US Senate votes for asbestos awareness week

March 30, 2007

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Safeway sued for poisoning employee

March 30, 2007

Safeway, Inc. was sued today in Los Angeles County Superior Court by custodial worker Jose Gamboa for injuries he alleges to have sustained while working at a Vons Supermarket in Pasadena. Gamboa, diagnosed last year with malignant pleural mesothelioma, worked for eighteen years at the Vons Supermarket cleaning a boiler and motor room that was allegedly filled with airborne asbestos.

Asbestos causes mesothelioma, a fatal cancer of the pleural membrane surrounding the lungs.

The lawsuit claims that Safeway’s actions involved negligence, deceit, fraudulent concealment, and battery, among other charges. Gamboa, an American citizen who does not speak English, claims he was forced to sign a release every year in English saying that he knew he may have been exposed to asbestos. Gamboa is represented by Simon, Eddins & Greenstone (Long Beach) and the law office of Roger G. Worthington (San Pedro).

It is alleged that Safeway never cleaned up or abated the asbestos, to which numerous other employees and customers may have been exposed. Asbestos is rated as a Class X hazard, the most deadly rating for a hazardous material in California.

Killing Profits

When Jose Gamboa left the fields of Mexico for opportunity in America, he arrived in this country healthy, optimistic, and ready to work. A U.S. citizen, he eventually took a position with Vons Supermarket as a maintenance man. A good-natured, genial father and husband who believed that hard work was good for the body and the mind, Jose took his job duties seriously.

After 18 years of diligence and hard work, Jose was repaid with a death sentence.

As Jose worked to put bread on the table for his wife and seven children, Vons Supermarket was allegedly exposing Jose’s lungs to deadly asbestos fibers. In 2006 Gamboa was diagnosed with malignant pleural mesothelioma, an aggressive and almost always fatal asbestos cancer that afflicts the lining of the lungs.

“Caring for our Employees”

Steve Burd, Safeway/Vons CEO, union buster, and the man once hailed as the “Sam Walton of supermarkets,” recently told the Los Angeles Times that wellness programs and preventive care were probably the most important element in workplace reform. He put the “reinvention of healthcare” high on his list of priorities.

This “reinvention” meant that that shortly after Jose Gamboa had his right lung amputated as a result of the cancer, his Vons health insurance ran out. He was unable to pursue his chemotherapy regimen. Today, this proud hard-working father who speaks broken English at best is casting about in search of government funded Medicaid so he can resume his life-elongating treatments. Meanwhile, this tumor continues to grow, and the fibers which infiltrated his lungs at Vons over a course of years, continue to fester.

Gamboa’s American Dream has been transmutated by Burd’s supermarket chain into a nightmare.

Asbestos Poisoning—a Thing of the Past?

After forty years of knowingly poisoning U.S. servicemen, construction workers, machinists, pipefitters, and a host of other building tradesmen who literally built America, asbestos makers were forced in the mid-1970’s to stop using this killer ingredient in industrial products. Hundreds of thousands suffered lung disease, and tens of thousands more died from asbestos-related illness and cancer in the greatest public health care disaster until AIDS. Mesothelioma deaths will not peak for another twenty years in this country.

Although many of the worst culprits escaped retribution by hiding behind bankruptcy protection, shedding their legal obligations to those they had crippled or killed only to emerge from bankruptcy robust and profitable, corporate America generally stopped actively poisoning citizen America. The philosophy espoused in an internal document in 1966 from an asbestos company, “…if you have enjoyed a good life while working with asbestos products, why not die from it,” formally came to an end.

Not so for Vons Supermarket. According to the lawsuit, a supervisor presented Jose Gamboa with a document that he could not read, every year for the last five years that he worked for Vons, “waiving” his civil rights to any damages caused by asbestos. Each year Jose claims to have dutifully signed and went about his work sweeping and cleaning in the store’s boiler room, a small, hot, enclosed space permeated with deadly floating asbestos fibers. He alleges that he was assured everything was fine. He didn’t know to ask for respiratory protection, and claims none was offered.

The $5,000 Life

For Vons, a company that makes a business practice of keeping health insurance on a very high shelf that thousands of its employees will never reach, the decision was easy: rather than spend less than $5,000 of its own money cleaning up mechanical room asbestos that contaminated employees and patrons alike, the lawsuit alleges that Vons preferred to pass the cost on to health insurers and the medical system, which would have to subsidize the tens of thousands of dollars in cancer care for Jose.

Along the way, the lawsuit claims that Vons made a travesty of California’s workplace protection laws. Title 8, Section 5208 of the California Code of Regulations governs asbestos in the workplace.

These laws required Vons to monitor its air quality since it knew of the contamination as evidenced by the fake “waivers” it required employees to sign. These same workplace safety laws required Vons to demarcate the contaminated area, provide respirators to its employees, mitigate and reduce the contamination to acceptable levels, ventilate the area, provide protective clothing, maintain “clean rooms” for changing clothes, provide showers, provide segregated lunchrooms, inform employees of the presence of asbestos, post warning signs, and even use a foreign language if necessary to ensure that workers comprehended the danger.

The lawsuit alleges that counting on high employee turnover to ensure that harmed workers would never trace their illness back to Vons, the company made a travesty of applicable safety laws and tried to cover its tracks with a legally meaningless and cynical “waiver.” It also allegedly played on knowledge that mesothelioma, caused exclusively by asbestos, takes anywhere from ten to fifty years to erupt. By then, the employee is long gone and his brief affiliation with the supermarket forgotten. All to avoid the estimated $5,000 bill that comes from cleaning up a mess that can kill and injure workers.

Honey, I’m Home

The horror of asbestos contamination is that it passes from father to family. Hospital records are replete with women and children whose only exposure to asbestos occurred when their husband or father came home from work. Dusty clothes passed the deadly fibers onto loving wives and clinging children, and in Jose Gamboa’s case, he now fears for his family. What diseases will spring forth from their chests twenty years hence?

Jose now spends his time moving slowly, trying to go about what’s left of his life with only one lung. Easily winded, unemployable, uninsurable, and in chronic pain, he has now become a ward of the very family he worked so hard to succor.

Jose’s attorney, Roger Worthington, believes that a reckoning will come for Vons. “This solid family man has been struck down by one of the most terrible, deliberate misdeeds I’ve seen in almost twenty years of asbestos litigation. How many other Vons workers are now living with the same ticking bomb? How can this still be going on in 2007?”

Cal OSHA Alerted

Worthington moved quickly to alert California’s Occupational Safety and Health Administration to the ongoing violation at Vons. “As an attorney, I have a duty to notify the authorities of what appears to be an ongoing violation.  I’ve notified Cal/OSHA of the facts presented to me by my client, facts which would strongly suggest that workers and perhaps customers as well continue to be exposed to deadly asbestos fibers at the Von’s supermarket in question.”

Whether or not Vons is brought to heel for its behavior, Jose Gamboa’s life won’t change much. He has a few more months, perhaps a year, to consider what might have been, and to consider who in his family might be next.

Worthington and his co-counsel at Simons Eddins & Greenstone of Long Beach have filed a civil suit against Vons in the Superior Court of California in Los Angeles, seeking damages for their deliberate misconduct, as well as injunctive relief in the form of a mandatory clean up and abatement of the asbestos believed to still be in place.


In vivo study results demonstrate potential of Onconase for treatment of non-small cell lung cancer

March 28, 2007

BLOOMFIELD, N.J., March 26 /PRNewswire-FirstCall/ — Alfacell Corporation (Nasdaq: ACEL – News) today announced that in vivo study results demonstrating the potential of ONCONASE (ranpirnase) for the treatment of non-small cell lung cancer (NSCLC) were recently published in Anticancer Research (2007; 27: 299- 308).

Based on the work of Intae Lee, Ph.D., at the University of Pennsylvania, a paper entitled “Antitumor Efficacy of the Cytotoxic RNase, Ranpirnase, on A549 Human Lung Cancer Xenografts of Nude Mice” shows that:

* ONCONASE significantly inhibited tumor growth of A549 NSCLC cells both
in vitro and in vivo; apoptosis was significantly induced by ONCONASE in
a dose-dependent manner

* Multiple small doses of ONCONASE were more effective than one large
single dose of ONCONASE for the inhibition of tumor growth in animal
studies

* ONCONASE in combination with cisplatin significantly reduced tumor
growth of A549 cells; in large tumors, including those unsuccessfully
treated with cisplatin previously, ONCONASE demonstrated inhibition of
tumor growth

“ONCONASE has important potential clinical uses for the treatment of NSCLC,” said Dr. Lee. “We are pleased that the results of our studies have helped to guide the clinical development of ONCONASE for NSCLC.”

Kuslima Shogen, Alfacell’s chairman and chief executive officer, said, “The publication of this paper in an important peer-reviewed journal is further recognition of the potential of ONCONASE. This data is evidence that ONCONASE has the potential to overcome resistance to, and enhance the performance of, cisplatin. We expect to continue advancing ONCONASE through the development process as we work to build a broad franchise in different therapeutic areas and via multiple treatment modalities.”

About ONCONASE®

ONCONASE is a first-in-class therapeutic based on Alfacell’s proprietary ribonuclease (RNase) technology. A natural protein isolated from the leopard frog, ONCONASE has been shown in the laboratory and clinic to target cancer cells while sparing normal cells. ONCONASE triggers apoptosis, the natural death of cells, via multiple molecular mechanisms of action.

About Alfacell Corporation

Alfacell Corporation is the first company to advance a biopharmaceutical product candidate that works in a manner similar to RNA interference (RNAi) through late-stage clinical trials. The product candidate, ONCONASE, is an RNase that overcomes the challenges of targeting RNA for therapeutic purposes while enabling the development of a new class of targeted therapies for cancer and other life-threatening diseases. In addition to an ongoing Phase IIIb study in malignant mesothelioma, Alfacell is conducting a Phase I/II trial of ONCONASE in non-small cell lung cancer (NSCLC) and other solid tumors. For more information, visit http://www.alfacell.com.

Safe Harbor

This press release includes statements that may constitute “forward- looking” statements, usually containing the words “believe,” “estimate,” “project,” “expect” or similar expressions. Forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from the forward-looking statements. Factors that would cause or contribute to such differences include, but are not limited to, uncertainties involved in transitioning from concept to product, uncertainties involving the ability of the company to finance research and development activities, potential challenges to or violations of patents, uncertainties regarding the outcome of clinical trials, the company’s ability to secure necessary approvals from regulatory agencies, dependence upon third-party vendors, and other risks discussed in the company’s periodic filings with the Securities and Exchange Commission. By making these forward-looking statements, the company undertakes no obligation to update these statements for revisions or changes after the date of this release.

Contact:  david.schull@eurorscg.com, andreas.marathis@eurorscg.com, wendy.lau1@eurorscg.com

Source: Alfacell Corporation


Fair play for navy veterans

March 28, 2007

Mesothelioma has a particular affinity for navy veterans. Caused by asbestos, mesothelioma is a cancer that begins in the lining of the lungs or abdomen and requires timely, rational, cutting edge therapies to provide maximal help for patients. Survival rates from the time of diagnosis may measure in weeks or months, depending on factors such as staging, cell type, age, and the therapies used.[1] Navy veterans suffer disproportionately from this cancer, and shipyard cities like San Diego, Seattle and Los Angeles reflect this in the number of people there who die from mesothelioma.[2]

Just like they need medical care, navy veterans need a level playing field in the courts.

Navy vets who pursue civil claims are confronted by loopholes in the law that allow shrewd asbestos defense lawyers to either  harmfully delay the prosecution of a claim (called “federal officer” removal to federal court), or delay the claim altogether (called the” MDL Black Hole”).

These two procedural weapons have been sanctioned by the federal government, which ultimately must answer to the most massive, unforgivable miscarriage of justice in the history of this country. The solution? Court sanctions for frivolous removals whose primary objective is delay and an order from the US Supreme Court voiding the 1991 order that created the “black hole.”

In the Navy

Naval ships built from the 1930’s to the mid-1970’s used asbestos in numerous components, but nowhere more intensively than in the engine and boiler rooms. Navy machinists, officers and sailors breathed in the lethal asbestos while repairing, maintaining or replacing hi-temp equipment. These hot, dusty, below-deck compartments were often thick with asbestos fibers, and 8-hour work shifts in the engine room were as lethal as swimming in any toxic soup. Navy personnel and civilian shipyard workers oftentimes tragically brought the poisonous fibers home to their families as dust that covered their hair, skin and clothing.

As a result, of the 4,000 Americans diagnosed with mesothelioma every year, about a third were exposed in the navy or in navy shipyards. This number does not include family members who contracted the illness from the “take-home” asbestos.

It can take as long as 50 years from the time of exposure to the onset of mesothelioma symptoms.[3] When the victim of asbestos poisoning gets diagnosed, the shock is extraordinary: primary care physicians who know little about mesothelioma treatment options may deliver the news by saying, “Get your affairs in order and take a long cruise to Tahiti.” [4]

For a navy veteran or shipyard worker who was poisoned aboard a seagoing vessel, being advised to “take a cruise” is its own special kind of irony. Although veterans with asbestos cancers face treatments that are expensive, elusive, and daunting, excellent medical care is available with specialists such as Dr. Robert Cameron of UCLA’s David Geffen School of Medicine, and each year more and more mesothelioma patients find their way to his office.  Regrettably, as we have written before, the VA does not have a current meso research and treatment program for vets.

Double Ordeal

Treatment options do exist to extend the life of some mesothelioma patients. Surgery, chemotherapy, radiation, and immunotherapy are all part of the specialist’s arsenal.[5] Once the treatment begins—treatments which can drain a family’s financial resources—many patients seek legal redress. They need to pay for travel, for the expensive chemotherapy and surgery. They need compensation to make up for lost wages, or loss of future earning capacity. And they need it fast. The only thing that grows more quickly than the tumor is the stack of medical bills.

The defense knows that time is not on a meso patient’s side, so they attempt to “run out the clock.” When a meso patient files his case in state court, alleging exposures while serving on a navy vessel, the asbestos company lawyers lick their chops. Why? Under a tortured reading of the rules of jurisdiction, they contend that federal law, not state law, should apply. The product manufacturer’s  theory is that they made, sold or used asbestos inside Navy ships because they were ordered to do so by the federal government. Consequently, they argue, the case should be removed from state to federal court.

Why would an asbestos company care if the case was heard in state court or federal court? The answer is in the question. Victims want access to a jury. Defendants despise juries. Delay is a victim’s worst enemy. Conversely, delay is the mass poisoner’s best friend. The fact is that if you’ve got mesothelioma and you served your country in the navy, if your case gets removed to federal court, you will never see a jury trial. Never.

In many states such as California, if a case is not resolved during the life time of the patient, and the patient dies from his cancer, then a big percentage of his compensation expires with him. States like California do not allow widows to recover the damages for the decedent’s pain, suffering, anguish, and bodily disfigurement.  The law penalizes the victim for dying of his injury, and rewards the poisoner for making a product so lethal that it kills quickly. The law rewards the bad guy for hiring lawyers who know how to manipulate the procedural law so that their corporate client gets a windfall when the case drags on and their victim perishes.

 How the Shell Game Works

When a navy veteran with mesothelioma files a personal injury lawsuit in state court, the corporate defendant will often invoke a federal rule that allows it to “remove” the case from state to federal court (think of it as an automatic transfer from a state courthouse to a federal courthouse down the street).  The wrongdoer will contend that federal not state law should apply. Their argument is that when a claim results from actions directed by a federal officer, the best place to try the case is before a federal judge in federal court with a federally empanelled jury under federal law.

As Jeffrey Simon, one of the top asbestos trial lawyers in America says, “If they want to try the case in federal court, great. Bring it on. But that’s not what they want. They want to delay until the plaintiff is dead or the case vanishes into the MDL ‘black hole,’ never to see light of day.”

When the wrongdoer files its motion to remove the case to federal court, the stakes become life or death, because if the case is successfully removed it is assigned to a special multi-district litigation (MDL) federal court in Pennsylvania.[6] The asbestos MDL is commonly referred to as “a black hole” because cases sent to it languish with no discovery or trials every taking place[7] while the victims die awaiting a trial that will never occur. The injustice is so great that it mirrors the horrific “Trial” by Franz Kafka.

The solution is simple. Give the patients their day in state or federal court by voiding the judicial order that created MDL-875. And if defendants continue to trot out feeble arguments simply to delay, slap them with sanctions.

Outrage by the Court

To understand the finality of having your case removed to federal court and then sent to MDL-875 in Pennsylvania, consider the following from a memorandum filed with federal court in South Carolina protesting the “black hole”:[8]  “The data collected by the Judicial Panel on Multidistrict Litigation clearly illustrates what an empty promise MDL-875 is, even for the sick and dying. By August 10, 2000, more than 86,000 cases had been transferred to MDL-875. Yet, during Fiscal Year 1998 only four cases were remanded back for trial. In Fiscal Year 1999, only six cases were remanded back for trial.”

Other courts have recognized the injustice of the current scheme.[9] Veterans with mesothelioma, quite simply, deserve their day in court.

The defendants who intentionally used asbestos knowing that it would disable, injure, and kill those exposed to it, deny that removal to federal court is a delay tactic. They argue that that removal to federal court is perfectly allowable because of the federal officer rule cited above.

The argument that removal to federal court is proper under “federal officer” jurisdiction for navy veterans with mesothelioma is both absurd and cruel. Stripped of all the gobbledygook, the asbestos companies are claiming that the navy ordered them to use asbestos without warning about the dangers. They are claiming essentially that the federal government put a gun to their head and commanded them to use a deadly product and, presumably over their sincere and overwrought protestations, commanded them not to warn about the danger.

Can you imagine that? The same companies who tested the asbestos, knew about the dangers, concealed the dangers from the consumers, thwarted medical research on asbestos, and raked in the profits, stand in front of a judge and argue with a straight face that they, as good humanitarians, wanted to warn, but were ordered not to by the bad old Federal Government, which of course everybody loves to hate (unless you’re one of their favorite no big contractors).

No defendant has ever shown, after thousands of asbestos trials, that any federal officer ever directed a defendant not to warn of asbestos hazards, through the use of placards, notices, placards or manuals. To the contrary, military specifications manuals instructed that manufacturers of shipboard equipment were specifically permitted to provide “notes, cautions and warnings” in the technical manual “to emphasize important and critical instructions . . . in accordance with the following definitions: . . . (c) ‘Warning” – Operating procedures, practices, etc., which will result in personal injury or loss of life if not correctly followed.’”[10]

Jumping through the flaming hoops to douse this silly claim takes time off the clock while both sides brief the issues, set the motions for hearing, argue the motions, and sit idly by while the federal judges huddle and make their decision. Though federal courts will often deny the wrongdoer’s request and send the case back to state court, by the time the wheels of justice have lurched forward the patient has lost precious time. The simple solution is to stop allowing MDL to swallow up these cases.

Lawyerly Lies

For wrongdoers, threatening a victim with federal court removal is win-win. If the case gets removed, it is sent to wither away in the basement of a federal court in Pennsylvania. If the case is returned to state court, the plaintiff has lost valuable time because his mesothelioma has likely progressed.

A former machinist on an aircraft carrier and mesothelioma patient put it like this: “These companies made a bunch of money selling their equipment to the navy without warning us that decades later we’d be dying from using it. I think the officers on my ship were as uninformed about asbestos as the rest of us. They didn’t make the boilers, or the turbines, or pumps, or the gaskets or pipe covering. The navy wasn’t negligent then, but if they continue to do business with these corporations that are killing us and covering it up, and if the federal courts allow the crimes to continue, then maybe my government is negligent now. I guarantee it, if the Navy threatened to stop ordering equipment from GE or Westinghouse, they’d ‘fess up and settle real fast.”

Tell the family of Admiral Elmo Zumwalt that they should not grieve the loss of their father, who died of mesothelioma. Tell the family that Admiral Zumwalt was responsible for his own demise, because he supposedly ordered corporate America to sell the navy asbestos lade machinery without warning sailors about the dangers of asbestos.

The time to help navy veterans get their day in court? After more than 86,000 miscarriages of justice, perhaps the time is…now

[1] CancerMonthly.com, 2007, http://www.cancermonthly.com/cancer_basics/mesothelioma.asp

[2]  The San Diego Union-Tribune, March 15, 2004

[3]  American Cancer Society, January 5, 2007, http://www.cancer.org/docroot/CRI/content/CRI_2_2_2X_What_causes_mesothelioma_
Can_it_be_prevented_29.asp?rnav=cri

[4]  The Anniston Star, March 30, 2005

[5]  American Cancer Society, January 5, 2007, http://www.cancer.org/docroot/CRI/content/CRI_2_2_4X_Treatment_for_mesothelioma_29.asp?rnav=cri

[6]  Multi-district litigation courts are created pursuant to federal law, 28 U.S.C. §1407

[7]  In re Maine Asbestos Cases, 44 F.Supp.2d 368, 374 (D.Me 1999).

[8]  In the United States District Court for the District of South Carolina, Rock Hill Division, Milton Duncan and Mary Ann Duncan vs. Alfa Laval, Inc., et. al., Plaintiffs’ Emergency Motion for Remand for Lack of Subject Matter Jurisdiction and Memorandum in Support Thereof

[9]  The United States District Court for the Southern District of Texas found that if the cases were not remanded, “They will surely be transferred to the MDL Court in the Eastern District of Pennsylvania.  There are thousands of asbestos cases pending in that forum, and, if history be any indicator, Plaintiff’s claims against the Remaining Defendants will not be heard for many years. Keeping these claims in federal court will not increase efficiency and expediency. Rather the opposite is true.” Madden v. Able Supply Company, 205 F.Supp.2d 695, 702 (May 27, 2002).

[10]  MilSpecs Manual, 1961


International analysis of global asbestos epidemic

March 28, 2007

The March 10 issue of The Lancet published an article on the potential for a global epidemic of asbestos-related diseases. The latency period for cancers such as mesothelioma averages 30-40 years, and asbestos exposures in the 1960’s and 1970’s will be producing disease and debilitating injury in the coming years.

Summary

The potential for a global epidemic of asbestos-related diseases is a growing concern. The study assessed the ecological association between national death rates from diseases associated with asbestos and historical consumption of asbestos.

The study calculated mortality for each disease associated with asbestos (pleural, peritoneal, and all mesothelioma, and asbestosis) in 2000–2004 and asbestos consumption per person 1960–1969.

Historical asbestos consumption was a significant predictor of death for all mesothelioma in men and women, for pleural mesothelioma in men, for peritoneal mesothelioma in men and women, and for asbestosis in men. Clear associations were shown between deaths and historical asbestos exposure, especially for all mesothelioma in men and women, and asbestosis in men. The data strongly support the recommendation that all countries should move towards eliminating use of asbestos.


Sen. Specter’s latest run at bailing out the asbestos industry: a crack in the dike?

March 25, 2007

It may have failed to jolt you awake in the middle of the night when Sen. Arlen Specter proposed a tiny amendment to the budget resolution. In fact, the wording of the amendment 1 would have made sense to only a few insiders. But the reaction in the U.S. Senate was swift because the implications were so ominous—was the fragile political dike that protects asbestos victims from losing their rights in court about to crack?

Budgets and Stuff

Specter’s arcane amendment was tacked onto Senate Concurrent Resolution 21, otherwise known as “the budget.” In English, it said that the budget would be revised to accommodate funding for any asbestos reform bill brought to the floor as long as it didn’t increase the total deficit between 2007-2012. Last year, recall that The FAIR Act never received a floor vote in the U.S. Senate due to a procedural maneuver that prevailed by a single vote (more on this below).

So far it just sounds like good, old-fashioned, pay-as-you go fiscal prudence, although you might have been struck by the fact that there was no such asbestos reform bill anywhere in sight. The second paragraph was even fuzzier. “A point of order brought under section 201(a) or section 203(b) shall not apply…regarding asbestos reform.”

The intent of this opaque language was to blunt the sharpened stick that the senate had rammed into the eyes of Specter’s asbestos misnomer reform bill (which we’ll call “UNFAIR 1”) in 2006. With more than $17 million in hard cash already banked from corporate America 2 , UNFAIR 1 seemed poised to gut legal redress for those poisoned by asbestos. At the last moment, fiscal conservatives banded with those outraged by UNFAIR 1 and raised a point of order on the floor of the senate. 3

A “point of order” sounds like a kindly, senatorial fellow getting to his feet and advising his colleagues in avuncular fashion about some harmless piece of trivia. In reality it is a procedural nuclear weapon on the senate floor. When a senator brings a point of order under sections 201(a) or 203(b) of the 1974 Congressional Budget Act 4 , he essentially throws down a gauntlet saying that unless sixty senators vote to waive the point of order, the proposed legislation will die on the vine because it spends over the allotted budget. Getting sixty senators to agree and then go on record that a law will not illegally increase the federal budget is a huge hurdle.

Specter’s UNFAIR 1 asbestos bill stumbled and broke its neck due to this procedural maneuver, so he and his corporate backers decided to lay the groundwork for UNFAIR 2. They began by attempting to strip the use of a point of order from the arsenal of advocates for asbestos victims and patients. When UNFAIR 2 or any similar legislation finally made it to the floor, they’d be ready. Hoping that attention on the upcoming elections and media coverage of the Iraq War would distract his opponents, Specter – a doggedly loyal friend of the asbestos industry — also saw the amendment as a way to test the newly emboldened Democratic enemy. How much fight would they have left after narrowly defeating UNFAIR 1 in 2006, a dogfight that consumed over $25 million in lobbyist fees?

Lean and Mean

The wily Sen. Specter’s machination, however, fell flat. Asbestos victim champions Sen. Harry Reid and Sen. Dick Durbin, far from being worn out, saw the ploy coming and aggressively cut it off. Spurred by big gains in the house and a majority in the senate, asbestos patient advocates pounced on the amendment. Their wordsmithing on Specter’s language left him smoldering. 5 Far from blunting the pointed stick, the final wording on the amendment sharpened it. The revised amendment said that yes, asbestos reform legislation must not add to the deficit, and went on to strip away Specter’s prohibition of a point of order, and finally defined asbestos reform so clearly that any bill eventually making it to the floor would probably not fit within the amendment. In short, asbestos patient advocates took Specter’s sally, de-fanged it, and rubbed salt into the wound.

Despite what turned out to be a legislative fire drill, Specter’s actions raised a red flag. His unrelenting agenda to guarantee a bailout bill for corporate wrongdoers, keep those poisoned by asbestos out of the courts, and prevent mesothelioma patients from getting redress is still very much alive and well. Specter’s chief of staff Scott Hoeflich is said to have UNFAIR 2 on his agenda, and nothing else. This first procedural skirmish was likely an attempt to gird the wrongdoers’ loins as they prepare for another battle, undeterred by a chairman of the judiciary committee who seems less than eager to let UNFAIR 2 get onto the senate floor.

First the Budget, then the Floor

Specter and his anti-patient, anti-veteran cohorts clearly sought to prepare the way procedurally in case asbestos legislation ever gets to the floor. The hopes for UNFAIR 2 are slim, but asbestos victim champions like Sen. Patty Murray are now in a position to do something for patients and for the public. Sen. Murray’s recent hearings on banning asbestos indicate that legislation might soon be back 6 , but just because her legislation reaches the senate floor friendly to victims doesn’t mean it will stay that way.

Had Specter’s maneuver succeeded to broadly apply the point of order exemption to any asbestos reform legislation, Sen. Specter might have been able to lard up, junk up, or sabotage Sen. Murray’s much needed Ban Asbestos Act. He likely would have tried to amend victim-friendly legislation once it reached the floor to bail out corporate henchmen, strip away the rights of patients, pay pennies on the dollar to mesothelioma victims, and not have the legislation killed with a point of order. Senators Reid and Durbin deserve respect and appreciation for slapping down this bit of chicanery.

The lesson: Sen. Specter is like the multi-headed hydra monster of lore. He will stop at nothing to prevent meso victims from exercising their constitutional rights to seek full redress for their avoidable and tragic disease. It would be a grave mistake for labor, the patient population, and their legal advocates to assume the coast will remain clear. Stay tuned, and stay vigilant.


[1] SEC. 326. DEFICIT-NEUTRAL RESERVE FOR ASBESTOS REFORM LEGISLATION.

(a) In General.–The Chairman of the Senate Committee on the Budget shall revise the aggregates, allocations, and other appropriate levels in this resolution for a bill, joint resolution, amendment, motion, or conference report regarding asbestos reform, by the amounts provided in such legislation for that purpose, provided that such legislation would not increase the deficit over the total of the period of fiscal years 2007 through 2012.

(b) PAYGO Exception.–A point of order brought under section 201(a) or section 203(b) shall not apply, upon the execution of the requirements under subsection (a), to any bill, joint resolution, amendment, motion, or conference report regarding asbestos reform.

[2] Open Secrets. http://www.opensecrets.org/payback/issue.asp?issueid=AB2&CongNo=109

[3] Insurance Journal, February 15, 2006. http://www.insurancejournal.com/news/national/2006/02/15/65431.htm

[4] Center on Budget and Policy Priorities, November 6, 2006. http://www.cbpp.org/3-7-03bud.htm

[5] SEC. 326. DEFICIT-NEUTRAL RESERVE FOR ASBESTOS REFORM LEGISLATION.

The Chairman of the Senate Committee on the Budget may revise the aggregates, allocations, and other appropriate levels in this resolution for a bill, joint resolution, amendment, motion, or conference report regarding asbestos reform, that (i) provides monetary compensation to impaired victims of an asbestos-related disease, (ii) does not provide monetary compensation to unimpaired claimants or those suffering from a disease who cannot establish that asbestos exposure was a contributing factor in causing their condition, and (iii) is estimated to remain funded from nontaxpayer sources for the life of the fund, by the amounts provided in such legislation for that purpose, provided that such legislation would not increase the deficit over the total of the period of fiscal years 2007 through 2057.

[6] Ban Asbestos in America Act 2007|


2007 Ban Asbestos legislation an improvement over 2003 draft legislation

March 12, 2007

Notable differences include:

1. The 2003 bill called for a panel composed of various state and national entities to study asbestos fibers, but the 2007 bill does not. The 2007 bill calls for a network to decide how funds should be appropriated and to which research institutions funds should go. State and national entities, of course, have historically worked hand in glove with industry to downplay the dangers of asbestos and to rely on clearly bad or even non-science to set dangerous threshold levels for asbestos exposure. By co-opting the state and national entities through administrative processes such as limited public funding, stripped down enforcement capability, and undue influence of industry advisory groups, asbestos makers have historically kept research and science on asbestos on a very short leash. The 2007 legislation opens up the possibility that scientific labs and researchers who are truly seeking scientific advancement for mesothelioma research will have access to research dollars.

2. The 2007 bill describes in more detail the more than 40 countries that have banned asbestos. Additionally, the 2003 bill states that France will ban asbestos in 2005, whereas the 2007 bill establishes that the entire European Union banned asbestos in 2005. This important language puts in perspective our government’s dereliction of duty with regard to protecting Americans from asbestos poisoning, and sets an international standard to which occupational health must live up to.

3. The 2007 bill is less specific as to what research will be done and how it is to be done. It sets forth that the NIH Director is responsible for appropriating funds. The 2003 bill tried to allocate resources directly. This important change means that there is at least a good possibility that research topics will be defined through the give and take of scientific analysis.

4. The 2007 bill does not state which research entities will receive funding, but states in more detail which types of entities are eligible, whereas the 2003 bill did not make these distinctions. Again, this approach gives a leg up to institutes that specialize in mesothelioma and asbestos research.

In all, the 2007 bill is much more thorough. Its language on research means that asbestos research and funding will not become captive of the asbestos and manufacturing industries, as has happened repeatedly throughout the medical and scientific history of mesothelioma and asbestosis.