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					MEALEY’S™ LITIGATION REPORT

Asbestos
    A Response To Alani Golanski
    And Jerry Kristal’s Reply


    by
    James K. Toohey, Esq.



    Johnson & Bell
    Chicago, Illinois




                                    A commentary article
                                       reprinted from the
                               February 16, 2011 issue of
                               Mealey’s Litigation Report:
                                                 Asbestos
MEALEY’S LITIGATION REPORT: Asbestos                                                  Vol. 26, #2 February 16, 2011




Commentary


A Response To Alani Golanski And Jerry Kristal’s Reply
By
James K. Toohey




[Editor’s Note: James K. Toohey is a sharehold and           non-asbestos-containing products for the dangers
co-chair of the toxic tort defense group at Johnson &        associated with asbestos-containing components or
Bell in Chicago, Ill. Copyright # 2011 by James K.           replacement parts manufactured, sold, and distributed
Toohey. Responses are welcome.]                              by other entities.’’5

In our Commentary, Liability For The Post-Sale Instal-       Let us look then at these ‘‘recycled myths’’ and see if,
lation Of Asbestos-Containing Replacement Parts Or           in fact, they have been ‘‘hissed off the stage.’’
Insulation,1 we attempted to review objectively an
important nationwide trend in the case law relating          Chrysotile. Respondents’ sole cited support for the
to the duty of manufacturers of safe products to warn        proposition that there is no difference between the
of risks created by products they did not make, specify      potency of chrysotile and amphibole fibers in causing
or sell.                                                     mesothelioma is a statement made by Dr. Irving
                                                             Selikoff in 1972. It is now 2010, and ‘‘[s]cience
Messrs. Golanski and Kristal (respondents) submitted         deals in provisional truths.’’6 The science involving
a seven-page reply,2 that is an ad hominem attack on         asbestos and disease has evolved, and earlier pro-
the messengers rather than the message — pointedly           visional truths have been established or rejected.
contentious from a plaintiffs’ attorney’s perspective.3      Dr. Selikoff is universally renowned for his efforts in
Referring to us 26 times by name inside five pages of         focusing public attention on the hazards of asbestos
text, respondents hardly mention the hundred or so           through his work with asbestos union insulators in
cases we cite. Instead, they dismiss the nationwide          the 1960s and 1970s. During that time, he published
trend in the case law and related arguments concern-         many seminal studies involving exposure and disease
ing chrysotile and low dose exposures as recycled            among career insulators. He organized scientific confer-
myths ‘‘that have long been hissed off the stage.’’4         ences. He established the Mt. Sinai Environmental
To the contrary, the objective scientific evidence            Sciences Laboratory. He also teamed with scientists,
that chrysotile is not comparably hazardous to asbesti-      industries, unions, and governments to reduce exposure
form amphibole fibers and that dose matters is so             levels.7 He, too, dealt with ‘‘provisional truths.’’
compelling as to be beyond serious scientific dispute.
The nationwide trend against liability for products of       There was concern about mesothelioma and uncer-
others is equally real. As the Delaware courts noted         tainty as to its cause since the 1960s when it was first
recently, ‘‘[c]ontrary to Plaintiffs’ position, it appears   associated with exposure to crocidolite in the area of
that the majority of courts to address the issue have        South African mines. By the mid-1960s international
refused to impose liability upon manufacturers of            conference co-chaired by Selikoff, crocidolite was


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established as a cause of mesothelioma; however,              mesothelioma, stated within a 95% confidence inter-
Selikoff observed that union insulators were contract-        val, is between zero and 1/200th of the risk posed by
ing mesothelioma despite having worked only with              amosite or crocidolite.19
amosite and chrysotile asbestos.8 In the publication
of papers presented at that conference, the UICC              In fact, even plaintiffs’ most zealous testifying expert
addressed the subject and recommended epidemiolo-             witnesses agree that chrysotile creates a lower risk of
gic studies of pure amosite and pure chrysotile.9             mesothelioma than do amphibole fiber types. Some
                                                              dispute only the extent of the difference while others
It was Selikoff himself who subsequently published            dispute only whether chrysotile can be a co-cause at
three papers demonstrating high rates of mesothe-             lower exposures.20
lioma among workers at a manufacturing plant that
used only amosite.10                                          Low Dose Chrysotile. Plaintiffs’ testifying experts readily
                                                              concede that it is the dose that creates the risk.21 While
Neither he nor anyone else has published studies              they correctly note that there is no scientifically estab-
establishing high levels of mesothelioma at chrysotile        lished threshold dose below which mesothelioma (or
plants, mines, or mills, although there has been con-         any cancer) will not occur, they concede that there is
troversy over the cause of 33 mesothelioma cases in           no epidemiologic evidence that mesothelioma can be
Quebec among miners and millers.11                            caused by an extremely low dose.22 They rely on the
                                                              absence of any such scientific evidence one way or
By the 1980s, Dr. Selikoff’s influence among regulators        another as ‘‘the scientific support’’ for the proposition
calling for the abolition of any mining, milling, use or      that every exposure, chrysotile or amphibole, is a cause
export of any asbestos fiber in any product was evident,       of every asbestos-related disease.23 This conclusion is
and his view on chrysotile and the politicization of the      contrary to virtually everything known about human
science on that subject had become controversial.12           tolerance and defense mechanisms,24 as well as about
Scientific studies were being published during that            fiber retention as related to mesothelioma. Instead of
time offering evidence that different fiber types and          scientific evidence as support for medical causation
fiber sizes posed significantly different risks, particularly   based on a ‘‘no threshold’’ hypothesis, they cite a
relating to mesothelioma. Such studies interfered with        1986 risk assessment dose-disease modeling prepared
abolitionist goals. The percolating divide in the scien-      for the EPA by Dr. William Nicholson, director of
tific community ruptured into a public controversy             Mt. Sinai’s Environmental Sciences Laboratory.
when Selikoff organized the ‘‘Third Wave’’ conference         Because there is no established lower threshold dose
in 1990, to which judges hearing asbestos cases around        for malignancies, Nicholson built into his model an
the country were invited and attended,13 but from             assumed no threshold — an entirely appropriate
which opposing views were excluded or relegated to            assumption for a regulatory purpose, but invalid as
the sidelines.14                                              proof of medical causation. Using a series of epidemiol-
                                                              ogy studies of groups with high exposure doses and
The debate has continued. Serious scientists continue to      relatively high rates of mesothelioma, he simply drew
publish studies showing little or no mesothelioma inci-       a straight line on a graph from the cluster of studies of
dence at chrysotile-only plants and mines, but high           high dose groups showing the relationship of cases to
levels at amphibole-only plants and mines.15 Studies          exposure dose to the graph’s zero point for dose and
of some chrysotile-only plants or mines found no              rate with no scientific information justifying this linear
cases, some found a few (but with evidence of the pre-        model.25 Aside from the fact that Nicholson’s 1986
sence of amphiboles as well).16 Based on a meta-analysis      EPA Risk Model is for regulatory purposes only, and
of all of the studies worldwide, renowned British epi-        no proof at all of medical causation, it has been reeval-
demiologists with no known involvement in asbestos            uated as a risk model and found wanting for its failure
litigation calculated that chrysotile is 100-500 times less   to account for fiber size and fiber type differences.26
productive of mesothelioma than the commercial
amphiboles, amosite and crocidolite.17 Berman and             In November of 1983, Dr. Nicholson himself
Crump, who originally conducting a review of the              addressed the issue of a low dose exposure in a specific
issue for the EPA,18 concluded that the risk of               circumstance. He reviewed and vouched for the


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MEALEY’S LITIGATION REPORT: Asbestos                                                    Vol. 26, #2 February 16, 2011



reliability of a gasket replacement study showing expo-      need for epidemiological evidence to support causation,
sure levels of 0.02 f/cc. He noted in his affidavit that      plaintiffs’ experts generally look to the Helsinki Proto-
such exposures were 100 times lower than the 2.0 f/cc        col, a set of criteria on medical causation created by
OSHA PEL, which was then in effect. In a letter              consensus at a conference that included scientists who
accompanying the affidavit, he stated that the gasket         regularly testify for plaintiffs in asbestos litigation. That
exposures were 1,000 times lower than the time-              protocol states that exposure to asbestos in the ambient
weighted exposures he had calculated for insulators          air is insufficient to establish causation of mesothelioma.
who worked only part of the time mixing cements              That represents scientific recognition of a lower thresh-
and cutting block and pipe insulation, an exposure           old dose below which a mesothelioma in a particular
group included in his 1986 EPA risk model. Nicholson         case cannot be held to have been caused by asbestos
attested that persons exposed at this 0.02 f/cc had a        exposure.35 The regulatory threshold based on the cur-
non-existent risk of non-malignant disease and a risk        rent OSHA PEL is 0.1 f/cc for a 40-year work-life, or
of asbestos-related cancer that was ‘‘miniscule.’’ He con-   4.0 f/cc. In most litigated cases, the alleged exposures to
cluded that such work created no discernible disability
                                                             asbestos released from gaskets or friction materials of the
for those directly or indirectly exposed during such
                                                             individual defendant will be a fraction of the person’s
work.27
                                                             lifetime ambient air dose of asbestos. Even in the most
                                                             extreme case, if a person’s asbestos exposure was from
Exposures during brake repair work are similarly min-
                                                             replacing gaskets every day for 40 years, his total lifetime
ute, found to average between 0.03-0.04 f/cc per brake
change.28 Nicholson and his Mt. Sinai team were              exposure dose would be only 20% that permitted by
funded by NIOSH to study the brake repair workers            OSHA. If he changed a set of brakes every day for
for evidence that they may be at risk of non-malignant       40 years, his lifetime dose would be 30% to 40% of
disease. They found no evidence of any impairment            the dose allowed by OSHA.
caused by such work.29 This study answered the ques-
tion posed by Lorimer in his published 1976 article          Public Policy Statements. Respondents cite calls by var-
in the negative, but its Mt. Sinai authors never pub-        ious organizations for a blanket ban of the use of all
lished in any scientific journal. Instead, they simply filed   types of asbestos fiber, including the export of asbestos
it under a government NTIS number.30                         cement pipe to underdeveloped countries, in support of
                                                             their claim that chrysotile causes all asbestos-related
Epidemiology. Plaintiffs’ experts agree that epidemi-        diseases. Yet these absolutists have never responded
ology is necessary to establish causal connection            cogently to the statement made to the EPA in 1986
between exposures and disease outcomes.31 Brake              by Dr. Arthur Langer, an original member of the
repair mechanics represent a large group, estimated          Mt. Sinai Environmental Sciences Laboratory. Langer
by Lorimer at 900,000 men.32 They worked with                made two points: 1) it was folly to ban uses of asbestos
chrysotile-only friction materials, and their exposure       in low-dose, low-risk products, such as friction products
doses were very low.33 This is the ideal group to study      and gaskets, before replacement materials had been pro-
for the effect of low dose chrysotile exposure as a          ven safe and functionally reliable; and 2) it was poor
possible cause of mesothelioma. Nineteen different           public health policy to ban the export of low cost
epidemiologic studies have been reported from a              chrysotile-based cement water pipe to underdeveloped
diverse group of investigators with diverse funding          countries based on a projected risk of one cancer in
sources from almost every industrialized country.            100,000 people that might occur 20 to 55 years later
Three meta-analyses have been performed to assemble          when the consequence of the ban would be to deprive
these studies and to gather data to establish a high         large populations the transport of clean water for drink-
degree of confidence in the results. Each and every           ing and sanitation, leaving hundreds of thousands of
study, viewed either individually or collectively, has       persons to face imminent disease and death from
shown that those performing brake repair work are at         water-born illnesses.36 Moreover, the United States
no increased risk of mesothelioma.34                         and its health agencies still permit use of gaskets and
                                                             friction products that give off levels of asbestos so tiny
Lower Threshold Exposure Below Which Mesothelioma            that they can be used in conformance with the current
Will Not Be Induced. Rather than simply accepting the        protective TWA standard of 0.1 f/cc.


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Vol. 26, #2 February 16, 2011                                                  MEALEY’S LITIGATION REPORT: Asbestos



The respondents’ sole authority for the proposition that        boiler, and other non-asbestos product manufacturers
fiber distinction is not an accepted legal defense on            face this precise circumstance. Given respondents’
causation is an unpublished 2004 Western Pennsylva-             emphasis on New York cases, including Berkowitz,49
nia trial court ruling. Contrary to their claim, the            that ignore the directive of their high court decision
chrysotile defense is alive and well. Recently, in Smith v.     in Rastelli, we provide the Rastelli court’s entire discus-
Kelly-Moore,37 the court entered judgment for the               sion of the issue in the footnote below.50
defendant as a matter of law based on the plaintiff’s
failure to establish that the plaintiff’s chrysotile exposure   In addition, not all New York trial courts have found
was sufficient to cause mesothelioma, given that studies         Berkowitz dispositive. In Kosowski v. Crane Co.,51 the
relied on by the plaintiff’s causation expert showed that       court entered summary judgment for the defendant
amphiboles are significantly more potent. This defense           based on the record in that case because, while Crane
is routinely asserted in virtually every trial of an asbes-     Co. knew that its pumps could be used with external
tos-related injury in which the only asbestos in                asbestos insulation, it had no specific knowledge of
defendant’s product was chrysotile, frequently in con-          the type of asbestos that would be used on the cranes
junction with other defenses on causation, including            located where the plaintiff worked. The Kosowski
product identification and dose.                                 court did not cite Rastelli, but cited and distinguished
                                                                Berkowitz in reaching its decision.
Legal issues raised by respondents. In the second half of
their Reply, respondents purport to refute our legal            By implication, the Berkowitz court and respondents
analysis. Our Commentary surveyed cases in jurisdic-            suggest that imposing a duty to warn on a supplier of
tions across the country, noting the new momentum               non-asbestos products would be effective in protect-
generated by two Washington Supreme Court cases,                ing workers against harmful exposures to that later-
Braaten38 and Simonetta,39 and the likely significance           added asbestos insulation. In so arguing, respondents
of the pending case before the California Supreme               use their best factual case, one brought against man-
Court on review of four California appellate decisions.40       ufacturers of large turbines. Such a defendant would
Respondents, showing a ‘‘New York State of Mind,’’41            have had actual knowledge that its turbines, built for
devote their attention almost exclusively to discussion of      use in large electrical power plants, would be covered
New York law. They take particular umbrage at the               with asbestos insulation. Typically, the utility com-
Commentary’s critical analysis of the New York Appel-           pany hires a sophisticated consulting engineering firm
late Division cases42 that ignore apposite New York             that writes specifications for all of the equipment to be
Court of Appeals cases, Rastelli v. Goodyear Tire &             installed in the plant, including multi-storied boilers
Rubber Company43 and Holdampf v. Port Authority.44              and turbines and the insulation required to cover
                                                                both. The contract to build the plant with those spe-
Berkowitz and duty to warn. Respondents argue that              cifications is subject to bidding by sophisticated
Berkowitz45 is the correct legal standard - that a              general contractors, one of whom will get the job.
defendant ‘‘may have a duty to warn’’ if it knew its            The winning contractor will purchase the equipment,
non-asbestos product would be used with asbestos-               including insulation, either from the companies desig-
containing products. Berkowitz actually says, however,          nated in the specification or from those that can
that the duty ‘‘may exist,’’ because the manufacturer           provide products complying with the specifications.
knew that the Navy specified the use of asbestos to              It will hire an insulation subcontractor that will pur-
insulate its product.46                                         chase and install insulation that complies with the
                                                                specifications. The insulation contractor will hire
Respondents attempt to avoid the state’s high court             highly skilled and highly paid union insulators to
holding in Rastelli by suggesting that it was limited to        install the insulation. Each of those entities would
‘‘the circumstances of the case.’’47 In fact, the ‘‘circum-     have known at least as much as, and likely more
stances of the case’’ cited by the Rastelli court were:         than, sophisticated turbine manufacturers about the
‘‘when the first manufacturer produces a sound product           particular hazards of asbestos and the methods
which is compatible for use with a defective product of         through which those dangerous exposures best could
the other manufacturer,’’ that manufacturer has no duty         have been prevented.52 Each employer of any con-
to warn of hazards in the other product.48 Pump, valve,         struction worker involved in the construction of the


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MEALEY’S LITIGATION REPORT: Asbestos                                                 Vol. 26, #2 February 16, 2011



power plant, including the workers installing the insu-        your clothing, even to your family members!
lation, and the utility company whose employees use            If they do not employ good housekeeping
the end products, has a legal obligation to provide its        practices, the risk of cancer will be greater!
own workers with a safe work place and prevent expo-
sures to hazardous materials.                              Would that warning be reasonable in this commercial
                                                           context? There is no real possibility that the turbine
The general rule of product safety is: 1) design the       manufacturer would have been permitted by the con-
product to eliminate any potential hazard, 2) if that is   tractor to place any such warning at any location on
not feasible, include appropriate guards that will keep    the product where it would be conspicuous enough to
persons from contact with the hazards, and 3) if           be seen by all possibly affected persons. That is pre-
neither (1) nor (2) is feasible, place a warning on        cisely why foreseeability alone is not the determinant
the product that, if followed, will protect the user       of whether a duty to warn exists.53
against unreasonable risk of injury. The Restatement
of the Law, Torts, Third, Product Liability, § 2 essen-    What about manufacturers of smaller pumps, valves, or
tially tracks that design philosophy. It defines a          even automobiles, whose products created no risk at all
product as defective if it has a manufacturing defect,     at the time of sale?54 Fiber dose exposures even by repair
a design defect, or if a reasonable warning ‘‘could have   personnel were at levels: 1) 750-1,500 times lower than
reduced or avoided’’ a foreseeable risk posed by the       permitted by the pre-1968 TLVs, adopted as regula-
product, and such warning was not supplied (empha-         tions by most states and several federal agencies
sis added). Of course, the designer could have             including the U.S. Navy; 2) 125-250 times lower
eliminated the risk with a design that did not call        than OSHA’s 1972 standard, and 3) 50-100 times
for the use of asbestos, but the turbine manufacturer      lower than the 1976-1986 standard — by which time
had no control over that decision process — a critical     asbestos was being removed from most friction materi-
factor considered by Rastelli and ignored by Berkowitz.    als and sealants used in those products. Further,
With respect to the duty to warn, no foreseeable risk      chrysotile-only products posed a fiber-by-fiber risk
was posed by the turbine itself — another factor con-      100-500 times less than amphiboles. As Nicholson
sidered by Rastelli and ignored by Berkowitz.              himself noted in 1983, no regulatory agency had sought
                                                           to control such tiny exposures. OSHA itself required a
Even assuming the turbine manufacturer had a duty          specific asbestos warning — but only on products that
to warn of risks in another product, based solely on       might create exposures above the PELs and STELs.
knowledge of the risk, was it in a position to give
one? Where would the turbine manufacturer place            This fourth wave of asbestos litigation is without solid
a warning, given that it had no control of the facility    legal basis. Moreover, it is bad public policy. Those
and merely shipped a product for assembly at the           suffering from asbestos-caused diseases have remedies.
site? It would have to be placed on some major             There are now $25-30 billion in the bankruptcy trusts
piece of the turbine itself. The turbine, however,         established by bankrupt manufacturers of asbestos pro-
would be covered immediately after installation by         ducts, with more trusts predicted to come on line in the
the insulation. What could the warning say that            near future. Those trusts are organized and controlled
would be judged sufficient as a mater of law to             by plaintiffs’ asbestos lawyers, and the cumulative totals
avoid the case being submitted to the jury? Nothing        awarded to claimants are substantial.55 Why, then,
short of the following:                                    should the courts stretch liability to allow potential
                                                           double recoveries from companies that did not cause
    CANCER WARNING                                         the problem? Should they do so merely because those
    Based on decisions made by others, including           companies have survived since the 1950s as the last
    your employers, this product is about to be            remnants of the U.S. manufacturing industry? Must
    covered by asbestos insulation. If the insula-         they, too, run for bankruptcy cover, thereby jeopardiz-
    tors employ good housekeeping practices,               ing more jobs, pensions, and 401(k) savings of their
    asbestos fibers will be released and may                employees?56 Fortunately, the trend is away from
    cause cancer to you or, if carried home on             such liability.


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Vol. 26, #2 February 16, 2011                                                   MEALEY’S LITIGATION REPORT: Asbestos



                                                                        Trust, 424 F.3d 488 (6th Cir. 2005); Niemann v.
Endnotes                                                                McDonnell Douglas Corp., 721 F. Supp. 1019 (S.D.
                                                                        Ill. 1989); Taylor v. Elliott Turbomachinery Co., 90
1.   James K. Toohey and Rebecca L. Matthews, Liability                 Cal. Rptr. 3d 414 (Cal. Ct. App. 2009)). That court
     For The Post-Sale Installation Of Asbestos-Containing              ruled in another case that a boiler manufacturer is
     Replacement Parts Or Insulation, 25 Mealey’s Litigation            not liable for insulation on a boiler that the boiler
     Report: Asbestos 21, 40 (December 1, 2010).                        manufacturer did not supply. In re Asbestos Litigation
                                                                        Limited to: Hovermale, Hugh, CA No. 09C-12-275
2.   Alani Golanksi and Jerry Kristal, A Reply to James K.              ASB (January 20, 2011)(applying Virginia law).
     Toohey and Rebecca L. Matthews’ Commentary: Lia-
     bility for the Post-Sale Installation Of Asbestos-           6.    Richard Smith, The Trouble with Medical Journals
     Containing Parts Insulation, 25 Mealey’s Litigation                61 (Royal Society of Medicine Press 2006).
     Report: Asbestos 24, 18 (January 19, 2011).
                                                                  7.    In November of 1968, The International Union of
3.   Messrs. Kristal and Golanski practice at Weitz and                 Heat and Frost Insulators and Asbestos Workers’
     Luxenburg, a New York firm that since 1986 has                      Union announced in its monthly magazine, ASBES-
     specialized in asbestos and other toxic tort litigation            TOS WORKER, that the Union and Johns-Manville
     and is well known both for its successes and its ubi-              had formed a joint venture to conduct environmen-
     quitous advertising. Mr. Toohey and Ms. Matthews,                  tal studies regarding insulation work. The April issue
     co-authors of the original Commentary, practice at                 of that magazine included the first insert, Spring
     Johnson & Bell, Ltd., Chicago, representing defen-                 1969, called Mt. Sinai Environmental Sciences
     dants in asbestos and other toxic tort ligation.                   Laboratory Insulation Hygiene Progress Reports From
     A number of their clients sold machinery that                      the Insulation Industry Hygiene Research Program,
     required sealants and/or automobiles that required                 commonly called the Green Sheets, in which Dr.
     friction materials during periods in the past when                 Selikoff that announced the program under funding
     chrysotile asbestos was a material of choice in most               provided by the Asbestos Workers Union, Johns-
     friction materials and some sealants.                              Manville, and The Sprayed Mineral Fibers Manufac-
                                                                        turers Association. Starting in 1969, his Green Sheets
4.   Kristal and Golanski, supra note 2, at 18. Ad homi-                were directed to reducing exposure levels by inform-
     nem attack and ‘‘hissing’’ are the standard responses              ing asbestos insulators of: a) the best methods of
     to any study that provides evidence undermining                    detecting and minimizing injury-causing exposures;
     plaintiffs’ position that every exposure to any fiber               and b) efforts to pressure OSHA for the reduction of
     dose, type or size is a cause of this plaintiff’s disease.         permitted exposure levels and to rid the U.S. Navy
     See, e.g., R. Stone, News and Comment, No Meeting                  and commerce of insulation and other asbestos
     of the Minds on Asbestos, 254 SCIENCE 928-931 (1991);              products producing high dust counts. See, e.g.,
     Joseph Hooper, The Asbestos Mess, New York Times                   Asbestos Worker Magazine, Vol. XVIII, February
     Magazine, Nov. 25, 1990. see, also, Ogden, Data                    1969, in which Selikoff addresses asbestos workers’
     Sharing, Federal Rules of Evidence Rule 702, and the               obligation to protect themselves and members of
     Lions of the Undergrowth, 53 ANNALS OCCUPATIONAL                   allied trades from exposure by adopting safer work
     HYGIENE 651-655, 653-654 (2009), Ogden, Reply                      practices.
     [to Castleman et al.], 54 ANNALS OCCUPATIONAL
     HYGIENE 365-66 (2010).                                       8.    Irving Selikoff M.D., et al., Relation Between Expo-
                                                                        sure to Asbestos and Mesothelioma, 272 NEW ENG. J.
5.   In re Asbestos Litigation Limited to: Olson, Arland,               MED. 560-65 (1965).
     2011 Del. Super. LEXIS 27, C.A., also published at
     http://courts.delaware.gov/opinions/list.aspx?ag=            9.    132 ANNALS N.Y. ACAD. SCI. 711-715 (Appendix
     superior, No. 09C-12-287 ASB, (Super. Ct. Del.                     1)(1965).
     New Castle January 18, 2011) (applying Idaho law
     and citing Braaten v. Saberhagen Holdings, 198 P.3d          10.   Carcinogenicity of Amosite Asbestos, 25 ARCHIVES
     493 (Wa. 2008)); Lindstrom v. A-C Prod. Liab.                      ENVTL . H EALTH 183-186 (1972); Short-Term


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MEALEY’S LITIGATION REPORT: Asbestos                                                        Vol. 26, #2 February 16, 2011



      Asbestos Work Exposure and Long-Term Observation,          14.   Stone, supra note 4; Hooper, supra note 4.
      330 ANNALS N.Y. ACAD. SCI. 61-90 (1979); Mortal-
      ity Experience of Amosite Asbestos Factory Workers:        15.   See, e.g., L. Sichletidis, et al., Mortality from Occupa-
      Dose Response Relationships 5 to 40 Years After                  tional Exposure to Relatively Pure Chrysotile: A
      Onset of Short-term Exposure.                                    39-Year Study, 78 RESPIRATION INT’L J. THORACIC
                                                                       M ED . 63-68 (2009)(DPMM cases in relatively
      AM. J. INDUS. MED. 479-514 (1986).                               pure Greek chrysotile mine); E. Pira, et al., Mortality
                                                                       from Cancer and Other Causes in the Balangero Cohort
11.   J.C. McDonald, Commentary — Epidemiology of                      of Chrysotile Asbestos Miners, 66 O CCUPATIONAL
      Malignant Mesothelioma — An Outline, 54 ANNALS                   ENVTL. MED. 805-09 (2009)(two mesotheliomas in
      OCCUPATIONAL HYGIENE, 851-857 (2010). McDo-                      an Italian mine contaminated with Balangerite);
      nald has been an historic figure in the field of                   Yang 2009 (review); Camus, et al., Risk of Mesothe-
      epidemiology who has been subjected to repeated                  lioma Among Women Living Near Chrysotile Mines
      ad hominem attack due to partial support, at the                 Versus US EPA Asbestos Risk Model: Preliminary
      request of the Canadian government, from the Que-                Findings, 46 ANNALS OCCUPATIONAL HYGIENE 95-
      bec mining industry and unions of some of his early              98 (2002)(finding the 1986 EPA Risk Model grossly
      work, despite the fact that the objective accuracy of            overstates the risk of mesothelioma among residents
      his findings has withstood scientific examination. See             of a Quebec mining area); Case, et al., Preliminary
      Ogden, Data Sharing, Federal Rules of Evidence Rule              Findings for Pleural Mesothelioma Among Women in
      702, and the Lions of the Undergrowth, 53 ANNALS                          ´
                                                                       the Quebec Chrysotile Mining Regions, 46 ANNALS
      OCCUPATIONAL HYGIENE 651-655, 653-654 (2009),                    OCCUPATIONAL HYGIENE 128-31 (2002)(following
      Ogden, Reply [to Castleman et al.], 54 ANNALS OCCU-              up on reports of mesothelioma cases in Camus and
      PATIONAL HYGIENE 365-66 (2010).                                  confirming that six of ten possible or probable cases
                                                                       worked in an asbestos industry, that all ten were in
12.   For example, Liddell, Magic, Menace, Myth, Malice, 41            the highest tremolite (amphibole-exposed) region of
      ANNALS OCCUPATIONAL HYGIENE 3-12 (1997), is                      Thetford Mines, that, in three studied by lung fiber
      highly critical of Selikoff for his politicization and           analysis, all had every fiber type available in lung
      lack of scientific objectivity of the fiber question.              analyses, and that no cases were found in the
      This criticism itself was met with so much angst by              lower-tremolite area around the Jeffrey Mine);
      supporters of the Selikoff ‘‘lobby’’ that the editor of          David Rees, et al., Asbestos Lung Fibre Concentrations
      ANNALS gave equal status to the respondents. See                 in South African Chrysotile Mine Workers, 45 ANNALS
      also Selikoff and the Case of the Disappearing Amphi-            OCCUPATIONAL HYGIENE 473-77 (2001)(no DMM
      boles (2010), available at http://schachtmanlaw.com/             in South African chrysotile mine); Newhouse &
      selikoff-and-the-mystery-of-the-disappearing-amphi               Sullivan, A Mortality Study of Workers Manufacturing
      boles. The Navy specified the use of amosite in asbes-            Friction Materials, 1941-86, 46 BRITISH J. INDUS.
      tos blankets and pipe covering used to cover boilers             MED. 176-179 (1989)(at a chrysotile friction plant,
      and pipes in naval vessels since 1934. Id. Also, con-            all cases had amphibole exposures, except two with
      temporary reports from the Department of Commerce                uncertain histories); James A. Talcott, et al., Asbestos-
      indicate importation of substantial quantities of croci-         associated Diseases in a Cohort of Cigarette-Filter
      dolite even earlier than 1934. Id.                               Workers, 321 NEW ENG. J. MED. 1220 (1989)(work-
                                                                       ers using crocidolite to make cigarette filters had 5
13.   This author was engaged in a trial in Madison                    deaths out of 33 from mesothelioma); Acheson,
      County at the time. Returning to the trial on a Sun-             et al., Mortality of Two Groups of Women who Man-
      day evening flight to St. Louis, he spoke to a fellow             ufactured Gas Masks from Chrysotile and Crocidolite
      passenger, the Madison County judge trying the                   Asbestos: a 40-Year Follow-Up, 39 BRITISH J. INDUS.
      asbestos case that he was defending. The trial judge             MED. 344-48 (1982)(women making civilian gas
      advised that he was returning from a medical con-                masks in the UK using only chrysotile had no
      ference about asbestos held in the preceding days                DMM cases, while women making military gas
      in New York, later identified as the Third Wave                   masks using crocidolite had a very high incidence
      Conference.                                                      of DMM, 28% of which were peritoneal cases);


                                                                                                                            51
Vol. 26, #2 February 16, 2011                                                  MEALEY’S LITIGATION REPORT: Asbestos



      McDonald & Fry, Mesothelioma and the Fiber Type            22.   Dr. Frank, deposition, Molloy v. AW Chesterton,
      in Three American Asbestos Factories-Preliminary                 Madison County, IL No. 09-L-1025, April 8,
      Report, 8 SCANDINAVIAN J. WORK ENVTL. HEALTH                     2010, at 29:18-30:17.
      53-58 (1982)(Connecticut brake manufacturers
      had no pleural DMM cases).                                 23.   See, e.g., Note, Frank deposition at 29:18-30:17,
                                                                       71:23-72:11.
16.   Id.
                                                                 24.   Defense experts generally cite Paracelsus, the father
17.   Hodgson & Darnton, The Quantitative Risks of                     of toxicology, who stated heretofore what has been
      Mesothelioma and Lung Cancer in Relation to                      the uncontroverted truism, ‘‘[a]ll substances are poi-
      Asbestos Exposure, 44 A NNALS O CCUPATIONAL                      sons; there is none which is not a poison. The right
      HYGIENE, 565-601 (2000).                                         dose differentiates a poison. . . .’’

18.   Berman & Crump were retained by EPA to conduct             25.   U.S.E.P.A. Health Assessment Document, Asbestos
      a formal review of the 1986 Nicholson model. Report              (IRIS: CASRN 1332-21-4) (Nicholson 1986).
      on the Peer Consultation Workshop to Discuss a
      Proposed Protocol to Assess Asbestos-Related Risk,         26.   Those scientists found that short fibers create no
      Final Report, prepared by Eastern Research Group,                mesothelioma risk and that the risk of mesothelioma
      Inc. for the U.S. Environmental Protection Agency                from exposure to chrysotile is between zero and
      (May 30, 2003). However, during a review by the                  1/200th of the amphibole risk. Camus, supra note
      EPA’s scientific advisory board, approval of this                 15; Case, supra note 15; Berman and Crump, supra
      document as a formal statement of EPA’s position                 note 18.
      was torpedoed, in part, by objections made by plain-
                                                                 27.   Nicholson affidavit and letter accompanying affi-
      tiffs’ attorneys fearful of its affect on their personal
                                                                       davit (November 1983).
      injury claims. Risk Policy Report, (1/13/2009) avail-
      able at InsideEPA.com.
                                                                 28.   OSHA data found mean TWA exposure to be 0.03
                                                                       f/cc, Rules and Regulations, FED. REG., Vol. 51, No.
19.   Berman & Crump, A Meta-Analysis of Asbestos-
                                                                       119 (June 20, 1986), acceptable mean exposure dose
      Related Cancer Risk that Addresses Fiber Size and
                                                                       during brake repair work to be 0.04 f/cc, EPA Enfor-
      Mineral Type, 38 CRITICAL REV. TOXICOLOGY 49-
                                                                       cement and Exposures Branch Memo (1985), and
      73 (2008).
                                                                       average brake change dose to be 0.04 f/cc, Pausten-
                                                                       bach, Richter, Finley, Sheehan, An Evaluation of the
20.   See, e.g., Dail & Hammar, Pulmonary Pathology,
                                                                       Historical Exposures of Mechanics to Asbestos in Brake
      (Springer 2d Ed. 2008) (Chart: evidence of mesothe-              Dust, 18 APPLIED OCCUPATIONAL ENVTL. HYGIENE
      lioma causation by amphiboles is strong and by                   786-804 (2003).
      chrysotile is weak); see also Dr. Brody’s deposition
      taken on July 14, 2008 and used for In Re: Simmons-        29.   Armed with articles published by Mt. Sinai’s Rohl in
      Cooper v. A.W. Chesterton, Oct 6, 2008, Oct 27,                  1975 and 1976 and Lorimer in 1976 (see, note 32)
      2008, Nov 10, 2008, Dec 8, 2008 Madison County                   expressing concern about the potential for disease
      Trial Dockets, Madison Cty., IL, at 73:21-74:3; trial            among brake mechanics, Dr. Selikoff conducted meet-
      testimony of Dr. Eugene Mark, Mulcahy v. 3M Com-                 ings on the subject at NIOSH in 1975 and 1976
      pany, Cook Cty., IL, Aug. 31, 2009, at 204:21-                   demanding further study. Thereafter, NIOSH funded
      206:24.                                                          the Mt. Sinai team, including Nicholson, Lorimer
                                                                       and Selikoff, to conduct a comprehensive study of a
21.   See, e.g., Arnold Brody, Ph.D. deposition, Abernathy v.          cohort of New York City mechanics to determine if
      ABB Lumus, et al., Madison County, IL, October 4,                mechanics showed any symptoms of asbestos-related
      2004, at 71:10-13; Arthur Frank, M.D., deposition,               disease. The results of pulmonary function tests of
      Gundlach v. AW Chesterton, Madison County No. 07-                those in the brake repair group were normal or better
      L-119, July 7, 2009, at 119-120.                                 than expected. Those doing automobile brake


52
MEALEY’S LITIGATION REPORT: Asbestos                                                         Vol. 26, #2 February 16, 2011



      replacement at 0.2 f/cc exposures had normal X-rays.        39.   Simonetta v. Viad Corp. 197 P.3d 127, 134 (Wash.
      Nicholson, et al., Investigation of Health Hazards in             2008).
      Brake Lining Repair and Maintenance Workers Occu-
      pationally Exposed to Asbestos, U.S. Dept. of Commerce      40.   Hall v. Warren Pumps LLC; Walton v. William
      NTIS Document PB 83-220-897 (Aug 1984), at 93,                    Powell Co.; O’Neil v. Crane Co., review granted,
      95-96.                                                            unpublished, 2009 Cal. LEXIS 13491 (Cal. 2009).

30.   Ibid.                                                       41.   Billy Joel, New York State of Mind; see also Stein-
                                                                        berg, View of the World from 9th Avenue, THE NEW
31.   Frank, Transcript of proceedings, 2/13/08, In                     YORKER, cover, March 29, 1976.
      Re: Asbestos Cases, Court of Common Please, PA,
      (October 2008)(Epidemiology is the top scientific            42.   The first was Berkowitz v. A.C. & S., Inc., 733
      tool to establish cause); Brody, Abernathy v. ABB                 N.Y.S.2d 410 (N.Y. App. Div. 2001).
      Lumus, Madison County, IL, deposition taken on
      October 4, 2004, at 47:22-25, 48:6-16 (Epidemiology         43.   Rastelli v. Goodyear Tire & Rubber Company, 582
      is most important for cause . . . [y]ou must have epi-            N.Y.S.2d 373, 591 N.E.2d 222 (N.Y. 1992).
      demiology).
                                                                  44.   Holdampf v. Port Authority, 806 N.Y.S.2d 146, 840
32.   Lorimer, et al., Asbestos Exposure Among Brake Repair             N.E.2d 115 (N.Y. 2005).
      Workers in the United States, 43/3 MT. SINAI J. MED.,
      (May-June 1976).                                            45.   Berkowitz, 733 N.Y.S.2d 410.

33.   Supra note 28.                                              46.   In stating that the defendant ‘‘may have a duty to
                                                                        warn,’’ the court abandons its own obligation to
34.   Goodman, Teta, Hessel, et al., Mesothelioma and Lung              decide the question of duty, which is one of law
      Cancer Among Motor Vehicle Mechanics: a Meta-                     and not one to relegate to the jury to decide. Rastelli,
      Analysis, ANNALS OCCUPATIONAL HYGIENE 2004; Hes-                  supra, note 41.
      sel, Teta, Goodman, Lau, Mesothelioma Among Brake
      Mechanics: an Expanded Analysis of a Case-Control           47.   Kristal and Polanski, supra note 2, at 21.
      Study. 24 RISK ANALYSIS 547-52 (2004); Wong, Malig-
      nant Mesothelioma and Asbestos Exposure Among Auto          48.   Rastelli, 591 N.E.2d at 225.
      Mechanics: Appraisal of Scientific EVIDENCE, 34 Reg.
      Toxicology Pharmacology 170-77 (2001).                      49.   Berkowitz, 733 N.Y.S.2d 410.

35.   The EPA published results of air surveys conducted          50.   ‘‘The issue [is] whether. . . Goodyear has a duty to
      by members of the Mt. Sinai asbestos team, led by                 warn against its non-defective tire being used with
      Dr. William Nicholson, who found that ambient air                 an allegedly defective tire rim manufactured by
      measurements ranged from 0.01 f/cc-0.00007 f/cc                   others. . .’’
      breathed air 24-hr/day, 365 days/yr for every year of
      life. Many plaintiffs’ testifying experts have signed the         ‘‘Plaintiff’s alternative theory of recovery sounds in
      Helsinki Protocol as a consensus by which they believe            negligence and strict products liability. She alleges
      a disease can be attributed to asbestos exposure.                 that the subject Goodyear tire was made for installa-
                                                                        tion on a multipiece rim, that Goodyear was aware of
36.   Arthur Langer, Ph.D., Statement to EPA (1986).                    the inherent dangers of using its tires in conjunction
                                                                        with such rims and, thus, that Goodyear had a duty
37.   Smith v. Kelly-Moore, 2010 Tex. App. LEXIS 1367                   to warn of the dangers resulting from such an
      (Ft. Worth Div. Feb. 25, 2010).                                   intended use of its tires. Plaintiff does not claim
                                                                        that the subject tire was defective. Her claim is
38.   Braaten v. Saberhagen Holdings, et al., 198 P.3d 493,             based only on the fact that the particular Goodyear
      498 (Wash. 2008).                                                 tire could be used with multipiece rims which had


                                                                                                                            53
Vol. 26, #2 February 16, 2011                                                   MEALEY’S LITIGATION REPORT: Asbestos



     their own alleged inherent defects. (Footnote                     about the use of its tire with potentially dangerous
     omitted.)’’                                                       multipiece rims produced by another where Good-
                                                                       year did not contribute to the alleged defect in a
     ‘‘We have held that a plaintiff may recover in strict             product, had no control over it, and did not produce
     products liability or negligence when a manufacturer              it (citations omitted).’’
     fails to provide adequate warnings regarding the use
     of its product [citations omitted.]’’                       51.   Kosowski v. Crane Co., Supreme Court of New York,
                                                                       Oswego County (January 5, 2011).
     ‘‘Under the circumstances of this case, we decline to
     hold that one manufacturer has a duty to warn about         52.   Selikoff himself admonished union insulators that it
     another manufacturer’s product when the first manu-                was of paramount importance that they use safe
     facturer produces a sound product which is compatible             work practices to eliminate dust in order to protect
     for use with a defective product of the other manufac-            the health of workers in other trades. See, e.g., Asbes-
     turer. Goodyear had no control over the production of             tos Worker Magazine, Vol. XVIII, No. 6 (Feb. 1969).
     the subject multipiece rim, had no role in placing that
     rim in the stream of commerce, and derived no benefit        53.   Rastelli, supra note 41; Holdampf, supra note 42.
     from its sale. Goodyear’s tire did not create the alleged
     defect in the rim that caused the rim to explode.           54.   See, e.g., notes 13, 15, 16, 18, 19, 21, 23-26, 29,
     Plaintiff does not dispute that if Goodyear’s tire had            and 31.
     been used with a sound rim, no accident would have
     occurred. See Lytell v. Goodyear Tire & Rubber Co.,         55.   Bates & Mullin, Having Your Tort And Eating It,
     439 So. 2d 542 (La. Ct. App. 1983).’’                             Too?, Mealey’s Litigation Report: Asbestos 6, 4,
                                                                       (November, 2006); Bates & Mullin, Show Me The
     ‘‘This is not a case where the combination of one                 Money, Mealey’s Litigation Report: Asbestos 22, 21
     sound product with another sound product creates a                (December, 2007); Bates, Mullin, & Marquardt, The
     dangerous condition about which the manufacturer                  Naming Game, Mealey’s Litigation Report: Asbestos
     of each product has a duty to warn. See Ilosky v.                 24, 15 (September 27, 2009); Bates, Mullin, and Scar-
     Michelin Tire Corp., 307 S.E.2d 603 (W. Va.                       cella, The Claiming Game, Mealey’s Litigation Report:
     1983). Nothing in the record suggests that Goodyear               Asbestos 25, 1 (February 3, 2010).
     created the dangerous condition in this case. Thus,
     we conclude that Goodyear had no duty to warn               56.   Id. n




54
            MEALEY’S LITIGATION REPORT: ASBESTOS
                      edited by Bryan Redding
               The Report is produced twice monthly by




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