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North Carolina Mesothelioma Workers’ Compensation Claims: 2013 Appeals Court Ruling About What Employer / Insurance Company Is Liable And Must Pay WC Benefits To Worker Or Family

June 10, 2013 by Leave a Comment

In May 2013 the North Carolina Court of Appeals reversed a determination by the North Carolina Industrial Commission (NCIC) having to do with the payment of benefits in an asbestos workers’ compensation case involving mesothelioma.

Essentially, this appellate court ruling states that the NCIC erred when determining which insurer was responsible for paying benefits to an asbestos claimant who had developed the asbestos cancer mesothelioma – as opposed asbestosis, which is chronic pulmonary fibrosis caused by prolonged and regular exposure to asbestos dust.

In this unpublished appellate opinion, Richardson v. PCS Phosphate Co., the NC Court of Appeals found that the Industrial Commission had incorrectly used the standard for asbestosis, instead of mesothelioma, cases when determining the plaintiff’s so-called “last injurious exposure”. This determination is critical in asbestos-related workers comp (WC) claims in North Carolina because it determines which employer and/or its insurance company is responsible for paying WC benefits to the worker or his family.

Specifically, this recent 2013 NC court ruling about the last injurious exposure standard held that the requirement in N.C.G.S. section 97-57 — a 30 day exposure to asbestos dust within seven (7) consecutive months — did not apply to mesothelioma cases but, rather, only to asbestosis cases in North Carolina.

For more information, see:

 

 Mesothelioma, Asbestos, and Legal Compensation: Basic Facts

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Asbestos Defendant Pittsburgh Corning Bankruptcy Plan Approved By Federal Judge But, Unfortunately, Legal Appeal Likely That Will Further Delay Claim Compensation Payments To Victims

June 3, 2013 by Leave a Comment

On May 24, 2013 there was an important development as regards the Pittsburgh Corning (commonly referred to as “PC” in the litigation) asbestos bankruptcy, which has now dragged on for 13 years.

From the Pittsburgh Post-Gazette article, “Pittsburgh Corning’s asbestos legal woes grinding on — Appeals, number of claimants keep Pittsburgh Corning’s asbestos bankruptcy grinding through the court system”:

The reorganization plan signed May 24 by U.S. Bankruptcy Court Judge Judith Fitzgerald clears the way for creation of $3.5 billion trust that will assume Pittsburgh Corning’s asbestos-related liabilities and pay out the claims. The two companies that own Pittsburgh Corning — PPG Industries and Corning Inc. — will contribute millions of dollars to the trust and eventually give up their stakes in the company….

More than 400,000 asbestos-related lawsuits named the company as a defendant. Pittsburgh Corning settled about 200,000 before it filed for Chapter 11 bankruptcy in 2000, saying the remaining cases could exhaust its assets….

Under the final plan proposed for Pittsburgh Corning, PPG would pay about $825 million to the trust through 2023 along with 1.4 million shares of PPG stock or the cash equivalent. Corning would pay $290 million for the next six years. Their insurers would kick in $1.7 billion.

As the approved bankruptcy plan stands now, the Pittsburgh Corning (PC) Asbestos Trust payments are expected to cover about 37 percent of their claims, i.e., the PC Trust would pay 37 cents-on-the-dollar of the full value of an asbestos disease claim, such as a mesothelioma case.

However, unfortunately, it is likely that insurance companies for Pittsburgh Corning will appeal before a U.S. District Court judge gives the PC Asbestos Trust plan final confirmation — meaning that the hundreds of thousands of asbestos claimants will have to wait even longer for payments, possibly into next year, 2014.

Meanwhile, while the legal wrangling continues, more asbestos workers with claims against Pittsburgh Corning — for exposure to PC’s Unibestos pipe insulation that was manufactured from 1964 to 1972, as one example — will die before they receive any payment to compensate them for their asbestos disease.

 Mesothelioma, Asbestos, and Legal Compensation: Basic Facts

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Protect Asbestos Victims: Reasons To Oppose H.R. 982, the Furthering Asbestos Claim Transparency (FACT) Act of 2013

April 10, 2013 by Leave a Comment

As an asbestos attorney who has been handling mesothelioma, asbestos lung cancer, and asbestosis cases for more than 20 years, I urge you to call or write your elected official in the U.S. House of Representatives in Washington, DC and tell them to oppose H.R. 982, the Furthering Asbestos Claim Transparency (FACT) Act of 2013.

In effect, this House bill is a one-sided attempt to hurt asbestos victims by allowing the asbestos industry to delay and deny accountability so victims die before they are able to receive justice.

To learn how H.R. 982, the FACT Act of 2013, is a misguided piece of legislation, read this insightful piece:  “What “Lies” Beneath the Wall Street Journal Asbestos Article, Myths and Facts Exposed”.

Here are some important points that you may want to include in the email or letter which you send to your respective member of Congress in Washington:

  • The dangers associated with asbestos exposure have been known since the early 1930s.
  • Still the asbestos industry hid the facts, exposed workers and families, and now nearly 10,000 Americans are killed by asbestos diseases every year. This bill does not focus on banning asbestos nor does it look at ways to expedite asbestos cases.
  • This bill, H.R. 982,  instead would require private asbestos bankruptcy trusts to publicly release extensive individual information about asbestos victims and slow down asbestos cases by allowing asbestos defendants to bury the trusts in information requests, no matter how unnecessary or irrelevant. This denies and delays justice for asbestos victims who do not have time on their side.
  • Congress should focus on keeping Americans safe from asbestos exposure and not protecting corporations that deliberately exposed workers and consumers for decades. Oppose H.R. 982!

 Mesothelioma, Asbestos, and Legal Compensation: Basic Facts

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NC Senate Bill 429 / House Bill 415: Asbestos Lawsuit Immunity Bills Which Would Benefit ALEC Member Crown Cork & Seal And Possibly Other Companies With Asbestos Liability

April 3, 2013 by Leave a Comment

North Carolina State Legislators Are Being Led Astray By The American Legislative Exchange Council (ALEC) And Its Successor Asbestos-Related Liability Fairness Act

In North Carolina there is legislation being considered currently that offers immunity to Crown Cork & Seal (and possibly others) for asbestos liability it legally acquired when it bought another manufacturing company, Mundet Asbestos, back in 1963. In effect, this legislation, if it became law, would bailout an out-of-state corporation allowing it to escape responsibility for its business dealings and shift the burden of caring for people in North Carolina with asbestos-related diseases from the legally responsible corporate entity to the NC taxpayers.

North Carolina Senate Bill (SB) 429 filed by Sen. Harry Brown (R-Onslow) and NC House Bill (HB) 415 filed by Rep. Jacqueline Schaffer (R-Mecklenburg), Rep. John Blust (R-Guilford), and Rep. Tom Murry (R-Wake) were filed in late March 2013. These pieces of proposed legislation are identical and based on a model bill created by the American Legislative Exchange Council (ALEC) – Successor Asbestos-Related Liability Fairness Act — that 16 states have now passed and which gives virtual immunity to corporations that purchased an asbestos-making company in the past.

This proposed legislation recently filed in North Carolina — and  which has been made law in 16 other states, already — says that if one company purchased another company which had manufactured asbestos-containing products, the parent company is only liable to people who developed an asbestos disease or cancer like mesothelioma due to being exposed to that asbestos product up to the amount the parent paid for the acquired company.

This law would mean that companies like Crown, Cork and Seal (CC&S) would be immune from any and all future asbestos and mesothelioma lawsuits because CC&S has already paid out more in asbestos lawsuits than it paid for Mundet 50 years ago, back in 1963.

It is important to known that the dangers associated with asbestos exposure have been known since the early 1930s. Still the asbestos industry hid the facts, exposed workers and families, and now nearly 10,000 Americans are killed by asbestos diseases every year.

Essentially, CC&S bought an asbestos company and, rather than be stuck with Mundet’s legal liabilities pursuant to well-established tort law, CC&S wants to undo their bad business decision (in hindsight) and go to the state legislatures by means of ALEC to make this happen for them.

Not a bit surprising to me, at least, is the fact that Crown, Cork and Seal (CC&S) is a member of ALEC, according to Source Watch.

States where this asbestos lawsuit immunity law has passed thus far are Alabama, Arizona, Florida, Idaho, Indiana, Michigan, Mississippi, Ohio, Oklahoma, South Carolina, South Dakota, Nebraska, North Dakota ,Texas, Wyoming, and Utah.

As a North Carolina asbestos-mesothelioma attorney, I am opposed to NC SB 429 and NC HB 415 and I urge our state legislators in Raleigh to not join the states above that have the dubious distinction of having been led astray by the American Legislative Exchange Council (ALEC) and its Successor Asbestos-Related Liability Fairness Act.

In order to learn more about why this ALEC asbestos immunity legislation should be defeated in North Carolina, see this Lawyers.com article, “ALEC Puts the Screws to Asbestos Victims”. And thereafter, if you live in North Carolina or you have been affected by an asbestos disease or cancer like mesothelioma, you should contact one or more of the following NC legislators and voice your opposition to NC SB 429 and NC HB 415  – which may be good for ALEC and its corporate members like Crown Cork & Seas (CC&S) but is absolutely no good for the people of North Carolina.

Those North Carolina legislators who are being led astray by the American Legislative Exchange Council (ALEC) and its Successor Asbestos-Related Liability Fairness Act are:

Sen. Harry Brown (R-Onslow);

Rep. Jacqueline Schaffer (R-Mecklenburg);

Rep. John Blust (R-Guilford); and,

Rep. Tom Murry (R-Wake).

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Recent Medical Study Discusses New Testing Method That May Help Doctors Determine The Prognosis And Diagnosis Of Pleural Mesothelioma For Individuals With Past Asbestos Exposure

February 12, 2013 by Leave a Comment

In its October 11, 2012 edition the New England Journal of Medicine (NEJM) published this article, “Fibulin-3 as a Blood and Effusion Biomarker for Pleural Mesothelioma”.

From the Abstract for this 2012 medical article about pleural mesothelioma testing:

Background
New biomarkers are needed to detect pleural mesothelioma at an earlier stage and to individualize treatment strategies. We investigated whether fibulin-3 in plasma and pleural effusions could meet sensitivity and specificity criteria for a robust biomarker.

Conclusions
Plasma fibulin-3 levels can distinguish healthy persons with exposure to asbestos from patients with mesothelioma. In conjunction with effusion fibulin-3 levels, plasma fibulin-3 levels can further differentiate mesothelioma effusions from other malignant and benign effusions.

A December 2012 report about this NEJM article, “Fibulin-3 biomarker may detect early-stage pleural mesothelioma”, published on the HemOncToday web site provided this overview by James P. Stevenson, MD, Staff Physician, Department of Solid Tumor Oncology, Taussig Cancer Institute, The Cleveland Clinic:

This study is important in that it describes the first highly-sensitive and specific plasma and pleural effusion biomarker for pleural mesothelioma. Studies of other markers including soluble mesothelin-related protein (SMRP) and osteopontin did not show enough sensitivity/specificity to be considered “robust” biomarkers for mesothelioma. The authors do caution that while promising, these results need to be validated prospectively in future studies.

Does this mean we now have a screening test for mesothelioma, given the finding that fibulin-3 levels were not elevated in asbestos-exposed individuals who did not have mesothelioma? No. To have an effective screening test you must able to apply the test to a well-defined at-risk population. There are multiple, varied workplaces and occupations that were associated with asbestos use and exposure, and mesothelioma can develop in people who had both short and prolonged exposures (as well as family members who had indirect exposure through clothing, etc.). Also, the lag time between asbestos exposure and the development of mesothelioma is typically 20-50 years, raising the question of when to screen.

The December 2012 HemOncToday web site report also provides a good summary of the study described in the NEJM medical journal article about pleural mesothelioma diagnosis and prognosis.

 Mesothelioma, Asbestos, and Legal Compensation: Basic Facts

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Plaintiff Allowed To File An Asbestos-Mesothelioma Lawsuit Years After Filing An Earlier Asbestos Lung Cancer Case

December 31, 2012 by Leave a Comment

Some States Have A “Two Disease” Or “Separate Disease” Rule That Permits The Second Case To Go Forward

The Daley v. A.W. Chesterton opinion which was handed down by the Pennsylvania Supreme Court in 2012 discusses the so-called “two disease” or “separate disease” rule.  In that case an individual diagnosed with mesothelioma was allowed to file a new asbestos lawsuit even though he had previously sued and recovered for asbestos-related lung cancer in a separate case about ten years earlier.

The “two disease” or “separate disease” rule, as applied in this Pennsylvania Supreme Court opinion, permitted the plaintiff to file a new lawsuit for a malignant asbestos-related disease, i.e., mesothelioma, even though he had previously filed a legal action for a different malignant asbestos-related disease, i.e., lung cancer, based on this reasoning:

  1. the second or subsequent lawsuit is based on a separate and distinct disease;
  2.  which was not known to the plaintiff back at the time when his first action was filed; and,
  3.  the asbestos-mesothelioma “second” case was filed within the applicable statute of limitations period.

Only certain states follow the “two disease” or “separate disease” rule, so it is important to check with an experienced asbestos attorney if you have a situation where mesothelioma is diagnosed after there had been an earlier asbestos lawsuit involving lung cancer or asbestosis.

 Mesothelioma, Asbestos, and Legal Compensation: Basic Facts

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Secondhand Asbestos Exposure, Or Household / Indirect Exposure To Asbestos, Might Give Rise To An Asbestos Lawsuit For Legal Compensation

December 11, 2012 by Leave a Comment

Family members of workers who worked with or around asbestos-containing products may have had so-called secondhand asbestos exposure — also called household or indirect exposure to asbestos dust.  For example:

  • A wife washing the asbestos worker’s dusty clothing; or, even more unexpectedly,
  • The children giving a welcome-home hug each day to their father while he was still in his work clothes laden with asbestos dust.

Often times it can be determined how the asbestos exposure during childhood happened and, in turn, an asbestos lawsuit for legal compensation can be filed on behalf of the mesothelioma victim or her surviving family.

The primary issue in secondary exposure asbsestos-mesothelioma lawsuits is whether there was a legal duty to warn going from the asbestos worker’s employer to the secondarily exposed person, such as the worker’s wife, in the state(s) where the person had household or indirect exposures to asbestos dust.

As of October 2012, 16 states have court decisions addressing this basic legal liability issue in asbestos-mesothelioma secondary exposure lawsuits.

The following states permit secondary exposure claims:  Illinois; New Jersey; Louisiana; Tennessee; California; and, Washington.

And these states do not allow these types of asbestos-mesothelioma lawsuits: Delaware; Ohio; Kansas; Iowa; Kentucky; Michigan; Texas; New York; Georgia; and, Maryland.

The remaining 34 U.S. states have not had a final court ruling, yet, about whether a person diagnosed with mesothelioma can file a secondhand asbestos lawsuit and hold an employer of their husband or father, i.e., the asbestos worker,  legally responsible for that asbestos cancer.

 Mesothelioma, Asbestos, and Legal Compensation: Basic Facts

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Asbestos Lung Cancer Cases: Number Of Filed Lawsuits Increasing Across The U.S.

November 25, 2012 by Leave a Comment

In Recent Years And Going Forward, Malignant Claims Such As Mesothelioma And Asbestos-Related Lung Cancer Will Continue To Lead Asbestos Litigation New Filings

While malignant mesothelioma (“meso”) claims get the most attention in the ongoing asbestos litigation, the asbestos lung cancer lawsuits are significant legal claims, also.  These “other” asbestos-related cancer cases have been increasing in number over recent years and that trend is expected to continue in the U.S. over the next several years.

According to the American Lung Association Fact Sheet, in 2012 an estimated 226,160 new cases of lung cancer will be diagnosed.

Where that diagnosis was made in a worker who might have been exposed to asbestos 20 years or more ago, it is likely that this past asbestos exposure played a role in causing the asbestos worker’s lung cancer.

This asbestos “link” to the lung cancer would be present even if the worker smoked cigarettes insofar that the combination of smoking and asbestos exposure acts in synergy to greatly multiple the risk of that worker developing lung cancer.  Put differently, there is a greater risk of lung cancer when there is asbestos exposure for a worker who also smoked — compared to what the lung cancer risk would be in a person who just smoked cigarettes or was just exposed to asbestos in the past.

In the leading asbestos filing jurisdictions of New York City, Philadelphia, Madison County, Illinois, and California there has been a marked increase in the number of asbestos lawsuits filed that involve lung cancer — with this upward trend is seen less obviously all across the country.

And, in fact, we have been getting a growing number of Case Evaluation submissions for possible asbestos-related lung cancer lawsuits this past year.

We have more information about asbestos lung cancer and mesothelioma available at out Asbestos-Mesothelioma.com web site.

See also the Lung Cancer Awareness page at the U.S. Centers for Disease Control and Prevention web site.

 Mesothelioma, Asbestos, and Legal Compensation: Basic Facts

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An Asbestos-Mesothelioma Death In The UK That Hits Home With Anyone Who Has Lost A Loved One To An Asbestos Disease

October 24, 2012 by Leave a Comment

The title of this news article from the United Kingdom (UK) speaks to all who have been affected by asbestos and mesothelioma, regardless of where one lives:

 ’He just hoped he would be one of the lucky ones.  We were all devastated that he wasn’t’.

In this instance, it was Michael Wareham (on the left in picture below) who died in 2010 of mesothelioma, an asbestos-related cancer, at age 73.

Michael Wareham, left, who died in 2010 of an asbestos-related cancer, aged 73.

 

From that UK news article:

He claimed he was regularly exposed to the dust when he worked at the Watford Timber Co Ltd in the 1950s and 1960s as a joiner and machinist, cutting asbestos sheets. Years later, when he learned of the dangers of the material, he told his family he hoped he would be one of the lucky ones, but unfortunately they were left heartbroken.

Someone like Michael Wareham or his family here in the U.S. may be entitled to legal compensation from an asbestos lawsuit or a workers compensation claim filed by an asbestos attorney because asbestos exposure causes mesothelioma, asbestos cancers like lung cancer, and asbestosis.

While I handle these asbestos cases I surely wish that my services were not needed and that no one went through what Michael Wareham and his family did.

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Asbestos settlements part of ‘global’ deal

October 22, 2012 by Leave a Comment

Quoted from http://www.dailyinterlake.com/news/local_montana/article_b01405d8-1b0e-11e2-b712-001a4bcf887a.html

 

Asbestos settlements part of ‘global’ deal

Victims to receive varying amounts of compensation

By LYNNETTE HINTZE/The Daily Inter Lake Daily Inter Lake

Lawyers for Libby asbestos victims are working toward settlements with W.R. Grace & Co., BNSF Railway Co. and certain insurance companies in what Grace has deemed a “global resolution.”

The settlements would give victims varying amounts of financial compensation for exposure to toxic asbestos dust linked to the former Grace vermiculite mine near Libby.

Since the extent of the disease and death caused by asbestos exposure came to light in late 1999, the Center for Asbestos Related Diseases clinic in Libby has acquired a caseload of more than 2,800 patients and has continued to add new patients.

Grace filed for Chapter 11 reorganization in 2001 in response to a growing number of asbestos claims. An Asbestos Personal Injury Committee was set up as part of the reorganization.

Compensation for victims has been a long time coming, and there’s no indication of when the settlements will be finalized.

[Article continues at original source]

Filed Under: Claims, Law, Lawsuits
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