2/27/2010
Joe Satterley
jsatterley@stwlaw.com
502-814-5548
(1) Premises, (2) Friction/brake
lining, (3) non-malignancy filings, (4)
new plaintiffs/defendants
Premises Liability
TORTS SECOND 343
Liability for Condition and Use of Land
Restatement 2d of Torts, § 343
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if, but only
if, he
• (a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
• (b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
• (c) fails to exercise reasonable care to protect them against
the danger.
• TORTS SECOND 371
• Restatement of the Law, Second, Torts
• Copyright (c) 1965, The American Law Institute
• Title B - Liability for Activities Carried on Upon the Land
• Restat 2d of Torts, § 371
• § 371 Possessor's Activities
• A possessor of land is subject to liability for physical harm to
others outside of the land caused by an activity carried on by him
thereon which he realizes or should realize will involve an
unreasonable risk of physical harm to them under the same
conditions as though the activity were carried on at a neutral
place.
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Conduct of the Premise Owner
Actual Knowledge
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Ways to prove the case against the
Premise Owner
Industrial Hygiene testimony
A Study of Lung Cancer Mortality in Asbestos Workers:
Header Goes Here
Doll, 1955
1999 Morris Greenberg
Between 1935 and 1953, a series of
publications appeared in England, Germany
and America reporting cases of lung cancer
196
amongst asbestos workers. As early as 1943,
the German scientific consensus was that the
evidence was strong enough to deem the
association to be causal.
[Doll, 1955a]. Doll’s conclusions confirmed
informed opinion of the views that had
increasingly been expressed over the past 20
years, that asbestos exposure caused lung
cancer.
State of the Art 99
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1955 Accident Prevention Manual
Header Goes Here
National Safety Council
Asbestos
Inhalation of excessive quantities of
asbestos fiber can produce a fibrosis in
167 the lungs similar to that found in
silicosis but somewhat milder and
usually not so rapidly progressive. Like
silicosis, the condition develops slowly
and advances slowly and is equally
resistant to treatment.
Prevention is essentially dust control. A
maximum dust concentration of 5
million particles per cubic foot has
been suggested, precisely 25 for pure
free silica.
State of the Art 10
10
Header Goes In Asbestosis
Peritoneal TumoursHere
British Journal of
Industrial Medicine
Jan. 4, 1963 J.B. Enticknap and W.J Smither
British Journal of Industrial Medicine, 1964, 21, 20
In North America primary peritoneal tumours have
been reported by Cartier (personal communication)
and by Mancuso (Mancuso and Coulter, 1963 and
personal communication) in workers exposed to
20 chrysotile. So far there have been no cases reported
where the exposure was only to amosite: Cowing
(personal communication), in a report not yet
published, has found no cases in his experience of
workers exposed for many years solely to amosite in
South Africa.
It cannot be too strongly emphasized that the
amount of exposure to asbestos was often small.
None of the cases was severely affected by
pulmonary asbestosis.
State of the Art 11
Primary Malignant Mesothelioma of the Pleura
Header Goes Here
Nov. 1960 H.B. Eisenstadt, M.D. and F.W. Wilson, M.D.
Case 2. A 58-year-old oil refinery
foreman who had worked with
207
asbestos insulating material for
quite a while ...
State of the Art 12
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Primary Malignant Mesothelioma of the Pleura
Header Goes Here
Nov. 1960 H.B. Eisenstadt, M.D. and F.W. Wilson, M.D.
Our second case is particularly interesting
because of the history of long-time exposure to
208
asbestos and the discovery of asbestos bodies in
the lung biopsy specimen. The etiologic
association of asbestos and malignant
mesothelioma has been repeatedly discussed in
the literature.
The authors wish to express their appreciation
to Dr. John H. Childers, Department of Pathology,
Medical Branch, University of Texas, Galveston.
State of the Art 13
Asbestos Disease in Maintenance Workers of the
Header Goes Here
Chemical Industry
March 16, 1965 Irving J. Selikoff
Environmental Sciences Laboratory
Department of Community Medicine
Mount Sinai School of Medicine
The City University of New York
New York, New York 10029
41
Clinical field examinations of several large groups of workers in various plants of the chemical
industry, undertaken by our laboratory during the past few years, have revealed the
frequency of chest x-ray abnormalities (small irregular opacities and/or pleural changes) of
the type known to be induced by dust exposure.
Twenty-six cases of mesothelioma had been observed over a period of 4 years (1967-71).
…The only female patient had not experienced any occupational exposure to asbestos, but
she was the wife of a worker at the Leuna plant. Only 16 patients had experienced direct
occupational exposure to asbestos, while nine patients had been subjected to indirect
exposure (working in areas where asbestos was occasionally handled by other workers); in
one case, there was a history of only household exposure.
… asbestos exposure was consequently a consideration for all workers, not only for those
installing new insulation or removing old material. Maintenance work was thought to involve
a special risk.
Asbestos
Asbestos Disease in Maintenance Workers of the
Header Goes Here
Chemical Industry
March 16, 1965 Irving J. Selikoff
Parenchymal changes, total
1/0-1/2
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Asbestos
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Asbestos Bodies in BAL
Header Goes Here
1997 De Vuyst et al.
Diagnosis
Asbestosis, diffuse pleural thickening, pleural
plaques, benign pleural effusion, and peritoneal
115
mesothelioma after a single, short but intense
exposure.
…all these diseases, including lung fibrosis, can
occur after a short but intense exposure, providing
that the fibers are bio-persistent.
…it appears that environmental as well as very short
exposures are not synonymous with low-dose
exposures, and thus with low risk for developing
disease.
Asbestos
Mesothelioma Following Exposure to Asbestos :
Header Goes Here
A Review of 72 Cases
Maxwekk Borow, M.D. F.C.C.P.; Alfred Conston, M.D.; Lawerence Livorvese, M.S., F.C.C.P.; and Norbert Schalet,
1973 M.D.
Chest, Vol. 64, No. 5, November, 1973
In 1957, Wagner et al reported the first large series of
patients with mesothelioma from the Cape of Good Hope
198
asbestos fields in South Africa.
In this country, Selikoff et al studied 307 consecutive
deaths among asbestos installation workers and found 10
deaths caused by mesothelioma. In addition, they noted a
high death rate attributed to other malignancies,
particularly of the gastrointestinal tract. In 1967, our
group reported 17 patients with mesothelioma, of which
nine cases were pleural and the remainder, peritoneal.
... we can expect to see increasing numbers of patients
with mesothelioma for the next 20 to 30 years.
State of the Art 17
Asbestos Disease in the United States
Header Goes Here
1976 Irving J. Selikoff
The author recalls the important stages of the
history of asbestos between 1918 and 1975 in
the United States.
148 ... brief, intense exposure to asbestos can be as
dangerous as prolonged contact.
Urgent action must be taken.
The first medical reference to disease among
asbestos workers may be found . . . in 1918. . . .
insurance company records showed increased
mortality among asbestos workers and
commented that these companies were
reluctant to insure such workers.
*Rev. fr. Mal. Respon., Supplément 1 au Tome 4, 1976, 7024
State of the Art 18
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Header of Asbestos-Related Diseases
Epidemiology Goes Here
Feb. 1980 R.A. Lemen
Household contact with asbestos is
7
associated with an increased
mesothelioma risk. Anderson, et al.
Cases of mesotheliomas have also
occurred in non-occupationally
exposed individuals living in the
neighborhood of industrial sources of
asbestos (36).
Mesothelioma
Household-Contact Asbestos Neoplastic Risk
Header Goes Here
Feb. 6, 1986 Irving J. Selikoff
In 1964, Newhouse et al. reported nine
130of mesothelioma in family
cases
contacts of asbestos workers and
eleven cases among individuals whose
only identified asbestos exposure was
associated with living within one-half
mile of an asbestos factory.
...household asbestos contact has been
established as being potentially
hazardous.
State of the Art 20
Friction Products
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Knowledge that asbestos was
potentially harmful!
Why not do research and test in the 1940’s?
Dr. Irving J. Selikoff
Rohl - 1976
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Relation Between Exposure to Asbestos
Header Goes Here
and Mesothelioma
March 16, 1965 Irving J. Selikoff, M.D.; Jacob Churg, M.D.; and E. Cuyler Hammond, Sc.D.
…it would demonstrate that this
tumor was another neoplastic hazard
of asbestos exposure in general and
37
not limited to one area or to one type
of fiber.
Fiber Types
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Dr. Mark Roberts
• Told you his analysis of the literature.
• Admitted that many articles don’t really conclude
that brakes do not cause mesothelioma.
• His power point went through a lot of stuff that had
nothing to do with asbestos to try to puff up his
credentials.
• They did not even move in his resume – because it
says nothing about asbestos – not really an expert on
asbestos.
• No publications on asbestos or brake exposures!
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• This was preventable disease.
• If companies that made and sold asbestos
products – did not make and sale those
products - this disease would not occur.
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No safe level of exposure to asbestos for
human that has been identified
Roggli article – Australian Registry
Dr. Richard Lemen - NIOSH
• Epidemiologist – former Assistant Surgeon
General of the United States.
• Dr. Lemen identified 154 mesothelioma cases
involving brake mechanics.
• Dr. Hammer found 10.
• Australian Registry identifies 70
• Defense expert, Roggli has seen 24 cases of
alleged exposure to brake dust and
Mesothelioma, but always concludes no
causation.
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Brent Finley – work for Corporations
• Dioxin
• Chromium 6 ( Anderson v. PG&E)
• Groundwater contamination
• Pathogen from Sewer Outfall
• Lead in Soil
• Benzene
• Chlorinated Solvents
• Trichlorethylene
Finley -Never testified for an injured
person
• Testified for Ford, GM & Chrysler
• Consulted with Borg Warner
• Consulted with B&B installation
• Consulted with Lincoln Electric Company
• Consulted with Lockheed Martin
• Consulted with Turco Corporation
• Consulted with Conde Vista
• Consulted with Union Pacific
What did Roberts & Finley tell you?
It did not matter how many brake mechanics or their
family members died from asbestos – unless their was
some Epidemiology study – no problem.
How do they come to this flawed conclusion when the
very type of worker and spouses die from
Mesothelioma ?
They re-analyze an article to tell you the article says
something that it doesn’t say.
Roberts admitted that many of those articles don’t say
“brake don’t cause mesothelioma”
The ones that say that are the ones paid for by them to
come to that conclusion to help them in litigation.
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52 renown scientists disagree with
with Roberts and Finley!
• International Journal of Occupational and
Environmental Health
by Dr. Laura Welch and more than 50 other
scientists.
Non-Malignancy Filings
• Due to the large number of Mesothelioma
cases the number of non-malignant cases
filed by many Plaintiff’s counsel has reduced.
• Due to the concept of Dose and the fact that
larger doses are needed to cause asbestosis,
we see fewer cases.
• However, we are seeing more Mesothelioma
cases.
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New Defendants
• Premise Owners
• Distributors of asbestos products
• Equipment manufacturers – external
insulation
• Talc manufacturers – RT Vanderbilt &
International talc
Products with Talc
Products with Talc
In 1976 Georgia Pacific is selling “ASBESTOS FREE” Joint Compound
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Products with Talc
Products with Talc
12% Chrysotile
Trace amounts of
ASBESTIFORM
Anthophyllite & Tremolite
Mouldene® Talc – International
Talc (RTV)
Products with Talc
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Products with Talc
Products with Talc
Products with Talc
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Products with Talc
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