Roger Worthington, P.C.

ASBESTOS has been found in run-down public housing and buildings in remote communities in the Northern Territory, Indigenous Affairs Minister Jenny Macklin said last night. Tradespeople working in the communities raised concerns to the Government about the asbestos in August last year. But the Department of Families, Housing, Community Services and Indigenous Affairs waited two months to investigate.

Read the whole story here.

This year the Meso Foundation has set up a travel grant program to help patients and a travel partner attend the 5th Annual International Symposium on Malignant Mesothelioma in Washington, D.C., from June 26-28.

Targeting a Cure

WASHINGTON, May 28 –Leading international experts on the asbestos-related cancer, mesothelioma, will join meso patients, caregivers, loved ones and advocates to share the latest in treatment, research and clinical trials at the Mesothelioma Applied Research Foundation’s International Symposium on Malignant Mesothelioma, 2008, Thursday, June 26 - Saturday, June 28 at the Hyatt Regency on Capitol Hill, in Washington, D.C.

The Symposium, organized annually by the Meso Foundation, will highlight the latest advances in research and treatment for patients and caregivers, offer psychosocial support to them as well as those who have lost someone to the disease, and provide significant advocacy and volunteer opportunities for all who are intent on eradicating the vicious and terminal effects of this tragic cancer. Click here for whole story.

Fifteen Spanish workers can sue an American company in a New Jersey state court for asbestos-related illnesses they claim were caused while working on U.S. Navy ships in Spain, a state appellate panel ruled on Tuesday. Click here for the whole story.

Excerpt from Laurie Kazan-Allen’s “Governments Debate Asbestos”

Although asbestos has not been banned in the United States, its use has dwindled considerably due to the threat of litigation. Nevertheless, campaigning groups have been actively lobbying for a number of years for a ban on all asbestos use in the U.S. In October 2007, the Ban Asbestos in America Act of 2007 was passed by the Senate.4 Unfortunately somewhere between the drafting of the Senate bill and its unanimous adoption, the language was changed to such an extent that the proposed legislation became unacceptable to the Asbestos Diseases Awareness Organization (ADAO), and others who support the cessation of all asbestos use in the U.S. American business executive, mesothelioma survivor and activist Paul Zygielbaum explains:

“Rather than banning all products containing asbestos, whether as an ingredient or as a contaminant, the revised Senate bill would ban only ‘asbestos containing materials,’ which have a legal definition that generally allows asbestos content up to 1% by weight. The revised bill also calls for studies of the state of scientific knowledge about the hazards of asbestos, a provision sought by industry sources. The bill omits provisions in the earlier draft that would have mandated government testing of products for asbestos content.”5

A determined effort began, directed at the House of Representatives (House), to reinstate the original wording. On May 18, there was a briefing of Democratic staffers on the Energy and Commerce Committee in Washington D.C. to consider the more stringent House Committee Print which seeks to “establish a ban on asbestos-containing products, initiate a public education effort to increase awareness of the dangers of exposure to asbestos and provide compliance testing.” Experts who gave evidence at this hearing included: Peg Seminario, Director of Safety and Health, ALF-CIO, Dr. Arthur Frank from Drexel University, Mrs. Linda Reinstein, Executive Director of the ADAO and others.

Should the House pass a stricter bill than the Senate, a legislative committee will be asked to produce a compromise bill for submission to the President. This opens up yet another can of worms such as the omissions which could be demanded by opponents of the ban as well as the possibility of a Presidential veto. Opinion is divided over the best course of action on the thorny 1% issue. Zygielbaum continues:

“The 1% limit defined in the Senate bill is viewed by some as a stop-gap, with the hope that a future Congress could muster the support needed for a complete ban.Others believe that, if the Senate bill becomes law, it’s unlikely to be revisited in the foreseeable future. Still others point out that the 1% limit would institutionalize asbestos content and contamination in products on American store shelves.one person put it, ‘A 1% limit could mean that it would be permissible to have asbestos in my cornflakes.’”

Speaking about the House hearing on May 18, Mrs. Reinstein said:

“The ADAO supports the House Committee Print that eliminates the 1% exemption and establishes a statutory ban on asbestos. We agree with the World Health Organization’s powerful statement that, ‘The most efficient way to eliminate asbestos-related diseases is to stop using all types of asbestos.’ Scientific technology has made gigantic strides in asbestos detection since the 1970s. We don’t have to compromise public safety by using antiquated analytical standards. Recent Congressional testimony reaffirmed that 1% is not a health based number and asbestos exposure is deadly. We only have one opportunity to ban asbestos - and it is now. Congress can and should pass this legislation to ban asbestos-containing products, initiate a public awareness program and provide for compliance testing which is fully justified, absolutely necessary, and long overdue.”

Whatever the eventual outcome of these activities, there can be little doubt that asbestos victims’ groups and campaigners are now participating at the highest levels of policy making on asbestos issues in the UK, India and the U.S. The bad old days when the asbestos industry had a stranglehold on national asbestos debates is well and truly over.

Full report available here.

In unity,

Linda Reinstein
Asbestos Disease Awareness Organization
1525 Aviation Blvd. Suite 318
Redondo Beach, California 90278

Researchers from the UK and Australia involved in a multicenter randomized trial have concluded that chemotherapy for advanced pleural mesothelioma may not improve survival or quality of life. The details of this study appeared in the May 17, 2008 issue of The Lancet.¹Pleural mesothelioma is a rare and lethal form of cancer caused by asbestos exposure. There are about 2,500 new cases a year in the United States. Because the disease is often advanced at the time of diagnosis, average survival for those with pleural mesothelioma has been significantly less than one year. Recent studies have suggested that chemotherapy can improve quality of life and prolong survival compared with supportive care measures.

The current study compared active symptom control (ASC), with one of two chemotherapy regimens (mitomycin, vinblastine, and cisplatin [MVP] or vinorelbine alone) in 409 patients with advanced pleural mesothelioma. The following table summarizes the main findings of this trial.

There were no differences in quality of life parameters between the three groups. These authors concluded that the addition of chemotherapy to supportive care did not affect survival or quality of life. However, there was a suggestion that vinorelbine could be more effective than supportive care or MVP chemotherapy.

Minnesota Gov. Tim Pawlenty approved a $4.9 million dollar study of mesothelioma and taconite worker’s health Monday, after reaching a compromise with Range legislators. The Minnesota Department of Health has confirmed at least 58 miners’ deaths due to mesothelioma.

1. Novel dyeing method for chrysotile asbestos detection in concrete materials
2. VATS in diagnosis and treatment of advanced malignant pleural mesothelioma
3. Remarkable enhancement of cytotoxicity of onconase and cepharanthine when used in combination on various tumor cell lines
4. The value of occult disease in resection margin and lymph node after extrapleural pneumonectomy for malignant mesothelioma
5. Environmental policies, politics, and community risk perception: case study of community contamination in Casper, Wyoming
6. Trimodality treatment of malignant pleural mesothelioma
7. Video-assisted cervical thoracoscopy: a novel approach for diagnosis, staging and pleurodesis of malignant pleural mesothelioma
8. Overexpression and altered glycosylation of MUC1 in malignant mesothelioma

Our mission is simple: we want our day in court for plaintiffs dying from mesothelioma. Federal multi-district litigation docket 875 has obstructed that end and requires reform. If the judicial panel that oversees MDL 875 refuses to fix the problem after appeals through the proper channels, then we welcome the intervention of the US Senate to hold hearings and pass legislation that will remedy this injustice.

Our firm reported in March 2007 that navy veterans suffering from painful, aggressive, and terminal mesothelioma have had their day in court buried forever in the federal court responsible for asbestos litigation. The infamous “black hole” multi-district litigation docket to which these cases are removed continues to obstruct the rights of mesothelioma plaintiffs to a speedy jury trial.

A star chamber for the 21^st Century

MDL 875 is a holding tank that was created to resolve pre-trial issues and questions of fact that are common to asbestos cases, settle the cases if possible, then return the cases back to the originating federal court for trial once the pretrial issues were resolved or when settlements could not be reached.

The hope was that the One Big Federal Court Program would prevent each district court in each major city from having to go through the lengthy, repetitive process of answering the same pretrial questions over and over and would provide a centralized court that could set up rules for settling cases. It would allow defendants and plaintiffs to quickly get down to the business resolving their case.

The judge presiding over the MDL was imbued with extraordinary powers to influence settlements, resolve pretrial issues, and remand the case for trial.

The current presiding federal district judge, Judge James Giles of the Eastern District of Pennsylvania, took over the multi-district asbestos docket after the death of Judge Charles Weiner in 2005. Judge Weiner resolved thousands of cases, yet thousands more remain holed up in the MDL. An estimated 3,000 of those cases are by malignant mesothelioma plaintiffs, in extremis claimants whose life expectancy is measured in weeks or months.

The key complaint from numerous plaintiffs is that Judge Weiner didn’t settle common questions and he didn’t coordinate. He acted as a forced arbitrator, letting plaintiffs know that they could either settle or see their cases stuck in MDL forever. This gave defendants tremendous leverage, especially with meso cases, because the single biggest tool for justice—a trial in front of a jury—was effectively taken away from plaintiffs. Defendants responded with miniscule settlement offers, or none at all.

The new MDL judge, Judge Giles, has signified that he will continue what Judge Weiner began. His only forward movement on asbestos litigation has been his attempt to dismiss thousands of asbestosis lawsuits that defendants claim were diagnosed by fraudulent doctors. While stalwarts in the pro-asbestos world such as the U.S. Chamber of Commerce have lauded this move, the life-and-death issue of cases filed by mesothelioma victims remains untouched.

How a meso case gets stuck in the black hole

The MDL order does not contemplate that the MDL judge will hold onto cases forever, without remanding them to federal district court for trial. Instead, it creates a framework where a plaintiff files suit, the case is removed to the MDL docket to resolve and coordinate common pretrial questions of law, and then “remanded” back to district court so the trial can proceed if a settlement cannot be reached.

MDL 875 proceedings include the development of cases for settlement, trial or other disposition. They also include supervision of extensive discovery concerning the ongoing flow of asbestos-related personal injury actions in the courts. MDL activities also include prioritizing cases for resolution.

Although theoretically MDL 875 can remand cases for trial, in reality the court has enforced a practice in which it will not remand a case until “all avenues for settlement have been exhausted.” This can take years, and when the meso claimant dies, significant parts of his compensation claim expire as well. Moreover, the MDL has a policy of severing punitive damages from compensatory damages, which means that even when cases are remanded, the most financially meaningful part of the claim remains in perpetual MDL orbit. Even under the best circumstances, the defendants get a windfall by never having to face punitive damages, which translates as artificially lowered settlement offers.

By 2000, out of 66,000 cases only 1,000 ever qualified for remand. The MDL’s discretion on when pretrial issues had been resolved was so great that meso cases rarely got back to federal court for trial. Also by 2000, Judge Weiner had closed 44,723 cases in MDL 875, orchestrated settlements for unfiled claims, and facilitated settlements in state court jurisdictions at the request of state court judges. He is estimated to have resolved or dismissed over four million claims comprised in those 44,273 cases.

This breakneck pace of efficiency with regard to nonmalignant claims sounds great, but for terminal mesothelioma plaintiffs whose cases are never completely resolved or who are forced to accept pennies on the dollar because defendants know they’ll never face a jury, the injustice has been even greater.

Plaintiff’s lawyers like federal court and their juries and would gladly try cases there. There are many features of federal law that facilitate the just disposition of personal injury claims, such as the 6-hour limitation on depositions. Meso lawyers shudder at federal courts because of the MDL graveyard, not because of the procedural law, jury pool, or bench.

Judicial solution

Since a mesothelioma claimant’s life span averages 6-18 months from the time of diagnosis, there must be a mechanism to get their claims resolved if they are to have any meaningful chance of receiving fair compensation for having been poisoned. Justice delayed until after you’ve died is justice denied. What’s crucial is some change in the MDL process to accommodate in extremis, dying meso victims, who are a small percentage of the total docket.

Since the multidistrict litigation court is itself supervised by a panel of federal judges, it made sense early on to seek their intervention to unclog the backlog. The panel, however, refused to intervene, choosing instead to stamp its approval on this miscarriage of justice.

Following the panel’s ruling, Judge Weiner’s policy of holding meso cases hostage in the black hole was challenged in the 3^rd Circuit Court of Appeals. In April 2000 the appeals court upheld Judge Weiner’s approach and agreed with the asbestos companies when it noted approvingly that the court had resolved a prodigious number of claims—44,000 in the first six years alone. But there’s a world of difference between disposing of claims and sending them back to district court where they can be tried. For meso victims, there’s the added factor of time. Even a month’s delay can mean the difference between life and death.

And for all the claims of judicial efficiency, the court still has a backlog of over 100,000 cases, and mesothelioma victims continue to die before their cases are ever heard.

The 3^rd Circuit, the supervising judicial panel, and the MDL court itself have all made it clear that they will never release their grip on these cases. Dying meso patients whose claims are languishing in the federal black hole continue to be denied the right to have their case brought before a jury.

Legislative solution

The idea that legislators can put gentle pressure on the court to un-hitch the most pressing mesothelioma cases from the black hole is unlikely to succeed. Constitutionally, the court is insulated from congressional interference and free to interpret the laws as it sees fit. Practically, with an estimated 3,000 meso cases locked up in the black hole, and each case potentially worth several million dollars, a sudden release of these claims would put huge financial pressure on the defendants who have successfully bottled them up for so many years. It is inconceivable that these companies would give in without a fight.

In our democracy, that leaves one option: legislation. The section of the U.S. Code that authorizes and regulates multi-district litigation already has exemptions carved out for antitrust. Adding language that guarantees in extremis plaintiffs, such as mesothelioma, lung cancer and advanced asbestosis victims, the right to have their cases quickly addressed is feasible, fair, and in line with pronouncements of the MDL court itself. Justice delayed for a mesothelioma victim is no justice at all.

We encourage the U.S. Senate to hold hearings on this crucial issue so that victims don’t have to wait for the afterlife in order to get what they deserve. We encourage victims and their families to write, and call their U.S. Senator to urge that hearings be held on the asbestos MDL. Asbestos defendants have all the time in the world. Asbestos victims do not.