Safeway sued for poisoning employee

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.

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