The turning point in the fight for workers rights was Dr Irving Selikoff's study of asbestos workers, published in 1964. Following the health histories of 1117 members of the International Association of Heat and Frost Insulators and Asbestos Workers, he showed a clear dose-response relationship between exposure and serious diseases, such as mesothelioma, lung cancer, and asbestosis. The more years a worker had been exposed in the workplace, the greater the probability that the worker would develop cancer. Selikoff found that more than half the workers showed evidence of asbestosis, and he documented a death rate among this population 25% higher than statistically expectable.
Armed with this damning information, plaintiff's lawyers representing workers with lung cancer and mesothelioma began to file product liability lawsuits against the manufacturers. The asbestos companies and their lawyers met them with evasions, misrepresentations, and outright lies. Two years after Dr Selikoff had published his findings a senior executive of Raybestos-Manhattan complained to the press that "We feel that the recent unfavorable publicity over the use of asbestos fibers in many different kinds of industries has been a gross exaggeration of the problems. There is no data available to either prove or disprove the dangers of working closely with asbestos."
Juries saw things differently. As evidence mounted that companies had known of the hazards and had failed to warn and protect their workers, plaintiff's attorneys won in court and delivered long-delayed justice and financial compensation to workers facing fatal cancers.
In 1971 OSHA, the Occupational Safety and Health Administration, took a major step toward worker protection when it published a set of exposure standards for asbestos in the workplace. The EPA, the Environmental Protection Agency, was also watching, and in 1973, it determined that spray-on insulation containing asbestos violated air quality standards, and it banned the use of it altogether. Six years later the EPA decided that asbestos was so hazardous to human health that all use of it should be prohibited. The regulation was published in 1989. Companies filed suit, and two years later they prevailed in court.
The fight for justice for terminally ill workers got another assist in 1977 when plaintiff's lawyers found the Simpson papers. Sumner Simpson was president of Raybestos-Manhattan during the 1930's and 40's, when companies continued to insist that they knew of no dangers from asbestos. Simpson's letters to the company lawyers and other companies' officers showed that he and they had full knowledge of the dangers, and the life-threatening implications for their workers. The letters reveal decisions to withhold critical information and to mislead employees about the causes of their illness. Simpson and his peers chose their companies' profits over the lives of their workers.
The Simpson papers were the smoking gun the lawyers needed. When their leaders' own words revealed what the industry knew, the companies' defense crumbled. In a Florida case, brought by an Owens Corning worker with terminal cancer, the Florida Supreme Court determined that the employer had intentionally withheld information from the worker about the danger he faced working asbestos: "It would be difficult to envision a more egregious set of circumstances," the justices wrote. It represented "... a blatant disregard for human safety involving large numbers of people put at life-threatening risk."
Through the 70's and 80's plaintiff's lawyers cited the Simpson papers, and new research on mesothelioma to document the asbestos industry's failure to protect their workers.Workers who had served their country and trusted their employers were able to get compensation for the deceptions worked against them.
Asbestos companies file for bankruptcy In 1982, after a series of legal defeats in asbestos cases, Johns-Manville declared bankruptcy. At time it was the largest US corporation ever to do so. As they continued to lose in court other companies and manufacturers of products using asbestos did the same. Now bankruptcy courts are involved in determining the size of most victims' awards.
Asbestos companies, lawyers, and the US Congress must work out a plan, including legislation, to deal with victims' and their families' needs. The plan must also reckon with the needs of future victims, such as those who breathed the air in lower Manhattan after 9/11. Unsafe exposure still continues, and these victims' illnesses will be diagnosed in the years to come.
Casey Gerry Schenk Francavilla Blatt & Penfield LLP's team of asbestos lawyers led by Frederick Schenk have spent the last quarter century networking compiling and sharing information with colleagues, enabling the ability for attorneys to identify manufacturers, installers, sellers and industrial users of asbestos products. The result of this cooperative work helps enable mesothelioma victims to recover damages for their suffering related to exposure to asbestos.
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