Mesothelioma Victims

Vic·tim
One that is acted on and usually adversely affected by a force or agent:
as (1) : one that is injured, destroyed, or sacrificed under any of various conditions (2) : one that is subjected to oppression, hardship, or mistreatment
-Merriam Webster Dictionary, 2007

There is no question that patients with mesothelioma and other asbestos diseases are victims. Questions arise when addressing why asbestos-related illness continues to rise and what can be done about it.

A brief look at the history of asbestos-related illness reveals a disregard for early clues, even though some were publicized.

In 1906, H. Montegue Murray, a physician at Charing Cross Hospital in London, testified at a government inquiry that the reason for the lung fibrosis, or scarring that had killed a man he autopsied was workroom dust at the asbestos factory that employed him.

In 1924, Nellie Kershaw, a veteran asbestos textile factory-worker, became the first documented “asbestosis” fatality. The British Medical Journal published the case study, in which the author used the word asbestosis for the first time, drawing attention to the relationship between the dust and the deadly fibrosis. He went as far as to note that the condition could lie dormant as many as 15 years before surfacing. Still, many dismissed his findings, claiming that the scarring could be attributed to tuberculosis.

By the 30s, physicians were noting that asbestosis patients were developing cancer.

Despite mounting evidence, 20th century asbestos use continued, and production of asbestos-containing products grew. Why?

Simply stated, asbestos is useful. It had already been found for many centuries to be fire-resistant, to insulate against temperature and electricity, and to resist easily breaking down, even when exposed to friction or the emerging use of chemicals. The Industrial Revolution encouraged the development of new applications for this versatile material and, naturally, industry did not want to believe there was any reason not to use it for all it was worth.

As more and more cases of mesothelioma and asbestos-related disease appeared, the early disregard exhibited in the first quarter of the 20th century evolved into a pattern of blatant irresponsibility. Documents submitted as exhibits in courts demonstrate clearly that the hazards of asbestos exposure were not only known, but hidden from the public.

“I realize that our findings regarding Kaylo (brand name for an asbestos product) are less favorable than anticipated. However, since Kaylo is capable of producing asbestosis, it is better to discover it now in animals rather than later in industrial workers. Thus the company, being forewarned, will be in a better position to institute adequate control measures for safe-guarding exposed employees and protecting its own interests.”
-Arthur J. Vorwald, M.D.,
The Trudeau Foundation for the Clinical Study of Pulmonary Disease, 1948

By the time undeniable, medically proven evidence was accepted by industry and government, a staggering number of mesothelioma victims already existed. Only at this point did they begin to be recognized. OSHA and the EPA did not begin to regulate asbestos until the 1970s.

Insulators, steel-workers, electricians, plasterers and shipyard workers, mechanics, bricklayers, and carpenters, pipe-fitters and military personnel; the list of affected occupational classifications is seemingly endless. Even those who would not have been expected to have been exposed, such as engineers, housewives, and record company personnel, were all shown to have suffered and, in far too many cases, died.

Most disturbing is that there is no promise that the number of cases will decline. Because asbestos fibers do not break down and natural elimination cannot flush them out of the body, individuals whose exposure ceased long ago are still at high risk for developing disease.

Currently proposed legislation, such as the Ban Asbestos in America Act of 2007, will stop future imports and demand that the government pay more attention to the over 15 million homes and businesses in which asbestos still exists. But if passed, says former U.S. assistant Surgeon General Richard Leman, “…it may prevent the next generation from getting asbestos disease;” it cannot help those who have already been exposed.

Until all asbestos has been removed, its past use will continue to haunt us. People who work, live, attend school or are hospitalized in those 15 million buildings are exposed to asbestos regularly.

Victims of mesothelioma and asbestos-related disease and their families do have options. The industrial disregard and irresponsibility that have facilitated this epidemic problem also laid the foundation for litigation. Plaintiffs have been awarded anywhere from tens of thousands of dollars into the millions.

Of course, some plaintiffs are awarded nothing. The “burden of proof” of linking one’s disease to their asbestos exposure falls on the shoulders of the plaintiff and his or her legal counsel. Proving a specific correlation can be difficult.

Even when the disease is proven to be from asbestos exposure, many other factors will be taken under consideration before compensation will be awarded. Job history and the duration of the specific exposure will be thoroughly examined. Personal habits, such as smoking and family medical histories will be aggressively questioned. The severity of the condition, what treatment can be expected to cost, wages lost, and how long the victim is expected to live will be analyzed, much like a corporate balance sheet.

For many, this process is perceived as another painful victimization.

Supporters of The Fairness in Asbestos Injury Resolution Act, or “Hatch Bill,” state that its passage will minimize this secondary victimization. The Bill proposes a $140 billion fund dedicated to victims of asbestos-related disease. The money would be provided by companies with a history of using asbestos, and would be administered by the government.

The enactment of this bill, proponents say, will expedite cash payments, and eliminate the uncertainty for both the victims and the offending companies, as the compensation is not an “award” given by the court, but an entitlement once the disease is proven, and the companies fully know and can plan for their own financial exposure.

A spokesman for The Association of Trial Lawyers of America, however, questions “…why would we want to pass something that simply is a big fat wet kiss for the asbestos industry…?”

In court or out, whether through jury award or administrative entitlement, mesothelioma victims can take some small comfort in knowing that they have been acknowledged as victims and that the battle for what is fair and just continues to be fought.