Tobacco.org

McConnell tapped tobacco war chest to fund 9-year lead paint battle 

For nine years prospective federal judge nominee Jack McConnell battled paint makers with boundless powers he received from attorneys general he helped elect.

As he awaits the nomination process, McConnell, of the Motley Rice firm in Providence, continues in his role as Rhode Island Democratic Party treasurer.

Had he been successful in carrying out the mammoth lead paint abatement plan he devised in 1999, and which fell apart last year, McConnell and other lawyers would have shared hundreds of millions in fees, maybe billions.

According to court records, the abatement plan would have bulldozed Rhode Island from end to end. State and federal housing laws and regulations that would forbid entering properties without warrants would have been suspended. . ..

The firm identifies him as negotiator and primary drafter of the master tobacco settlement agreement of 1998.

Whitehouse explained to reporters that the state wouldn't spend any money on lead abatement because Motley Rice had "a big war chest from the tobacco litigation," according to a report in the Providence Journal.

"McConnell brings horses in a big way," Whitehouse said. "He's part of a great firm with very deep pockets."

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09/25/2008 - Clarification of the provision banning smoking in the OSHA asbestos standards. 

Dear Mr. Czehowski:

This is in response to your letter to the OSHA San Francisco Regional Office, asking for clarification of a 1990 letter of interpretation regarding OSHA's asbestos standards. We understand that the State of Nevada has adopted standards identical to those of Federal OSHA and intends to follow the Federal enforcement policy. Your letter was forwarded to OSHA's national office for response . . .

The employer shall ensure that employees do not smoke in work areas where they are occupationally exposed to asbestos because of activities in that work area. (emphasis added)

As we explained in our 1990 letter to Mr. Sledge, the Agency determined that the health risk for smoking employees exposed to asbestos is substantially higher than nonsmoking ones. We explained in the preamble to the rule that "[t]his is an expansion of the present smoking ban, which, as in most OSHA health standards, is confined to regulated areas where exposures are elevated." (55 FR at 3726, February 5, 1990). The smoking ban in the asbestos standards does not specify a level of exposure. However, the exposure must have its source in the workplace. We have explained that this means that an employee who works in areas where there are operations that disturb asbestos, such as asbestos abatement and renovation activities, may be occupationally exposed, regardless of whether that employee disturbs or handles the asbestos.

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Asbestos exposure, smoking:'a deadly combo'  

The link between cigarette smoke and asbestos illness has been highlighted by a new medical research project.

A project between Queensland's James Cook University and the Bulgarr Ngaru medical centre at Grafton is looking at ways to improve the health of Aboriginal people who lived or worked near asbestos mines.

The research also extends to West Australia's Pilbarra region where another Aboriginal community was exposed to significant levels of asbestos.

Dr Richard Murray from James Cook says the focus on financial compensation has quashed important health messages that communities need to hear.

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Smithsonian and 27-Year Employee in Battle Over Asbestos  

Within weeks, Pullman had gathered internal documents and filed federal workplace safety complaints. And because he'd been experiencing shortness of breath, he went to see a lung doctor, who diagnosed asbestosis, a lung disease linked to breathing asbestos fibers.

Pullman and the museum are now engaged in a dispute about the danger posed by asbestos dust in the building. Smithsonian Institution officials acknowledge the presence of asbestos but say their tests show there is nothing harmful in the air. As a precaution, the museum spent $27,000 to clean up 11 areas in five galleries, officials said.

Industrial hygienists who reviewed the tests told The Washington Post that the greatest risk of exposure is to workers who did not wear protective gear. For visitors to the museum, exposure would be extremely unlikely unless they walked into a work area after walls were sanded or cut.

Managers have known for 17 years that wall seams at the 33-year-old museum on the Mall had been smoothed over with spackling containing levels of asbestos that would trigger worker-safety rules. A consultant's report commissioned by the Smithsonian, which runs the museum, determined the material would be harmless if undisturbed. The report urged that workers be alerted.

But that rarely occurred.

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Asbestos Allegations at Air and Space Museum 

Synergistic Effect (Between Cigarette Smoking and Asbestos Exposure) 

Research has proven, time and again that cigarette smoking does not contribute to developing mesothelioma. In fact, patients who never smoked were more likely to develop mesothelioma, than those who did smoke. Studies also show that asbestos exposure, alone, doesn't cause lung tissue cancer. . . .

The combination of asbestos exposure and smoking is far more destructive than either by itself. This multiplication of risk is called a synergistic effect. Synergism produces an outcome that is greater than the sum of the components. In this situation, the outcome is the number of people who develop lung cancer, and the components are smokers exposed to asbestos compared to smokers with no exposure to asbestos. . . .

It's worth noting that smokers who have a history of asbestos exposure can reduce their risk of lung cancer as low as two to six times that of the general population in as little as ten years after quitting smoking. While this is still an undesirable risk, it is an immense improvement from 50-90 times. Since this is a controllable risk it is worth quitting smoking, however difficult that may be.

If you have received a diagnosis of mesothelioma or asbestosis, you may be entitled to compensation. Please visit the website of Parker, Dumler & Kiely, LLP, the experienced mesothelioma lawyers in Baltimore, Maryland and Washington, D.C.

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• In This Asbestos Case, Plaintiffs May Get Burned 

Asbestos defendants often say they're the victims of a multibillion-dollar shakedown. A new case could prove they're right.

Asbestos defendants have complained for years that they are the victims of a multibillion-dollar shakedown. Now a Mississippi lawsuit makes that claim explicit: A Georgia company that paid out some $95 million in asbestos settlements has accused doctors, testing companies and as-yet unnamed plaintiff lawyers of participating in a racketeering scheme to gin up phony cases.

It's not the first time an asbestos defendant has accused the other side of fraud. . . .

Potential defendants include some of the most prominent names in the plaintiffs' bar, such as Baron & Budd; Motley Rice; Reaud, Morgan & Quinn and Brent Coon. Many are big supporters of the Democratic party and some participated in the multibillion-dollar tobacco settlement, raising the political stakes if the case proceeds.

The Mississippi lawsuit--two of them, actually, filed in state and federal court--names physicians including Dr. Jay T. Segarra, an Ocean Springs, Miss., radiologist who reportedly reviewed tens of thousands of X-rays over the years for evidence of asbestos injury. . . .

The Mississippi cases face an uphill fight, as lawyers and physicians have frequently cited confidentiality and the attorney-client privilege to refuse to turn over documents. But defendants have cracked the wall. An Ohio judge in 2007 booted the Novato, Calif., law firm of Brayton Purcell from an asbestos case after defendant Lorillard Tobacco Co. obtained e-mails and other documents suggesting the lawyers had made up information about their client.

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• Ex-Grace Officials on Trial in Asbestos Poisoning  

LIBBY, Mont. — A reckoning in one of American history’s worst industrial disasters, which unfolded here over seven decades as an asbestos-tainted mineral was dug from the ground and processed, begins Thursday when five former mine executives go to trial on federal criminal charges.

The case is highly unusual in that prosecutors have generally avoided criminal charges in the broad arena of asbestos law, leaving the issue to the civil courts.

But the story of the now-closed mine and its adjacent mill is different, because it involves not only miners but also their families and neighbors, many of whom became ill just living in this remote northwestern corner of Montana.

At least 200 deaths and thousands of illnesses are known to be related to the town’s exposure to the mine’s billowing dust clouds of vermiculite . . .

The company did ban smoking at the mine in 1978 — smoking compounds the dangers of asbestos, doctors say — and also issued respirator masks to workers. But showers that the miners could have used at the end of their shifts before heading home were ruled out, because they might have overly worried people. . . .

Legal experts say that some of the prosecution’s case could be particularly hard to prove, especially the charges that Grace executives obstructed justice by obfuscating in interviews with investigators at the Environmental Protection Agency, and then conspired to cover up their knowledge of the asbestos risks.

“Companies have a right under the First Amendment, established by the Supreme Court and recently reinforced, to advocate on their own behalf,” said Lester Brickman, a professor at the Benjamin N. Cardozo School of Law in New York.

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Lawyer: Scruggs, ex-senator conspired to cheat him  

An Alabama attorney has filed a federal lawsuit against imprisoned attorney Richard "Dickie" Scruggs and several others, alleging they conspired with a former U.S. senator to bribe a state court judge and defraud him of millions in legal fees.

The former senator is not identified by name in the federal lawsuit filed Monday by William Roberts Wilson Jr. However, one of Wilson's attorneys, Vicki Slater of Jackson, said the unnamed senator is Scruggs' brother-in-law, Trent Lott, a Republican power broker who retired in 2007. . . .

Scruggs and Wilson, of Tuscaloosa, Ala., once worked together suing asbestos companies. Wilson claimed Scruggs cheated him out of money and used it to fund a batch of landmark anti-tobacco lawsuits of the 1990s, in which Scruggs reportedly earned as much as $848 million. Wilson sued for a cut.

Wilson now accuses Scruggs and the others of racketeering by conspiring to bribe a judge presiding over the dispute dealing with the asbestos fees.

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• Workers' Comp Award in Asbestos Case Reduced to Account for Cigarette Usage 

The Connecticut Supreme Court has ruled that a laborer's lung damage from smoking can be segregated from respiratory problems caused by asbestos work, and his workers' compensation award reduced by the portion of his ailment caused by cigarettes.

Workers' comp plaintiffs lawyers say that before the decision in George Deschenes v. Transco, such blended injuries had consistently resulted in full compensation.

The justices reached their conclusion after a long struggle. The ruling, to be officially released this week, was a reconsideration of a decision issued in the same case last year. The justices tightened some language after considering amicus briefs by lawyers who represent injured workers. . . .

"For the court to judicially create this apportionment where none had been before really caught the attention of a lot of people," said Nathan J. Shafner, of Groton, Conn.'s Embry & Neusner, who co-authored one of four amicus briefs in the case, on behalf of the New England Health Care Employees Union. "We saw this as more than a slippery slope -- this was a runaway train."

Justice Flemming L. Norcott Jr., writing for a unanimous court, saw the question as one that had never been asked before. Whether the Workers' Compensation Act requires official consideration of two separate but concurrent illnesses -- one occupational, the other not -- is a question of first impression, he wrote, and one "that requires us to fill a gap in our statutes." . . .

there was too little information in the court record for the Supreme Court to issue a final ruling. So the case was sent back for further legal proceedings before a different commissioner.

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[E]mployers should not have to bear the costs of their employees' smoking habits.
Connecticut Supreme Court.

• Grace Bets On Winning Asbestos Lawsuits  

W.R. Grace followed the same tack for a while. But pushed into bankruptcy, it now is trying the novel approach of asking a bankruptcy judge to declare many of the roughly 100,000 claims it faces to be invalid.

The company is making the request as part of its effort to emerge from bankruptcy. In order for Grace to exit bankruptcy, the judge must rule on what liabilities the company faces, and that means deciding how many of the claims are valid and what they might total. The judge's decision does not resolve the individual claims, but it could set a standard for further litigation.

The trial started two weeks ago, and already Judge Judith Fitzgerald has allowed the company to introduce testimony purporting to show that diseases were over-diagnosed in many cases. . . .

"This case and this trial present the first opportunity for a federal court to set a standard on the basis of which the tens of thousands of asbestos claims that are being pursued can be resolved based upon their merit," said David Bernick, a lawyer representing Grace who has a long history defending companies against similar lawsuits. . . .

Asbestos lawsuits have been a prominent battleground for the competing claims of trial lawyers and corporations over the years, a debate that has played out over weight loss pills, tobacco, silicon breast implants and other products.

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• [Donna Silbersack, Personal Representative of the Estate of Dominic Casino, et al. v. AC and S, Inc., et al., No. 53, September Term 2007. 

This case has a complex history, but the issue before us is a simple one. No final judgment, as we have consistently defined that term, has been entered in the case by the Circuit Court. There are still claims pending against nine defendants who are in bankruptcy. Appellants asked the court to enter a judgment, under Maryland Rules 2-601 and 2-602(b), and the court declined to do so. Appellants acknowledge that such a decision is both a discretionary and interlocutory one and that no appeal ordinarily lies from it. Their case, they believe, calls for a different result. They insist that, in their case, the court’s refusal to exercise its discretion in their favor constitutes a final judgment. We disagree and shall dismiss their appeal.

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• Asbestos plaintiff can’t fight tobacco dismissals 

The Court of Appeals has refused to allow the family of a man who died of lung cancer to put a wrongful death suit against asbestos defendants “on ice” while appealing the dismissal of tobacco defendants.

“Ultimately, the question is whether the case should remain in trial court until the case is over, which, for good reason, is what the law generally requires,” wrote retired Judge Alan M. Wilner, specially assigned, for the high court.

“We think the court correctly decided the case and we are very pleased,” said Kathleen McDonald of Kerr McDonald LLP, attorney for appellee Lorillard Tobacco Co. . . .

Case: Donna Silbersack, Personal Representative of the Estate of Dominic Casino, et al. v. ACandS, Inc., et al. CA No. 53, Sept. Term 2007. Reported. Opinion by Wilner, J. Filed Jan. 4, 2008.

Issue: Can a party appeal the denial of a motion for an entry of a final judgment?

Holding: No; appeal dismissed. . . .

Appellants, the widow of Dominic Casino and the personal representative of his estate, filed suit in Baltimore City Circuit Court in 1997 against 19 defendants after Casino died of lung cancer. The wrongful death and personal injury lawsuit claimed that Casino’s death was caused by exposure, during his employment at the Bethlehem Steel Corp., to asbestos products that were allegedly manufactured or distributed by the defendants.

A year prior to filing this suit, Casino was also part of a class of plaintiffs in a class action lawsuit against Philip Morris filed by The Law Office of Peter G. Angelos.

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• Rules on smoking weren't enforced at toxic ground zero building 

The deadly fire at an abandoned ground zero skyscraper has raised questions over whether there is strict enough enforcement of rules banning smoking at certain construction sites.

City officials this week said that they believe careless smoking by demolition workers started the blaze, which filled the tower with a lung-searing soot that killed two firefighters.

Smoking was forbidden in the building, but authorities said the rules were widely ignored. Fire Commissioner Nicholas Scoppetta said workers apparently lit up regularly, including on the 17th floor, where the blaze began.

That smoking was common surprised some fire safety experts, who noted that the tower, which is being dismantled after being damaged in the Sept. 11 terrorist attacks, was filled with flammable materials including unusually large amounts of plywood and plastic used to contain asbestos.

"There should have been people walking around saying, 'If you smoke anywhere within 100 feet of this building, you're history,"' . . .

A variety of city and state rules were supposed to have limited cigarette use in the building. . . .

The Occupational Safety and Health Administration also bans smoking in any areas where workers are exposed to asbestos because of their jobs.

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A Statement from Weitz & Luxenberg, P.C. to Smokers and Former Smokers: Asbestos Exposure Multiplied Your Risk for Lung Cancer 

Sitting before the U.S. Senate two years ago, Dr. Philip Landrigan, the Chair of the Department of Community and Preventive Medicine at Mt. Sinai School of Medicine, testified, "asbestos workers who also smoke[d] have 55 times the background risk of lung cancer." Further, according to Perry Weitz, the founding member of Weitz & Luxenberg, P.C., a leading asbestos law firm, "if smokers who are exposed to asbestos smoke a pack of cigarettes a day, their risk of getting lung cancer is more than a 100 times that of a person who does not smoke and isn't exposed to asbestos." The courts have found in favor of smokers exposed to asbestos with multimillion dollar damages punctuated by a recent jury verdict won by Weitz & Luxenberg P.C.

"Cigarettes are addictive, asbestos is not. All that was needed to protect people from asbestos-related lung cancer was a warning," says Perry Weitz.

In May, the firm obtained a jury verdict of $37 million for two smokers with lung cancer who had been exposed to asbestos; adding another victory to its long record of success in asbestos litigation (index #s 100016/99 and 113583/05, New York Supreme Court). The defendant was Robert A. Keasbey Company, a former insulation contractor and distributor of asbestos products.

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