Mesothelioma & the Law

In March of 1941, C.S. Stephenson, Commander of Preventive Medicine for the U.S. Navy, sent a memo to Rear Admiral Ross MacIntyre, which said: “We are not protecting the men as we should.” Pearl Harbor was still nine months in the future; although it was generally acknowledged by the Roosevelt Administration that U.S. involvement in the war was inevitable, U.S. servicemen had yet to see combat under their own flag. What was Stephenson’s issue?

The heading of the memo was “Asbestosis.” (1) This memo, uncovered years later, is one of the many documents proving that the U.S. government as well as Corporate America have long known about the dangers of asbestos, and deliberately withheld that information from the public.

Today, decades later, those suffering from the agony of mesothelioma are asking why their government and/or their employers failed to protect them. Charles Ay, a former shipyard worker understands too well: “Money.” Ay has testified in several legal actions. He has said that by 1975 (if not earlier), corporations and government alike understood that to fully protect workers would have required the use of special HazMat (hazardous materials) suits such as are used by EPA inspectors.

“By the time you add up the cost of all that protective gear, you are talking about hundreds of thousands of dollars...it was a lot cheaper to let them work unprotected,” said Ay (2).

This is the type of behavior most knowledgeable Americans have now come to expect from corporations. But what does it say when a government of We, the People fails to protect its own servicemen and women from such an avoidable danger?

What is the dollar value of a human life? While this concept should seem an obscenity to any moral, ethical person, the law states quite clearly that asbestos victims and the courts have a right make that determination.

Fighting For Victims’ Rights

Mesothelioma and the law covering it falls into two categories: regulatory statutes, which specify what steps industry must now take to protect employees; and personal injury law (known in legal terms as tort), allowing victims to take action against institutions responsible for their asbestos exposure as well as the manufacturers of the substance (3).

Because corporate America has largely taken over the federal government today, preserving the right of asbestos victims to sue is a constant battle. Since the 1980’s – and particularly for the past six years – most members of Congress on both sides of the aisle have been more interested in protecting the corporate interests who donate to their campaigns than serving the constituents who elect them. One particularly egregious example was the recent FAIR act – which was the very antithesis of fairness.

The Fairness in Asbestos Resolution Act (SB 852) was introduced by Senator Arlen Specter (R-PA) in April of 2005. This bill would have deprived citizens of the right to file suit against corporations for injuries related to asbestos. Instead, the federal government would have established a private trust fund, financed by insurance companies and responsible corporations, from which mesothelioma and other asbestos victims would be compensated. 

The bill’s proponents claimed it would speed up the recovery process for claimants. However, such claimants would receive only a fraction of their deserved compensation, while the corporations who willfully and negligently exposed workers and their families to a substance they knew to be toxic would be absolved from any and all liability.

The bill died in the Senate in February, 2006, but was re-introduced by Specter in May of that year as SB 3274. The Senate Judiciary Committee held a hearing on the bill ten days later, but no action has been on it taken since (4).

Nonetheless, federal judges appointed by the current Administration continue to rule in favor of corporate interests. Recently, U.S. District Judge Donald Malloy dismissed conspiracy charges against the owners of Montana’s infamous Libby Mine, and disallowed scientific evidence as well as asbestos samples – in spite of documented facts showing that Libby residents suffer from respiratory disease and cancer at abnormally high rates. Prosecutors are currently bringing the case before the U.S. Court of Appeals (5).

Taking Legal Action

Despite ongoing attempts by corporations (with help from their allies in the legislature) to shield themselves from any liability, legal actions continue to move forward across the nation. In the vast majority of cases, justice is being served for asbestos victims.

When it comes to mesothelioma and the law, there are two issues to keep in mind: the statute of limitations and causation. The former is the period of time – starting from the day you are diagnosed – within which you must file your claim. If you fail to do so, you will lose your right to bring such action. The statutes of limitations vary by state, but run between one and three years. It is to your advantage to file a claim as soon as possible, once you are diagnosed.

Causation means that you – as the plaintiff – must demonstrate that your disease is the result of asbestos exposure, and that such exposure was due to the defendant’s negligence. Documentation of a thorough, professional diagnosis by an experienced oncologist is important as well as evidence that your employer or the company in question (A) knew (or should have known) that a hazard existed, and (B) neglected to take action which would have protected the plaintiff (you) from said hazard.

Keep in mind that the wheels of justice often turn slowly; the entire process can take several months, or even years. Even if the judge or jury finds in your favor, an appeal on the defendant’s part is almost certain. Likewise, if you or your attorney disagrees with the judge’s decision, you have the right to appeal as well.

'Mesothelioma & the Law' Resources:

Notes

  1. Bowker, Michael. Fatal Deception, pp. 105-106
  2. Bowker, op. cit., p. 107
  3. “Mesothelioma Law.” Asbestos News (2006).
  4. “The Fairness in Asbestos Injury Resolution Act of 2005.” OLPA (2007).
  5. “Prosecutors Wish To Delay Asbestos Case.” Asbestos News (2006).

Sources

  1. Asbestos News. “Mesothelioma Law” (Website). Updated 25 August 2005.
    Accessed: 24 July 2007.
  2. Asbestos News. “Prosecutors Wish To Delay Asbestos Case” (Website). Updated 25 August 2005.
    Accessed: 24 July 2007.
  3. Bowker, Michael. Fatal Deception. (New York: Touchstone, 2003)
  4. Office of Legislative Policy and Analysis. “The Fairness in Asbestos Injury Resolution Act of 2005.” (Website).
    Accessed: 24 July, 2007