World Trade Center Responders Continue to Suffer

The plight of the first responders to the World Trade Center disaster has been objectively corroborated by a recent study published in the New England Journal of Medicine.

"Conclusion: Exposure to World Trade Center dust led to large declines in FEV1 for FDNY rescue workers during the first year. Overall, these declines were persistent, without recovery over the next 6 years, leaving a substantial proportion of workerswith abnormal lung function."

The attack on the World Trade Center (WTC) on September 11, 2001, when terrorists crashed two hijacked planes into both towers of the WTC, resulted in the deaths of 2,751 people on that day. The crashes created massive combustion, fueled by jet fuel, that resulted in a huge release of of contaminants including: asbestos, pulverized concrete, lead and other toxins. It is estimated that over 90,000 individuals were involved in the massive clean-up efforts that went on for months following the horrific event. Thousands of New York City residents, schoolchildren and commuters were also exposed.


Click here to read more about 911 WTC claims.

NJ Appellate Court Upholds $30.3 Million Mesothelioma Verdict

In an unpublished decision a NJ Court of Appeals upheld a $30.3 Million verdict in an asbestos case where the worker was exposed to asbestos fiber during summer employment during his youth. The court held that the standard of causation in a mesothelioma case permitted recovery where there was infrequent exposure to a small amount of fiber.

History

"Mark Buttitta was born in December 1952. He worked as a “parts picker” at the GM distribution warehouses in Edgewater and Englewood during the summers of 1971 to 1973, and during his winter breaks while matriculating at Colgate University. As a summer employee, Mark was also responsible for sweeping the warehouse floor at the end of the shift. Mark worked with his father, who had been employed by GM since the 1940’s. During the summer of 1971, Mark also worked with Frank Buttitta, Jr. (Frank, Jr.), his brother. 

"In his de bene esse deposition, played for the jury at trial, Mark testified that as a “parts picker,” he, along with fifty to seventy-five other employees, were responsible for filling orders for parts submitted to GM by automobile dealers. The picker would retrieve parts from open racks or bins located at various locations within the “very busy” warehouse and place them in a cart. Some parts were packaged in boxes and some were stored loose on shelves. If the parts were packaged in a box, the parts picker would open the box, check to make sure it contained the correct parts and the required quantity, and then either remove the part or reseal the box for transport to the shipping area. Brakes were packaged in boxes containing four units; to fill an order, a parts picker would often retrieve one set of brakes from a box. 

"Mark said that, on some days, he would pick as many as fifty brake shoes or pads and twenty-five clutch pads or assemblies. Frank Ripley (Ripley), who had worked with Frank, Jr. and Mark at the GM warehouse, confirmed that brakes and clutches, which then contained asbestos, were the most common products picked at the warehouse. 

"Mark, Frank, Jr., and Ripley described the warehouse as being very dusty, with thick layers of dust on the shelves, boxes, and automotive parts, which became airborne when disturbed. The air was “stagnant” and there was visible dust “in the air.” The warehouse had no windows and ventilation was poor. Mark wore street clothes to work; masks and respirators were not provided. He often returned home from work “covered with dust”; Frank said he came home covered in a “gray kind of dirt”; Ripley said that after a day working in the warehouse “you’d blow your nose in a handkerchief and you know there would be dust.” Mark did not see any warnings on the boxes. 

The frequency, regularity and proximity test

"The frequency, regularity and proximity test “’is not a rigid test with an absolute threshold level necessary to support a jury verdict.’” James, supra, 155 N.J. at 302 (quoting Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir. 1992)). “The phraseology should not supply ‘catch words’ [and] the underlying concept should not be lost.” Sholtis, supra, 238 N.J. Super. at 29. Tailoring causation to the facts and circumstances of the case, “[t]he frequency and regularity prongs become less cumbersome when dealing with cases involving diseases, like mesothelioma, which can develop after only minor exposures to asbestos fibers.” Tragarz, supra, 980 F. 2d at 420. Thus, exposure in this case must be considered in relation to the uncontradicted expert testimony establishing that mesothelioma is associated with the “smallest exposure” to asbestos and can develop from the cumulative effects of minimal and infrequent exposure. 

"Here, with regard to the frequency of exposure requirement, Mark worked for three summers and during his winter breaks at the GM warehouse. He was also exposed through his contact with his father who worked at GM. That rather brief work history must be considered in light of the nature of mesothelioma and the experts’ testimony that the disease can be contracted after infrequent exposure to asbestos. This was sufficient to establish the frequency of exposure. See Rotondo v. Keene Corp., 956 F.2d 436, 442 (3d Cir. 1992) (holding that plaintiff, who developed mesothelioma and had worked several months one summer in close proximity to asbestos, satisfied frequency, regularity, and proximity test). 

"Plaintiff presented sufficient evidence to establish that Mark regularly worked in close proximity to asbestos-containing clutches, including those manufactured by Borg-Warner, to permit the issue of causation to go to the jury.

Buttitta v Allied Signal, Inc. et al., DOCKET NO. A-5263-07T1 A-5268-07T1 (NJ App Div) 

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Libby Care Launches - Center for Asbestos Related Disease Ground Breaking

The recent health care reform legislation provided for the Libby Care which will provide universal medical care for victims of asbestos related disease. The plan is a pilot program for occupational disease medical care fully funded under the Medicare program.


This week Senator Max Baucus, instrumental in crafting and enacting he program, participated in the ground breaking for ceremony for the expansion of the Center for Asbestos Related Disease (CARD).

“Today was a great day for CARD and the people of Libby,” Baucus said at the groundbreaking. “We’re all in this together, and it’s really through team work that we’re able to get this expansion done. It’s also great day because now the people of Libby will get the health care they need and deserve.”

Baucus said that the EPA designation, along with the new legislation, “has triggered over $300 million [in health aid for Libby] over the next 10 years. This is going to be bigger and better than the aid that was given to victims of 9/11.”

Click here to read more about Libby Care.

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National Asbestos Week: What is Asbestos and Why is it Bad for Our Health?

This week is National Asbestos Awareness Week. To commemorate this event the ADAO is holding its 6th International Asbestos Awareness Conference. The following is a cross-post from that event.

What is Asbestos and Why is it Bad for Our Health?
April 2nd

By Richard Lemen
PhD, MSPH, Assistant Surgeon General, USPHS (Ret.) & Rear Admiral (Ret.)

Asbestos is a commercial term referring to a group of naturally-occurring fibrous minerals. Asbestos has remarkable durability and resistance to heat, properties conferring value in a wide range of products including building and pipe insulation, friction products including brake shoes, and fire-resistant bricks. Asbestos has been woven into fireproof cloth and incorporated into cement pipes used for water transport and into erosion-resistant cement roofing tiles. Unfortunately, asbestos fibers are also inhalable, and once inhaled, cause grave health risk, apparently because of their physical characteristics and bio-persistence in the body. Asbestos exposure causes a wide range of serious and fatal health conditions including pleural changes (plaques, thickening, breathlessness, loss of lung function), asbestosis (scarring of the lungs), cor-pulmonale (right sided heart enlargement and then failure), lung cancer, mesothelioma (cancer of the linings of the lung or abdomen), laryngeal cancer, gastro-intestinal cancers (including stomach, colon, rectal), ovarian cancer, and is suspected of causing kidney cancers.  All asbestos fiber types have been found to cause all major types of asbestos-related disease, including chrysotile, the most commonly used form of asbestos. In reality, most asbestos use involves either intentional mixing of different fiber types or inadvertent contamination of a fairly pure product with small quantities of another (natural contamination). Today world production of asbestos is highest from Brazil, Canada, China, Kazakhstan, Russia, and Zimbabwe. Vast amounts of asbestos are still used in many developing countries where exposure is not limited to just workers, by also non-occupational groups including children. For these reasons and because scientists have not been able to determine a safe level of exposure to asbestos most industrial countries have banned its use. However, this has not been true for Canada or the United States where products can still contain asbestos.*Dr. Lemen is the Retired Assistant Surgeon General who has recently been appointed by President Obama to the Presidential Advisory Board on Radiation and Worker Health. He will present at ADAO’s 6th International Asbestos Awareness Conferenceon April 10th. Click here to read more about asbestos and workers' compensation. Click here to read about asbestos litigation.

U.S. Sues Kellogg, Brown & Root for Alleged False Claims Act Violations Over Improper Costs for Private Security in Iraq

The United States has filed a lawsuit against Kellogg Brown & Root Services (KBR) alleging that the defense contractor violated the False Claims Act, the Justice Department announced today. The suit, filed in U.S. District Court in Washington, alleges that KBR knowingly included impermissible costs for private armed security in billings to the Army under the Logistics Civil Augmentation Program (LOGCAP) III contract. The LOGCAP III contract provides for civilian contractor logistical support, such as food services, transportation, laundry and mail, for military operations in Iraq.

The government’s lawsuit alleges that some 33 KBR subcontractors, as well as the company itself, used private armed security at various times during the 2003-2006 time period. KBR allegedly violated the LOGCAP III contract by failing to obtain Army authorization for arming subcontractors and by allowing the use of private security contractors who were not registered with the Iraqi Ministry of the Interior. The subcontractors using private security are alleged to have also violated subcontract terms requiring travel only in military convoys. The government’s lawsuit further alleges that at the time, KBR managers considered the use of private security unacceptable and were concerned that the Army would disallow any costs for such services. KBR nonetheless charged the United States for the costs of the unauthorized services.

“Defense contractors cannot ignore their contractual obligations to the military and pass along improper charges to the United States,” said Tony West, Assistant Attorney General for the Civil Division of the Department of Justice. “We are committed to ensuring that the Department of Defense’s rules are enforced and that funds so vital to the war effort are not misused.”

This case is being brought as part of a National Procurement Fraud Initiative. In October 2006, the Deputy Attorney General announced the formation of a National Procurement Fraud Task Force designed to promote the early detection, identification, prevention and prosecution of procurement fraud associated with the increase in government contracting activity for national security and other government programs. The Procurement Fraud Task Force is chaired by the Assistant Attorney General for the Criminal Division and includes the Civil Division, U.S. Attorneys’ Offices, the FBI, the U.S. Inspectors General community, and a number of other federal law enforcement agencies.

Along with the Justice Department’s Civil Division, the Defense Criminal Investigative Service, Army Criminal Investigation Division and FBI participated in the investigation of this matter. This case, as well as others brought by members of the task force, demonstrates the Department of Justice’s commitment to helping ensure the integrity of the government procurement process.

Click here to read more about burn pit exposures in Iraq and Afghanistan

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Positive Pathological Findings in the Lungs of World Trade Center Patients

The forensic pathological skills of the Mt. Sinai Medical Center (MSMC) in New York have yet again revealed the mysteries of an occupational exposure. MSMC was the medical laboratory of Irving J. Selikoff and sentinel studies on asbestos related disease attributing exposure to asbestosis, lung cancer and mesothelioms.

MSMC took the early initiative in medically investigating the World Trade Center (WTC) first responders. Following up on the 2001 event MSMC had conducted pathologic evaluations of WTC dust present in lung tissue of a sampling of the lose exposed to WTC dust. It is estimated that between 60,000 to 70,000 responders have been exposed.

"We found that three of the seven responders had severe or moderate restrictive disease clinically. Histopathology showed interstitial lung disease consistent with small airways disease, bronchiolocentric parenchymal disease, and nonnecrotizing granulomatous condition. Tissue mineralogic analyses showed variable amounts of sheets of aluminum and magnesium silicates, chrysotile asbestos, calcium phosphate, and calcium sulfate. Small shards of glass containing mostly silica and magnesium were also found. Carbon nanotubes (CNT) of various sizes and lengths were noted. CNT were also identified in four of seven WTC dust samples."

Click here to read more about the WTC exposures and workers' compensation.

Bio-Tech Worker Awarded $1.37 Million in Suit Against Pfizer

A former bio-technical scientist of Pfizer was awarded $1.37 Million dollars as a result of being infected by an experimental virus in the company's laboratories. After a 3 week trial, the award was entered in what is  considered to be the first successful employee claims in the biotech and nanotech industry.

While the intentional tort claim was dismissed by the Judge  and injured worker proceeded under the theory that the company, Pfizer, violated whistleblower laws. The plaintiff also alleged that The Occupational Safety and Health Administration failed to thoroughly investigate the matter and take action.

Click here for  a detailed analysis of the case "Prescription for Bioterrorism by Steve Zeltzer.


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