling in the factory in October 2003, and described it as "the worst working factory he had ever seen in the British Isles".Mr Jacobs fined the company, owned by American-based multinational Pactiv, £25,000 for each breach and £86,000 costs, totalling £136,000, to be paid within 28 days.Outside court, Omni Pac spokesman Peter Jermy said he hoped the sentencing would provide some closure to former workers."We are very pleased the process is now over and we accept the sentence of the court," he said.But Ivan Crane, regional organiser of the Transport and General Workers Union, which represents many Omni Pac employees, said the fine was not enough."The fine has to be weighed against the possible long-term effects on those that were employed at the factory," he said.

Retrial ordered for asbestos miner

The High Court has ordered a retrial for a former asbestos miner, who is attempting to sue CSR and Midalco for allegedly giving him asbestosis and depression through negligence.
Arturo Della Maddalena, worked for CSR and Midalco at the asbestos mine and mill in Wittenoom in north-western Western Australia for a total of three and a half years from 1961 to 1966.
The 63-year-old alleged that during the course of his work he was exposed to asbestos causing him to suffer asbestosis, pleural disease, respiratory degeneration, pain and breathlessness, and psychiatric injury.
At the age of 18, Mr Della Maddalena had followed his older brother Walter from Italy to work at the mine at Wittenoom. Walter died of mesothelioma in 1988.
Two years later Mr Della Maddalena started experiencing shortness of breath, chest pain and tiredness and specialists found asbestos in his lungs.
In the lead-up to his WA District Court hearing, lawyers for the mining companies kept Mr Della Maddalena under surveillance and filmed him for 150 hours.
Eighty-two minutes of the footage was tendered during the hearing.
The tapes showed him doing activities which were allegedly inconsistent with breathlessness or chest pain.
Psychiatrists gave evidence during the hearing that he was suffering from a major depression associated with significant anxiety arising from concern about the effects of asbestos exposure.
His own two psychiatrists did not change their diagnosis after watching the tape.
But a psychiatrist retained by CSR and Midalco, Dr Salvatore Febbo, said he changed his mind after watching the tape as he believed Mr Della Maddalena's account of what he could physically do was unreliable.
WA District Court Judge Michael O'Sullivan agreed with Dr Febbo and dismissed Mr Della Maddalena's claim, saying the evidence did not show he was suffering any physical or psychiatric injury.
Mr Della Maddalena appealed to the full court of the WA Supreme Court which ruled he did suffer a psychiatric injury.
The companies appealed to the High Court which ordered, by a three to two majority, a retrial.
During the hearings it was revealed that nine of the 13 people who came to work at the asbestos mine at Wittenoom with Mr Maddalena from his village in Italy died from mesothelioma.
Mr Della Maddalena's lawyer, Tim Hammond, later said the High Court's decision did not represent a defeat for his client, who would continue his fight for justice.
"Mr Della Maddalena has had an extremely difficult time. He is now one of only a few of his countrymen who made the journey from Italy to work in Wittenoom and have not succumbed to the deadly dust," Mr Hammond said.
"He is determined to see this through."