/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/120127.mbx C L A S S A C T I O N R E P O R T E R Friday, January 27, 2012, Vol. 14, No. 19 Headlines COSTA CONCORDIA: Survivors Say Too Early for Class Action COSTA CONCORDIA: Lawyer to File Class Action in Miami v. Parent DRESDNER KLEINWORT: Former Investment Bankers File Class Action FACEBOOK INC: Accused of Secretly Collecting Users' Information GOVGUAM: Class Action Over Tax Refunds Can Move Forward GOV'T OF CANADA: Faces Class Action Over First Nations Status LEE CARTER: Recalls 25,000 Infant Rattles Due to Choking Hazard LEE CARTER: Recalls 7,000 Packs of Wrestling Action Figures PRUDENTIAL FINANCIAL: May Face Class Action Over Death Benefits SAFELITE SOLUTIONS: CSRs' Class Action Nears Settlement SAMSUNG ELECTRONICS: FTC Supports Price-Fixing Class Action SILO BAKERY: Faces Class Action Over Alleged Food Poisoning STATE STREET: Faces Class Action Over Fiduciary Breaches TAMMANY HOLDING: Faces Environmental Class Action UMPQUA BANK: Wants Customer Claims Settled Through Arbitration VALLE FOAM: Files for Ch. 15, Seeks CCAA Case Recognition WALMART: Still Faces Sex Discrimination Suit WILLIS OF ILLINOIS: Misrepresents Sale of Insurance, Suit Says Asbestos Litigation ASBESTOS UPDATE: Mesothelioma Drug Gets "Orphan Drug" Status ASBESTOS UPDATE: Kin of Asbestos Cleaner Talk About Exposure ASBESTOS UPDATE: Wash. Contractor Denies Health Code Violations ASBESTOS UPDATE: Knowledge of Toxic Dangers Existed in 1920 ASBESTOS UPDATE: Remediation Costs of PA Plant May Top $1.1MM ASBESTOS UPDATE: Cloverleaf Mall Abatement to Complete in February ASBESTOS UPDATE: Contaminants Delay Work at Idaho College Campus ASBESTOS UPDATE: Midway's $47,000 Bid Wins Streator Abatement Job ASBESTOS UPDATE: Abatement of 2 Albuquerque Sites to Finish in Feb ASBESTOS UPDATE: Plaintiffs May "Forum-Shop" Cases to Other States ASBESTOS UPDATE: Dechert LLP Lawyer Further Justifies SC Tort Rule ASBESTOS UPDATE: Abatement On for BART Modernization Project ASBESTOS UPDATE: Proposed Mesothelioma Fund Still on U.K. Agenda ASBESTOS UPDATE: Bristol Water Says No Pollution Has Taken Place ASBESTOS UPDATE: Weber Aims to Reform Rules in Favor of Defendants ASBESTOS UPDATE: Smith Pleads Guilty Sentenced to 5 Years in Jail ASBESTOS UPDATE: New Found Hazards Add $300,000 to Abatement Cost ASBESTOS UPDATE: Intake Firms, Pre-Assigned Trial Slots Explained ASBESTOS UPDATE: Exposed Hazards Put Nursing Home for Abatement ASBESTOS UPDATE: Discovery Pushes Hazard Check on Old Ferries ASBESTOS UPDATE: Total Environmental Gets Fremont Abatement Job ASBESTOS UPDATE: Aquatic Centre Vermiculite At 'Below Risk' Level ASBESTOS UPDATE: Ex-Employee's Family Sues Chevron and Texaco ASBESTOS UPDATE: Lopinot is St. Clair Cty's New Docket Master ASBESTOS UPDATE: Carcinogens Found in Northampton Nursing Home ASBESTOS UPDATE: Debate Up Over Information From Asbestos Trusts ASBESTOS UPDATE: McGill Univ. Holds on Chadha Amid Letter Campaign ASBESTOS UPDATE: Phillip Foxman Companies Face 6 EPA Prosecutions ASBESTOS UPDATE: Oldham Council Ensures Abatement of The Coliseum ASBESTOS UPDATE: Johnson Mine Heir Joins Letter-Writing Campaign ASBESTOS UPDATE: Renovations Stir Up Toxic Fibers in Bayside Homes ASBESTOS UPDATE: QFRS Suspects Toxic Contamination in Razed House ASBESTOS UPDATE: 1,000 Km of Asbestos Piping Found in Ethekwini ASBESTOS UPDATE: Bristol-Myers Gives $7 Million to Cancer Patients ASBESTOS UPDATE: EPA Violator Faces 2 Years and $250,000 Fine ASBESTOS UPDATE: Princeton's Firestone Library Abatement Ongoing ASBESTOS UPDATE: Contractor Imposed "Death Sentences" on Workers ASBESTOS UPDATE: Downtowner Abatement to Complete in 45 Days ASBESTOS UPDATE: 2 Violators Indicted for Improper Abatement ASBESTOS UPDATE: Toxic Materials in Razed Turrella Factory Found ASBESTOS UPDATE: Crane Posts $157MM After-Tax Asbestos Provision ASBESTOS UPDATE: Paterno Might Have Been Exposed to Toxic Fibers ASBESTOS UPDATE: 60-Day Jail Term Too Light, Says Union President ASBESTOS UPDATE: Belluck & Fox LLP Wants Canadian Mines Closed ASBESTOS UPDATE: Law Firm Cites Fewer Cases But Higher Jury Awards ASBESTOS UPDATE: A.W. Chesterton and 61 Others Face Lawsuit ASBESTOS UPDATE: Travelers Wins $420.4 million Ruling in NY ASBESTOS UPDATE: Lung Cancer in Carolina Textile Workers Rising ASBESTOS UPDATE: $600MM Thorpe Settlement Trust Ruling Reversed ASBESTOS UPDATE: Abatement Issues Halt Dearborn Towers Liquidation ASBESTOS UPDATE: CPSM Updates Information on Automotive Products ASBESTOS UPDATE: Calif. Ct. Favors Crane Co. in Liability Suit ASBESTOS UPDATE: Ill. Ct. Remands Suit vs. Rockwell to State Court ASBESTOS UPDATE: Ct. Denies Summary Judgment in Suit vs. Sovereign ASBESTOS UPDATE: Sealy Corp. Has No Plan to Renovate Plants Yet ********* COSTA CONCORDIA: Survivors Say Too Early for Class Action --------------------------------------------------------- KOB.com reports that just 10 days after a cruise ship ran aground off Italy, the compensation battle is underway even though the fate of some of the passengers on the Costa Concordia is still unknown. Later this week, Miami lawyers are expected to file a class-action lawsuit, asking for $160,000 for each surviving passenger. Two more bodies were recovered on Jan. 23, bringing the confirmed death toll to 15. Officials said 17 others are still missing. Albuquerque's Alex Beach and her husband, Arthur, survived. She said they got a call from the cruise line shortly after they returned home. "They said we would be hearing from them shortly on a compensation package. That the entire cruise will be compensated and they would get back to us on what the further compensation will be," Mrs. Beach said. She also expressed that it is too early to talk about the class- action lawsuit that will be asking for $160,000 for each survivor. Mrs. Beach said her and her husband have already received calls from lawyers. "But that is not something we're jumping on. We're waiting to see what kind of compensation package they're going to offer us," she said. The cruise line has said it will give full refunds to all 4,000 passengers who were on the ship. It is also offering a 30% discount for survivors who want to go on future cruises. COSTA CONCORDIA: Lawyer to File Class Action in Miami v. Parent --------------------------------------------------------------- Christina Vazquez, writing for Local10.com, reports that a personal injury attorney says he is working on filing a class- action lawsuit in Miami on behalf of passengers on the Costa Concordia, but a maritime attorney is critical of the suit. Attorney Mitch Proner, who is based in New York, said the ship's disgraced captain may be taking the heat, but the entire company is at fault -- all the way up to Costa's parent company, Miami- based Carnival Cruise Lines. That is why he's working to file the suit in Miami by Jan. 25, he said. Hundreds of passengers will seek $160,000 each, more for those with injuries -- a total that will reach more than $500 million if all the ships passengers are paid. South Florida board certified maritime attorney Jerry Hamilton is critical of the pending lawsuit. He argues that rarely, if ever, has a suit related to a cruise line survived a legal challenge when it comes to the ticket's venue clause. Mr. Hamilton also thinks in this case, the individualized injuries don't meet the legal level of a class-action suit because it would be hard to show that everyone involved was damaged in the same way. "This would be a frivolous lawsuit if filed in Miami against Carnival," Mr. Hamilton said. "The lawyers filing this suit would potentially subject themselves to monetary sanctions entered against them by the Court." Meanwhile, a survivor told Local 10's Ms. Vazquez that Costa called on Jan. 23, offering the Concordia passenger five free psychological counseling sessions. Costa spokesman Buck Banks said on Jan. 24 that the company does not have a statement about that at this time. The passenger also received an e-mail from the company. Mr. Hamilton can be reached at: Jerry D. Hamilton, Esq. HAMILTON, MILLER & BIRTHISEL LLP 150 Southeast Second Avenue, Suite 1200 Miami, FL 33131 Telephone: (305) 379-3686 E-mail: JHamilton@hamiltonmillerlaw.com DRESDNER KLEINWORT: Former Investment Bankers File Class Action --------------------------------------------------------------- Jillian Berman at The Huffington Post, citing The New York Times, reports that investment bankers are banding together to reportedly sue their former employer, claiming the bank owes them tens of millions of dollars in unpaid bonuses. A group of 104 former investment bankers for the now-defunct Dresdner Kleinwort are suing their former employer for $66 million, claiming the bank failed to pay them the guaranteed bonuses -- or bonuses used in an aim to retain workers -- that they were promised at the end of 2008, The New York Times reports. The bank fell into crisis, along with the rest of the financial system, and its parent company was ultimately taken over. It's rare for a group of former employees to file a class-action lawsuit over bonuses since bonuses are usually discretionary, according to the NYT. But guaranteed bonuses are somewhat of a different animal -- they're promised to especially talented workers or new hires in an effort to retain them -- and they're making a comeback. Banks boosted their use of the one-year guaranteed bonus for new hires in 2010 amid pressure to recruit stellar senior staff, according to the Institute for International Finance, an industry advocacy group. But discretionary bonuses are stoking some ire among some bankers. This winter a group of bankers in the U.S. threatened to quit their jobs at the Jefferies group if their bonuses weren't up to snuff, according to the New York Post. Fears of smaller bonuses aren't unique to employees at Jeffries. Across the financial industry, companies are poised to dole out a little less year-end cash. Anxiety over the state of the global economy, new regulations, slow dealmaking and public ire at banks likely pushed banks to slash their bonus pools to the lowest level since the 2008 financial crisis, according to The Wall Street Journal. Morgan Stanley, for one, announced earlier this month that it would cap all of its cash bonuses this year at $125,000, while top executives won't receive any cash bonuses, according to a separate NYT report. Multiple estimates predict that Wall Street bonuses will fall this year by a minimum of 20%, if not more. At Goldman Sachs, bonus day turned into a "bloodbath," one mid-level employee told CNBC last week, as some workers were told that they weren't receiving bonuses at all and even high-level employees learned that their compensation could be cut in half. Workers may have reacted in a dramatic fashion because they didn't prepare themselves adequately for the hit. More than 60% of Wall Street workers said in an October survey that they expected their bonuses to be in line with or higher than last year's. FACEBOOK INC: Accused of Secretly Collecting Users' Information --------------------------------------------------------------- Ryan Ung, Chi Cheng, and Alice Rosen, on Behalf of Themselves and All Others Similarly Situated v. Facebook, Inc., Case No. 1-12-CV- 217244 (Calif. Super. Ct., Santa Clara Cty., January 24, 2012) arises from Facebook's alleged surreptitious use of the "Like" button and "Facebook Connect" to collect and store sensitive, private, and personally identifiable information in violation of the California Constitution and the California Penal Code. The Plaintiffs allege that Facebook used the "Like" button and Facebook Connect to collect their browsing history and personally identifiable information without their consent using Facebook's "datr tracking cookie," which was found in their computers. The Plaintiffs contend that they were not aware that Facebook was collecting their personal information and, had they been aware, would not have consented to this. Mr. Ung is a resident of San Francisco, California. He is a Facebook member, who visited Web sites that display the Facebook "Like" button, including anime44.com and crunchyroll.com. Mr. Cheng and Ms. Rosen, also residents of California, are non- Facebook members, who visited Web sites in the Facebook Connect network and subsequently visited a Web site displaying the Facebook "Like" button. The Plaintiffs are represented by: Jeff S. Westerman, Esq. David E. Azar, Esq. MILBERG LLP One California Plaza 300 S. Grand Avenue, Suite 3900 Los Angeles, CA 90071 Telephone: (213) 617-1200 Facsimile: (213) 617-1975 E-mail: jwesterman@milberg.com dazar@milberg.com - and - Sanford P. Dumain, Esq. Peter E. Seidman, Esq. Melissa Ryan Clark, Esq. MILBERG LLP One Penn Plaza New York, NY 10119 Telephone: (212) 594-5300 Facsimile: (212) 868-1229 E-mail: sduman@milberg.com pseidman@milberg.com arado@milberg.com - and - Michael R. Reese, Esq. Kim Richman, Esq. REESE RICHMAN LLP 875 Avenue of the Americas, 18th Floor New York, NY 10001 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 E-mail: mreese@reesrichman.com GOVGUAM: Class Action Over Tax Refunds Can Move Forward ------------------------------------------------------- Kevin Kerrigan, writing for Pacific News Center, reports that a lawsuit that seeks payment of all past due tax refunds has survived a dismissal motion brought by GovGuam and won Class Action status from visiting District Court Judge Consuelo Marshall. The lawsuit was filed in April of last year by Attorney Ignacio Cruz Aguigui on behalf of Rea M. O. Paeste and others who want the court to order GovGuam to "adjudge, decree and award Plaintiffs and the Class all amounts duly owed by [GovGuam] . . . for all unpaid income tax refunds." Plaintiff's attorney Mr. Aguigui told PNC News on Jan. 24 that they are pleased with the Judge's decision because their case can now move forward. Beyond seeking payments of the still outstanding tax refunds, he said their aim is "institutional reform." They want GovGuam to create a system that will "properly handle and distribute tax refunds in a timely fashion." GovGuam sought dismissal on various grounds including failure of the plaintiffs to exhaust their administrative remedies for tax refunds and GovGuam's immunity from the claims. However, curiously, GovGuam withdrew its motion to dismiss on the grounds of mootness on Jan. 15. That motion had argued that the tax refund bond authorized and issued last year satisfied the complaint made by the plaintiffs. But that argument was not considered in the Judge's decision because it was withdrawn, in a terse one page motion filed Jan. 17 of this year. In her decision announced from the bench, Judge Marshall rejected the dismissal motion, agreed to grant Class action status to the plaintiffs and ordered the parties to submit a joint status report with scheduling deadlines. Mr. Aguigui can be reached at: Ignacio Cruz Aguigui, Esq. LUJAN AGUIGUI & PEREZ LLP DNA Bldg Ste 300 238 Archbishop Flores St Hagatna, GU 96910 Telephone: (671) 477-8064 E-mail: iaguigui@yahoo.com GOV'T OF CANADA: Faces Class Action Over First Nations Status ------------------------------------------------------------- Michael Gormantruro, writing for Herald News, reports that a Truro man is at the center of a class action over the denial of First Nations status based on what he alleges is willful discrimination. Christopher Robson's statement of claim, filed on Jan. 19 in Nova Scotia Supreme Court in Halifax, lists the federal departments of Indian and Northern Affairs (now known as Aboriginal Affairs and Northern Development), National Revenue and Health as defendants, as well as the provincial Finance Department and the former provincial Fisheries and Agriculture Department. Mr. Robson alleges the defendants created "a societal wall" between him and his "Indian culture." In an interview Jan. 23, Mr. Robson, 41, said his inability to receive First Nations status has affected his sense of identity. "Growing up and living in Toronto, I wasn't Indian. Indian people had status. If you didn't have status, you weren't Indian. I look Indian, I've got the color and everybody calls me Indian, but I wasn't." Mr. Robson was born in Toronto. When his parents separated, his mother moved home to Nova Scotia and he stayed in Toronto, where he operated his own flooring business until 10 years ago when he moved to Nova Scotia. Had he been able to move to a reserve with his mother, Mr. Robson said he would have moved when she did. "If I could have (grown) up on the reserve, I could have saved a lot in rent," he said. "I could fish and hunt and stuff like that . . . . If I would have had my status, I would have definitely moved here." Although he is glad to be living and working in Nova Scotia, Mr. Robson said it has been difficult finding a sense of place. "I didn't have (any culture) until I came back and then I'd be hanging around with the Indians living on the reserve and they're telling me, 'You're not an Indian until you've got status.'" The claim says the denial of status has resulted in Mr. Robson and others like him paying taxes, health-care costs and other fees they should not have. They have also missed out on job, program and educational opportunities and are at a disadvantage in trying to become closer with their heritage and culture. "The plaintiff has made significant life choices and decisions based on the understanding that he was not eligible for Indian status," reads the claim. "As a result of the defendants' deceitful conduct, acts, omissions, wrongdoings and breaches of legal duties and obligations of the defendants, the plaintiff and class has suffered injury and economic loss and damages." The claim seeks various declarations from the government departments, as well as an aggregate monetary award, other damages and prejudgment interest. The matter boils down to a question of gender bias. Mr. Robson's grandmother lost her First Nations status when she married a non-native man. She regained it in 1985 after a change to the Indian Act. While the change granted Mr. Robson's mother First Nations status, it didn't extend to Mr. Robson because under provisions of the Indian Act, "the grandchild of a woman conceived by way of a non-Indian father could not, unless that grandchild's parent married an Indian themselves, receive Indian status." The claim alleges gender-based discrimination because "the grandchild of an Indian man who married a non-Indian woman would, however, receive Indian status." The claim alleges the decision violates the Charter of Rights and Freedoms. As precedent, it points to the 2009 decision in McIvor vs. Canada where "certain provisions of the Indian Act were declared unconstitutional . . . by virtue of gender discrimination." In that case, the court suspended its decision to give Parliament time to amend the act. That spawned Bill C-3, which would grant people in Mr. Robson's position First Nations status. It received royal assent on Dec. 15, 2010, but has yet to be declared in force. Mr. Robson's claim, however, says that Bill C-3 is, in itself, discriminatory because it would preclude him from passing status on to his own children because his status would be traced back to his grandmother. There would be no such problem if it were his grandfather, says the claim. Sharon McIvor, a lawyer and academic in British Columbia, continues to advocate against Bill C-3. Even if steps are being taken to address the issue faced by Mr. Robson and people like him, his claim alleges Aboriginal Affairs and Northern Development denied people status despite knowing it was discriminatory. "In light of the McIvor ruling, the plaintiff and the class have always had, since 1985, the right to seek Indian status on or after their 16th birthday, a fact which remains true, notwithstanding the government's denial of that right for the past 26 years." And while it is Aboriginal Affairs and Northern Development alone that grants First Nations status, "this responsibility does not release the other defendants from liability for inappropriately applying legislation and regulations under their authority to Indians, or those eligible for registration, such as the plaintiff." "All government actors are bound by the same constitutional obligations toward aboriginal people." None of the claims have been tested in court. The departments have not filed their defenses. LEE CARTER: Recalls 25,000 Infant Rattles Due to Choking Hazard --------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Lee Carter Co., of San Francisco, California, announced a voluntary recall of about 25,000 infant rattles. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The rattle's handle is small enough to fit into a child's throat, posing a choking hazard and violating federal rattle standards. No incidents or injuries have been reported. The recalled rattles are made out of multi-colored, woven plastic and have a bell inside. They measure about 4 1/2 inches long. "Made in Mexico" and "Lee Carter Company" are printed on a tag on a purple plastic loop at the end of the rattle's handle. A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12093.html The recalled products were manufactured in Mexico and sold at various Mexican specialty craft stores nationwide from February 2001 through October 2011 for about $4. Consumers should immediately take the recalled rattles away from infants and return them to Lee Carter Co. for a full refund or credit towards a replacement product. For additional information, consumers should call Lee Carter Co. collect at (415) 824-2004 anytime, or visit the firm's Web site at http://www.leecartercompany.com/ LEE CARTER: Recalls 7,000 Packs of Wrestling Action Figures ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Lee Carter Co., of San Francisco, California, announced a voluntary recall of about 7,000 packs of Super Luchamania Action Figures. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The surface paints on the action figures contain excessive levels of lead which is prohibited under federal law. No incidents or injuries have been reported. The recalled Mexican wrestling Super Luchamania action figures were sold in packs of 12. The multi-colored action figures are plastic, have plastic capes and measure about four inches tall. "Super Luchamania" is printed on the action figures' packaging. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12092.html The recalled products were manufactured in Mexico and sold at various Mexican specialty craft stores nationwide from June 2000 through October 2011 for between $12 and $14 per pack. Consumers should immediately take the recalled action figures away from children and return them to Lee Carter Co. for a full refund or credit towards a replacement product. For additional information, consumers should call Lee Carter Co. collect at (415) 824-2004 anytime, or visit the firm's Web site at http://www.leecartercompany.com/ PRUDENTIAL FINANCIAL: May Face Class Action Over Death Benefits --------------------------------------------------------------- Darla Mercado, writing for Investment News, reports that a death benefit lawsuit filed in Illinois against Prudential Financial Inc. and MetLife Inc. could lead to class-action lawsuits from beneficiaries. The state of Illinois has just unsealed a lawsuit filed by Total Asset Recovery Services LLC against the two massive carriers, alleging that the insurers owed the state some $524 million in unclaimed death benefit proceeds that should have been escheated to Illinois. Further, TARS says the state whistleblower act entitled Illinois to collect treble damages for a total of $1.57 billion. The case is a qui tam suit, meaning it's brought on the state's behalf and Illinois' attorney general can decide to join as a plaintiff. News of the suit, which was filed last January, was first reported by The Wall Street Journal. The case could give rise to class action suits filed by beneficiaries who haven't received their death benefit proceeds. "It wouldn't be a surprise if there were an angle for similar consumer-based class action suits that could piggyback on these state recovery laws," said Steven B. Davis, partner at Stradley Ronon Stevens & Young LLP. The complaint, filed in the circuit court of Cook County, is the latest chapter in the unclaimed death benefits debacle. Last spring, state treasury departments and controllers shed light on carriers' use of the Social Security Administration's Master Death File to terminate annuity payments on deceased individuals -- and the companies' failure to use the list to identify dead individuals whose death benefits became payable to beneficiaries. In situations where beneficiaries couldn't be located, the proceeds are to be submitted to the states under escheatment law. The billion-dollar amount TARS is asking for dwarfs the amounts carriers have paid or have reserved in anticipation of future claims. Prudential, for instance, is reserving $99 million for claims tied to its financial services unit and about $40 million for its closed block of life insurance business. Meanwhile, MetLife is reserving $117 million. Mr. Davis can be reached at: Steven B. Davis, Esq. STRADLEY RONON STEVENS & YOUNG LLP 2005 Market Street, Suite 2600 Philadelphia, PA 19103 Telephone: (215) 564-8714 E-mail: sdavis@stradley.com SAFELITE SOLUTIONS: CSRs' Class Action Nears Settlement ------------------------------------------------------- Penny Stacey, writing for glassBYTES, reports that representatives of Safelite Solutions have reached an agreement on the "essential terms" of a settlement with the plaintiffs in a class action suit filed by several current and former customer service representatives (CSRs) in August 2010, according to court documents. The parties currently are working to finalize the settlement and anticipate presenting it to the court for review in early February, according to a joint motion by both plaintiffs and defendants asking for a stay on the proceedings until that point is reached. The suit, which recently was expanded to include sales representatives for the company, alleges that CSRs' paid hours are based on their time logged into the company's computer system and do not account for the time it takes for them to boot up their computers prior to logging on to the company's phone system. According to court documents, the settlement was reached after private mediation between the parties. The motion also outlines the parties' plans if the settlement is not approved by the court. "If the settlement is not approved, the parties would request a scheduling conference to set new dates for discovery and motions practice," reads the motion. The terms of the settlement have not been disclosed. SAMSUNG ELECTRONICS: FTC Supports Price-Fixing Class Action ----------------------------------------------------------- Kim So-hyun, writing for Korea Herald, reports that the nation's antitrust watchdog said on Jan. 24 it will support a consumer class action lawsuit for the first time against Samsung Electronics and LG Electronics, which rigged prices for domestic appliances. The Fair Trade Commission slapped the two companies with fines of KRW44.6 billion ($39.6 million) for colluding to fix prices of washing machines, flat screen televisions and laptop computers. "We will provide financial aid for a class action suit led by the Green Consumer Network in Korea as it searches for victims of price rigging by Samsung Electronics and LG Electronics," an FTC official said. The antitrust watchdog decided to support the suit as it concluded that the fines were not enough relief for consumer damages. The companies got the fines cut under a leniency policy. The commission has already secured KRW100 million to aid the legal action. The Green Consumer Network in Korea has delayed the search for plaintiffs, which it had previously planned to complete by Feb. 14, to the end of next month in consideration of the FTC aid. The commission's funds will be used for activities such as publishing advertisements on Internet portals. Consumers who purchased the price-rigged models between 2008 and 2009 can join the class action lawsuit by submitting the receipts, product registration cards, a copy of their ID cards and letters of attorney to the Green Consumer Network in Korea. The cost for the lawsuit is KRW20,000. The nongovernmental organization will assess the amount of damage for each consumer and add KRW500,000 in mental solatium to work out the entire compensation. "Consumers can get compensation of up to triple the actual damage in the United States, but that is not the case in Korea. We are preparing for the lawsuit to send a warning message to companies that just got off with reduced fines under the leniency policy," Lee Joo-hong, a senior staff member of the Green Consumer Network, said. Samsung Electronics and LG Electronics were caught raising the prices of flat screen televisions, washing machines and laptop computers by up to KRW200,000 through price rigging and reducing sales promotion fees as their profits were expected to fall on the weakened Korean currency and slowing consumption. SILO BAKERY: Faces Class Action Over Alleged Food Poisoning ----------------------------------------------------------- Bianca Hall, writing for The Canberra Times, reports that ten people have signed up to a class action lawsuit against speciality Kingston eatery Silo Bakery, and there may be more. The gourmet bakery and cheese shop, popular with politicians and their staffers, was closed for three days in early December after 22 people became sick with salmonella. It is alleged the group became sick after eating chicken caesar rolls made with fresh egg mayonnaise prepared in the bakery. Six people were hospitalized. Slater and Gordon associate Jonathon May said his firm was acting for 10 people, "with a few pending enquiries" to the firm. "We allege that the Silo Bakery was negligent in the way it prepared and stored its food," Mr. May said. "We allege this resulted in a number of cases of food poisoning which has had a severe impact on all our clients. "The nature and severity of the injuries vary from client to client, but in general include severe nausea, stomach cramps, diarrhea, muscular pain, headaches and other complaints. Up to five of our clients were hospitalized." It is understood Silo Bakery has engaged its own solicitors, although proceedings have not started. Silo's owners declined to comment on the matter. But it is believed the class action will seek wages and other expenses the salmonella victims lost during their illnesses, as well as compensation for their pain and suffering. On December 7, ACT Health Directorate chief health officer Paul Kelly said salmonella had been found in mayonnaise containing raw egg. "All cases reported purchasing ready-to-eat food from the implicated business on Friday 25th or Saturday 26th November," he said. "Food safety inspections of the implicated business have been conducted, with the premises being closed for cleaning and high-risk foods being destroyed." An ACT Health spokeswoman said the directorate's investigation into the matter was continuing. STATE STREET: Faces Class Action Over Fiduciary Breaches -------------------------------------------------------- Courthouse News Service reports that a federal class action claims State Street Bank and Trust, as custodian of trust accounts, "listed false information on client account statements," and "made unauthorized cash disbursements from the custody accounts." A copy of the Complaint in Davies v. State Street Bank and Trust Company, et al., Case No. 12-cv-10128 (D. Mass.) (Gorton, J.), is available at: http://www.courthousenews.com/2012/01/24/StateSt..pdf The Plaintiffs are represented by: Theodore M. Hess-Mahan, Esq. HUTCHINGS, BARSAMIAN, MANDELCORN & ZEYTOONIAN, LLP 110 Cedar Street, Suite 250 Wellesley Hills, MA 02481 Telephone: (781) 431-2231 E-mail: thess-mahan@hutchingsbarsamian.com - and - Lynn Lincoln Sarko, Esq. Derek W. Loeser, Esq. Tana Lin, Esq. Laura R. Gerber, Esq. David J. Ko, Esq. KELLER ROHRBACK, LLP 1201 3rd Avenue, Suite 3200 Seattle, WA 98101 Telephone: 206-623-1900 E-mail: lsarko@kellerrohrback.com dloeser@kellerrohrback.com tlin@kekkerrohrback.com lgerber@kellerrohrback.com dko@kellerrohrback.com TAMMANY HOLDING: Faces Environmental Class Action ------------------------------------------------- Kyle Barnett, writing for The Louisiana Record, reports that a Slidell developer has been named in a class action lawsuit for alleged environmental effects stemming from using its property as a staging area in the demolition of a bridge. Daniel Wagner, his family and other area residents filed suit on Jan. 17 in the Orleans Parish Civil District Court against Tammany Holding Company LLC and other parties. The plaintiffs claim the holding company entered into agreement with other contractors demolishing the old I-10 twin span bridge that was damaged by Hurricane Katrina. The filing alleges a residential area is being used as a staging area where large pieces of concrete are broken into smaller pieces and that through that process high levels of concrete dust and particulate matter accumulates on the properties of nearby residents. The plaintiffs assert the dust causes adverse health effects to those in the community. It is also alleged that the ground vibrations caused by the work have cracked the foundations of nearby homes. The defendants are accused of not obtaining the correct permits for the job. The plaintiffs also claim air quality tests obtained from the site have revealed particulate matter in the air above an acceptable level and that the defendants have failed to reduce airborne dust emissions. The plaintiffs claim the defendants are causing physical annoyance and discomfort to neighbors who are being deprived of reasonable enjoyment of their property. The plaintiffs are seeking a judgment against the defendants that would force them to acquire all necessary permits, install air pollution controls, take reasonable precautions to prevent particulate matter from becoming airborne, work in a manner that prevents clouds of dust and that all work complies with parish law regarding nuisance. The plaintiffs are being represented by: Stuart Smith, Esq. SMITH STAG, LLC 365 Canal Street, Suite 2850 New Orleans, LA 70130 Telephone: (504) 593-9600 The case has been assigned to Division F Judge Christopher J. Bruno. Case number 2012-00453 UMPQUA BANK: Wants Customer Claims Settled Through Arbitration -------------------------------------------------------------- Brent Hunsberger, writing for The Oregonian, reports that Umpqua Bank is joining other major financial services firms in barring customers from filing class-action lawsuits, requiring instead that they arbitrate disputes privately, outside of a courtroom. The moves come after a series of U.S. Supreme Court rulings upholding the right of companies to keep consumer disputes from going before a judge or jury. It also comes as banks battle numerous class-action lawsuits over alleged deceptive practices. Wells Fargo & Co. drew customer ire this winter when it announced it was strengthening its mandatory arbitration requirement. JPMorgan Chase & Co. is giving customers a window to opt out of its new arbitration agreement. Umpqua, the largest Oregon-based bank and a division of Portland- based Umpqua Holdings Corp., inserted the arbitration requirement in a new deposit agreement mailed to customers last week. It takes effect Feb. 15. The bank will require checking, money-market, CD and savings account holders to resolve disputes through an arbitration service in Portland. It also will waive the customer's right to bring claims as part of a class-action lawsuit or class arbitration. "At the end of the day, arbitration is less expensive and faster, should there be an issue for both us and the individual consumer," said Rick Calero, executive vice president for community banking at Umpqua, in an interview on Jan. 23. Competitors are taking similar steps. Along with waiving the right to bring a class-action, Wells Fargo's new agreement specifies that "you and the bank are waiving the right to a jury trial or trial before a judge in a public court." Chase is giving existing checking and savings customers between Feb. 1 and April 2 to opt out of binding arbitration. New customers can opt out within 60 days of opening an account. All three banks are fighting national class-action lawsuits brought by customers alleging they deceptively re-ordered debit transactions to inflate overdraft fees. Mr. Calero said Umpqua's change was driven more by the need to make agreements uniform across all its branches after acquisitions left it holding different agreements. "It's more of a coincidence that we're all doing it," Mr. Calero said. Consumer arbitration agreements aren't new. U.S. Bank has long required customers arbitrate disputes, a spokeswoman said. But language specifically waiving a consumer's right to join a class action is less common. Starbucks Corp., for instance, requires its prepaid rewards card holders to forgo class actions and travel to Seattle to arbitrate their claims, unless the company agrees to another location. Advocates of arbitration say it's a more appropriate and fair way to resolve consumer disputes, many of which involve relatively small amounts of money. "Arbitrators have the right to award punitive damages, and they do," said James Damis, administrator and founder of the Arbitration Service of Portland Inc., which will handle Umpqua claims. "It's just when they do, they don't go nuts." Consumer advocates counter that arbitration favors companies by keeping disputes private, threatening consumers with higher costs and prohibiting courts from reviewing most rulings. "Class actions have historically been an effective way of checking corporate malfeasance," said Delicia Reynolds, legislative director for the National Association of Consumer Advocates in Washington, D.C. "We're still struggling with the effects of the financial crisis. Now's not the time to let companies off the hook." Consumer arbitration clauses often are tucked in the fine print of multi-page service contracts. While Wells Fargo and Chase prominently noted the new language, a letter accompanying Umpqua's new agreement from Mr. Calero did not highlight the change. On Jan. 23, Mr. Calero said the many versions of the agreements made it too difficult to point out the change. "We just couldn't do it this time around," he said. Under Umpqua's new agreement, customers will have to pay $300 to $500 to file an arbitration claim with Mr. Damis' service. Arbitrators then bill at a cost of up to $200 an hour. An arbitrator can order the losing party pay the winning party's arbitration costs. The loser can only appeal in court to allege bias or fraud in the process, but not to challenge the accuracy or reasonableness of an arbitrator's decision, Mr. Damis said. Many states have tried to restrict arbitration agreements. But recent Supreme Court decisions have reversed one key limit and reaffirmed the practice. In April, the Supreme Court ruled that the Federal Arbitration Act allows companies to prohibit consumers from arbitrating claims as a group, or a class. This month, the High Court backed a credit- card company's right to resolve complaints in binding arbitration. The 2010 Dodd-Frank financial reform law allows the new Consumer Finance Protection Bureau to limit mandatory arbitration in banking. But it must first study the need for such regulations. "The CFPB already has too much on its plate and insufficient time to focus on this relatively unimportant area," said Alan Kaplinsky, an attorney in Philadelphia who helps banks use such agreements. VALLE FOAM: Files for Ch. 15, Seeks CCAA Case Recognition --------------------------------------------------------- Deloitte & Touche Inc., as the court-appointed monitor, and foreign representative, filed Chapter 15 petitions for Valle Foam Industries (1995) Inc., Domfoam International Inc., and A-Z Sponge & Foam Products Ltd. (Bankr. N.D. Ohio Case Nos. 12-30214, 12-30125, 12-30128). Deloitte & Touche is seeking the U.S. court's recognitions of the Valle Foam Group's proceedings under Canada's Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended, pending before the Ontario Superior Court of Justice (Commercial List). Deloitte said that the Valle Foam Group is in an industry in transition and experiencing significant pressures from overseas production sources. Valle Foam and Domfoam each suffered a loss in excess of C$5 million in fiscal 2011. A-Z also suffered a loss of C$50,000. Valle Foam and Domfoam were recently charged with, and on Jan. 5, 2012, pled guilty to, certain offenses under the Canadian Competition Act, RSC 1985, c. C-34 in connection with a price fixing conspiracy conducted with other members of the industry. Valle Foam was fined C$6.5 million, and Domfoam was fined C$6 million. In connection with the alleged price fixing, Valle Foam, Domfoam and A-Z have been named as defendants in Canada in five class action lawsuits, and in the United States in both class action lawsuits and direct actions brought by various opt out plaintiffs. The proposed class plaintiffs allege that Valle Foam and Domfoam are jointly and severally liable for damages in excess of $100 million to class members. The Chapter 15 proceedings have been initiated to obtain an order staying present and new claims against Valle Foam, Domfoam, and A-Z so that they can complete their restructuring in Canada. The Valle Foam Group plans to restructure its business operations and has sought the protection of the Canadian Court to give it time to put together and execute its Plan. The Valle Foam Group's goals are to protect as many of the temporary and full time Canadian jobs as possible and to secure the greatest possible value for its assets. The goals of the restructuring Plan may require a sale of at least one of the Valle Foam Group. The Valle Foam Group has approximately C$9 million of unsecured debt, mostly trade debt (C$5.97 million), accrued payroll (C$1.268 million), accrued sales tax (C$218,000), and other liabilities of (C$1.562 million). WALMART: Still Faces Sex Discrimination Suit ------------------------------------------- Lila Shapiro, writing for The Huffington Post, reports that sex discrimination is alive and well at Walmart, say lawyers who have interviewed thousands of female employees in the years since Betty Dukes and a handful of others first sued the company alleging widespread gender bias. Although the Supreme Court ultimately overturned the Dukes case last summer -- siding with Walmart that the women did not share enough in common to qualify as a class in what would have been the largest class action discrimination suit in history -- plaintiffs' lawyers haven't given up, and neither have the women. "When we first began investigating, the discrimination described by scores of women was more unvarnished," said Joseph M. Sellers, the lawyer who argued Dukes v. Wal-Mart before the Supreme Court and is forging ahead with this new litigation. Mr. Sellers and the other plaintiffs' lawyers have not yet been authorized to conduct a new formal investigation into the company's practices. However, based on anecdotal evidence from ongoing interviews with former and current employees, Mr. Sellers said that there appears to be more sensitivity in the way issues of gender are spoken about in the Walmart workplace. But in other critical ways, Mr. Sellers said the company is still falling short, especially when it comes to fair pay and promotions. "Walmart seems much more aware of issues of gender discrimination than when we first talked to the women a decade ago," Mr. Sellers said. "But I'm not convinced from the interviews we've had so far that it's been much more successful in solving the problem." In California and Texas, employees from the original complaint, along with more women who have since stepped forward, are filing new suits on the issue. And the number of regional suits is expected to mount in coming months. However, many legal experts think these new suits may share the same fate as the original, in large part as a direct result of the Supreme Court's ruling last June. Walmart has long denied any wrongdoing. Although when previously asked about the suit, the company emphasized that its corporate policy forbids discrimination, encourages diversity and ensures fair treatment. When contacted last week, Walmart's legal counsel declined to repeat those assertions. Instead, the counsel pointed to the Supreme Court's ruling, saying in these more recent suits, too, the women lack enough in common to call themselves a class. "The plaintiffs' lawyers have failed to come to grips with the Supreme Court's decision," said Theodore J. Boutrous Jr., Walmart's lead counsel. "This Texas complaint does not come close to meeting the requirements for class certification, and relies on the very same discredited theories and arguments that the Supreme Court rejected when it reversed certification of the nationwide class in the Dukes case last June." Last week, in Texas, a group of Walmart women filed an expanded class action lawsuit, alleging discrimination against female employees at Texas stores. The complaint was first filed last October on behalf of plaintiff Stephanie Odle, one of the original named plaintiffs in the Dukes case, but now includes six additional named current and former female employees representing a class of more than 50,000 Texan women. The complaint also includes recent instances of discriminatory practices from the past several years. The latest charges lack some of the overt sexism from the original suit, but continue to allege unfair treatment in the workplace. Back in 2001, for example, one plaintiff involved in the original class action suit testified that she was advised by a male manager to "blow the cobwebs off my makeup and to doll up" if she wanted to advance at the company. But in the Texas suit, the most recent charge of discrimination from plaintiff Pamela Collins, a current Walmart employee in Ennis, Texas, has no such colorful language. Although she came to Walmart with 18 years of retail experience, and despite strong performance reviews, MS. Collins alleges she was passed over for multiple promotions, including once for a much younger male colleague with almost no experience. Ms. Collins said she repeatedly called her regional and district managers, leaving messages about her interest in a promotion, but neither manager ever returned her phone calls. The suit charges ongoing, widespread denial of promotions and equal pay to female employees throughout Texas, and cites many specific examples, such as one employee who says she confronted a district manager back in 2003, (after Betty Dukes filed her initial complaint) when she learned that a less experienced male colleague was earning more. The manager told her, "That's just the way it is. Men always get paid more." Another employee was told that there "were already enough female assistant managers, so she would just be made a deli lead," while store managers in Houston and Abilene allegedly justified paying less to female employees on the grounds that the male employees "had families to support," according to the suit. When an employee at the Abilene store complained, her manager reportedly told her she should be "happy with the money she made." Last week, Walmart filed a motion to dismiss the California suit, heavily quoting from the Supreme Court's ruling to argue that the plaintiffs still lack enough in common to be considered a class. The Supreme Court ultimately sided with Walmart back in June, ruling as such because the women worked in so many different places and under so many different managers, all of whom have discretion to make decisions regarding pay and promotions. "Respondents wish to sue for millions of employment decisions at once," Justice Antonin Scalia wrote in the lead opinion for the court in the 5-4 decision last June. "Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members' claims will produce a common answer to the crucial discrimination question." The same holds true, Walmart argues, in Texas and California. The plaintiffs' lawyers say that these new regional suits are in compliance with the new class action guidelines determined by the Supreme Court last summer, and that they have the evidence to prove there is enough connecting each woman's claims to certify them as a class. But legal experts think that courts will be likely to side with Walmart after the Supreme Court's precedent. Brian Fitzpatrick, a law professor at Vanderbilt University who specializes in class actions and just taught a class on Dukes v. Wal-Mart, thinks that the regional class actions are likely to fail for the same reason the nationwide one did: Women at different stores had different managers who made decisions for different reasons. "Nothing is crystal clear," Mr. Fitzpatrick said, "but if I were a betting man I'd say this suit would fail. It's almost Don Quixote-esque." Judge Scalia's opinion, Mr. Fitzpatrick said, essentially means that a region like Texas is still too large. Because of the way that Walmart is structured, the suits may need to be filed on a much smaller scale: manager by manager. Hal Gillespie, the co-lead counsel on the Texas case, is feeling more optimistic. The court in Texas where the suit is filed is in a conspicuously conservative district that has long-viewed class action discrimination suits unfavorably. In Mr. Gillespie's mind, the court's ruling actually paved the way for certain class action suits, so long as they followed the outlines laid out by the Supreme Court. "I think the Supreme Court decision helps by saying that class actions are permitted under certain circumstances," Mr. Gillespie said. "It gives us guidelines and we absolutely have to follow those guidelines but that's fine, that's what we have to do all the time." But Mr. Sellers, another co-lead counsel on the Texas case, acknowledges that the court's ruling was a major blow. "It's more difficult and expensive and time consuming," Mr. Sellers said. "It's going to consume a lot of resources of the legal system to litigate these cases." Class-action suits were previously the best tool a worker had to fight discrimination at work. While individual suits are expensive and can be exceedingly difficult to prove, a class- action vehicle allowed workers to band together to fight the corporate powers that be. If the courts continue to rule in Walmart's favor, it will be a significant blow to working-class Americans, legal experts say. "As you make it more difficult for people to win in larger groups and require them to file suits based on smaller ones, economically it becomes unfeasible for some people to make their way to court at all," said Ralph Richard Banks, a professor at Stanford Law School who specializes in employment discrimination law. Ultimately, Mr. Banks said, this means that, regardless of the merits, "cases go away." Mr. Sellers can be reached at: Joseph M. Sellers, Esq. COHEN MILSTEIN 1100 New York Ave NW Suite 500 West Washington, DC 20005 Telephone: (202) 408-4600 E-mail: jsellers@cohenmilstein.com WILLIS OF ILLINOIS: Misrepresents Sale of Insurance, Suit Says -------------------------------------------------------------- Joseph Spivak, individually and on behalf of a class of similarly situated and aggrieved persons v. Willis of Illinois, Inc., an Illinois corporation and PS Illinois Trust, Case No. 2012-CH-02402 (Ill. Cir. Ct., Cook Cty., January 24, 2012) alleges that the Defendants, in violation of the Insurance Code, misrepresent facts regarding the sale of insurance to renters of their self-storage units. The Plaintiff relied upon the Defendants' misrepresentations in electing to purchase storage insurance from them, according to the lawsuit. Mr. Spivak contends that he would not have done so had he known that it was not required and that it was duplicative of other coverage that he had. He believes that other renters of self-storage units, who have purchased storage insurance from the Defendants, have similarly relied upon defendants' misrepresentations to similar effect. Willis is an Illinois corporation having its principal place of business and doing business in the County of Cook, state of Illinois. PS is an entity doing business in the County of Cook and state of Illinois. The Plaintiff is represented by: Hall Adams, Esq. LAW OFFICES OF HALL ADAMS LLC, ADVOCATES' ROW 33 N. Dearborn St., Suite 2350 Chicago, IL 60602 Telephone: (312) 445 4900 Facsimile: (312) 445 4901 E-mail: hall@adamslegal.net Asbestos Litigation ASBESTOS UPDATE: Mesothelioma Drug Gets "Orphan Drug" Status ------------------------------------------------------------ Mesothelioma is a rare cancer caused by exposure to asbestos. Even though thousands have died from asbestos cancer and diseases, it is still a relatively unknown disease with no cure and often minimally effective treatments. The standard treatment for mesothelioma is usually a combination of surgery (if possible), chemotherapy and radiation therapy. The most common chemotherapy drugs used to treat mesothelioma are cisplatin and pemetrexed. Even these drugs, however, have shown little effectiveness in slowing the progression of disease or increasing survival times. That's why Clapper Patti Schweizer Mason (CPSM), an asbestos law firm based in California, is excited to announce a new drug, CBP501, shown to improve effectiveness of treatment for mesothelioma, was just awarded "Orphan Drug" status by the US Food and Drug Administration (FDA). CBP501, produced by a Japanese biopharmaceutical company, CanBas Co., Ltd., is a novel drug that enhances the anti-cancer cytotoxic activity when used with traditional chemotherapy combinations commonly used to treat mesothelioma. In more simple terms, CBP501 has been shown to increase mesothelioma cancer cell death by blocking the ability of cancer cells to transition completely through the cell cycle, thereby slowing the progression of the disease. CanBas is a drug development biotech company devoted to developing more effective pharmaceuticals and therapies that improve efficacy of treatments and the overall health of those suffering from rare diseases. CanBas has been conducting Phase II Clinical Trials using CBP501 with mesothelioma patients for several years and were just granted "orphan drug" designation by the FDA. According to the FDA, the "Orphan Drug Designation Program provides orphan status to drugs and biologics which are defined as those intended for the safe and effective treatment, diagnosis or prevention of rare diseases/disorders that affect fewer than 200,000 people in the U.S . . ." It is estimated that over 200,000 people will die of mesothelioma worldwide this year, and about 3000 in the United States alone will be diagnosed with this terminal and incurable cancer. Because mesothelioma is considered to be a rare disease -- so rare and deadly that it is difficult to get enough of a patient sample to conduct a Phase III clinical trial -- it meets the FDA criteria for granting CBP501 "orphan drug" status. By receiving this new designation, CanBas will be given tax reductions and also exclusive rights to CBP501 as a mesothelioma treatment for a period of up to seven years post-approval. The new status allows them to continue research and hopefully one day discover a cure for mesothelioma. After reading the results from trials conducted so far, CPSM is hopeful that CBP501 can increase the effectiveness of mesothelioma treatments and extend both survival times and quality of life for their clients coping with mesothelioma. For more information on treatments or to speak with an experienced mesothelioma attorney about how to get financial help to pay for treatments, visit our website or call today: 1-800-440-4262. About CPSM For more than 30 years, Clapper Patti Schweizer & Mason has represented clients from all over the nation and won multimillion dollar verdicts on their and their family's behalf. CPSM offers the highest quality of service and care to their clients, understanding how heartbreaking and challenging it is to cope with a diagnosis of mesothelioma. ASBESTOS UPDATE: Kin of Asbestos Cleaner Talk About Exposure ------------------------------------------------------------ Fred Attewill of Metro News (UK) reports that the children of an asbestos cleaner, who died from cancer in 1968, have told how they are suffering from irreversible lung damage after coming into contact with dust from their father's work. When Korah Leah came home from his job clearing asbestos his children would fling their arms around him the minute he arrived. As a worker in the 1930s he had no idea he was putting their lives at risk when he hugged the youngsters in his dust-caked overalls. But now, long after his death from cancer in 1968, two of his children have died from asbestos-related illnesses and a further six have irreversible lung damage. "It's a terrible thing to happen to one family," said Maureen McGeogh who lost sisters Marjorie, 67, and Cecelia, 77, within six months of each other. She said her father would be 'covered in dust' when he came home from work as a foreman in Hebden Bridge, West Yorkshire. "We'd all crawl all over him and hug him. I remember my mother shaking his overalls and dust going everywhere. We didn't realize it was dangerous," added Mrs. McGeogh, 73, of Luddenden, West Yorkshire. Her only two siblings not affected by pleural plaques -- which can develop into malignant mesothelioma -- were born after their father left Cape Asbestos in 1958. The family has been denied compensation for years as none of them worked directly with asbestos. ASBESTOS UPDATE: Wash. Contractor Denies Health Code Violations --------------------------------------------------------------- Pat Guth of The Mesothelioma Cancer Alliance reports that the State of Washington has announced that it will fine a Wenatchee- area contractor who they claim "should have known better" when it committed more than a dozen violations while removing asbestos at a local youth center. According to an article in The Wenatchee World, officials claim that Evergreen Asbestos Solutions failed to adhere to state regulations regarding the removal of asbestos, a known carcinogen that can wreak havoc with human lungs if inhaled, causing mesothelioma cancer and other serious lung diseases. The state Department of Labor and Industries (L&I) alleged 14 violations by the company and its owner, Ron Hesselschart, who responded with a statement expressing his belief that there was no danger present for anyone who was in or near the facility, which is known as Solomon's Porch. The work took place last May. However, L&I spokesperson Hector Castro told the media that his agency is concerned for the health of the workers who carried out the asbestos removal tasks but is uncertain if there was any danger to non-workers or anyone who was in or near the building just after the asbestos was abated. A report noted a long list of violations for Evergreen Asbestos including failure to ensure that exposure assessment was performed both immediately before and immediately after the abatement, failure to appoint a competent person to supervise the work, failure to perform clearance monitoring at the completion of the work, and failure to ensure that all surfaces were maintained as free of dusts and waste-containing asbestos. In addition, it was noted that employees performing the work were not wearing protective equipment or clothing and that beards and goatees were not covered by the half face masks that were distributed to these workers, potentially allowing asbestos dust to settle in facial hair. The Cashmere, Washington-based company currently faces a $25,000 fine but Hesselschart, who claims that none of the violations occurred, is appealing the accusations. ASBESTOS UPDATE: Knowledge of Toxic Dangers Existed in 1920 ----------------------------------------------------------- Mark Hall of The Mesothelioma Center relates that new report shines light on Navy's knowledge of asbestos dangers. The U.S. Navy required asbestos and asbestos-containing materials be used to build its ships despite understanding some of the health hazards associated with asbestos exposure, a recent research report concludes. The report "Government and Navy Knowledge Regarding Health Hazards of Asbestos: A State of The Science Evaluation (1900 To 1970)" was created by ChemRisk, a San Francisco-based chemical risk assessment company. Published in December, it highlights the Navy's knowledge and actions regarding asbestos, a well-documented carcinogen. Some believe that this research may provide more insight into why veterans account for as much as one-third of all patients who suffer from mesothelioma, a disease associated with asbestos exposure. Analysis of the Navy's knowledge and actions involving asbestos was divided into three time periods: 1900-1929, 1930-1959, and 1960-1970. The report uncovered that the unique properties and functions of asbestos made it attractive and preferred by the Navy, especially during times of war and rapid military expansion. The toxic material has been known to be a great insulator and to be heat resistant, both chemical characteristics that can be beneficial on a Navy ship. In the document, the researchers stated that "because of the economic importance of asbestos, and its perceived vital role in the war effort, the regulated community and the military held a broad belief that overly restrictive work standards should not be applied to this material." The researchers' discoveries demonstrate that evidence existed in the early-to-mid 1900s in the medical community that proved connections between asbestos and resulting diseases. The report noted that in 1935, a textbook explicitly documented the fact that "sufficient exposure to dust of asbestos in any stage of its processing may cause asbestosis." Whether the Navy knew this same information at the time is unsure. One thing that is apparent, according to the report, is that four years later, the Navy recommended that controls be put in place when handling asbestos, indicating an understanding of the potential dangers that asbestos may pose. Even earlier than that, the authors of the document cite that the toxic mineral was being associated with diseases as far back as 1907. During this time, lung disease was initially being correlated with asbestos exposure, with supporting articles being published in the 1920s. However, because of the presence of complicating diseases like tuberculosis, medical experts were unable to conclusively determine the causes of some cancers. The report states that the Navy continued to mandate that asbestos-containing materials be used on their ships between 1960 and 1970, even as mesothelioma was clearly being linked to asbestos exposure. At the same time, the branch was also recommending that all necessary precautions be performed anytime the toxic material was being handled. Most notably, the report makes a statement that insists that this military branch understood more about asbestos than some would think. "We concluded that the Navy was arguably one of the most knowledgeable organizations in the world regarding the health hazards of asbestos, and that it attempted to implement procedures that would minimize the opportunity for adverse effects on both servicemen and civilians." Furthermore, the document states that "through at least 1970, neither the military nor the private sector believed that the myriad of asbestos-containing products considered 'encapsulated' (e.g. gaskets, brakes, Bakelite) posed a health hazard to those working with them." Such an assertion may not be comforting enough to those affected by the toxic material. This may be just the beginning stages of the discussion as to what the Navy knew and didn't know and whether its actions were in good faith or not. One thing that is certain is the necessity for help for those who have been exposed to asbestos or similar toxins. ASBESTOS UPDATE: Remediation Costs of PA Plant May Top $1.1MM ------------------------------------------------------------- The Mesothelioma and Asbestos Awareness Center reports that clean- up and demolition at a suburban Philadelphia asbestos insulation and paper plant is expected to be completed by summer, making way for a new sewage treatment plant in the city of Norristown, Montgomery County, Pa. According to an article in the Times Herald, the former Nicolet property on Washington Street, owned by the Montgomery County Redevelopment Authority (MCRA), will cost the city more than $1.1 million for asbestos abatement and demolition. The property was originally purchased in 2001 as a potential Brownfield development site. The developer, O'Neill Properties, paid $55,000 for the site, on which they had intended to build multistory apartment complexes. The county purchased the site from O'Neill last year with the hopes of instead building a new sewage treatment plant to replace an old one that frequently experiences sewage overflows. However, due to the nature of Nicolet's manufacturing business, the site at 500 and 600 Washington Street is strewn with asbestos, even though the plant has been dormant for quite some time. There were remnants of asbestos manufacturing in (underground) tanks and in the ground," said Jerry Nugent, executive director of the MCRA. "The asbestos in the 500 (Washington Street) building was in the pipe wrap or tile flooring or the building facade." In addition, the article notes, engineers found tanks, tunnels, trenches, and concrete canals from the days of Nicolet's asbestos processing and many of those were filled with toxic asbestos slurry. A second phase of the clean-up will involve drilling holes throughout the site to see if any ground contamination is present. If so, additional remediation work may be required and will most likely involve the Pennsylvania Department of Environmental Protection. "It has turned out to be a huge job," Nugent said. The Nicolet site has long been a concern for those who live and work in the area, which is located southwest of Philadelphia. The community has long feared the potential of both air and ground contamination caused by the large amounts of asbestos left on the property. Asbestos exposure can cause myriad lung-related diseases including pleural mesothelioma and other cancers. ASBESTOS UPDATE: Cloverleaf Mall Abatement to Complete in February ------------------------------------------------------------------ Shelby Brown at CBS 6 News reports Extensive asbestos abatement is causing some delays in the demolition of the old Cloverleaf Mall in Chesterfield. In fact, half of the building is still standing. However, developers told CBS 6 News' Shelby Brown that the demolition is on schedule, but that the abatement is taking longer than expected. A representative from Crosland Southeast said all of the asbestos must be removed before the building can be torn down. A spokesperson said crews knew they would have to deal with some asbestos, but that there is much more of the substance in the building's west wing, which housed the old J.C. Penny store, than they anticipated. Once the rest of the abatement is completed by mid-February, the final part of the mall is slated to be torn down by mid to late April. Crews are also recycling as much concrete, brick and block from the building as possible using a special crushing area behind the old mall. Workers separate the steel and concrete, which is crushed into a gravel-like material. That will later be used as a street base when crews construct the roads at the site. "I kind of thought it would be torn down by now," said Renata Edler. "But, I guess in the process of development, things take a little while. I understand that." Edler, a faithful shopper at Cloverleaf Mall, said she will always have great memories of the mall, but is excited about what's to come. A new, 123,000-square-foot Kroger anchor store will soon go up in the area of the mall that has already been demolished. That store is expected to open in late 2012. The Stonebridge project will be a mixed use, retail, office and residential development. ASBESTOS UPDATE: Contaminants Delay Work at Idaho College Campus ---------------------------------------------------------------- Julie Wootton at Magicvalley.com reports that when students returned to the College of Southern Idaho campus for the first day of the new semester Tuesday, Jan. 17, they were greeted by the familiar sight of construction. An addition to the Fine Arts Center was originally slated for completion before the new semester began. But delays occurred after asbestos was found under floor tiles in the north hallway. Now, the project will wrap in February. In the meantime, faculty and students are working around the construction. "It will be nice when it gets done," said Brent Jensen, assistant professor of music, although his jazz history classes haven't been affected. Some classes, though, have been shuffled to new locations since two of the main classroom spaces in the building aren't yet useable. "We're just juggling a bit," Fine Arts Department Chairman Chris Bragg said. New features of the building are scheduled to open Feb. 6, while remodeled areas will open Feb. 24. The 7,500-square-foot addition has a $2.88 million price tag. The majority -- about $2 million -- came from an anonymous donation to the CSI Foundation. ASBESTOS UPDATE: Midway's $47,000 Bid Wins Streator Abatement Job ----------------------------------------------------------------- Mywebtimes.com reports that asbestos-laced property at Oakland Park and Sherman Schools in Streator will be removed in June. The Streator Elementary District 44 board approved on Jan. 17 a bid of $47,000 from Midway Contracting Group, LLC, of Tinley Park. The district will pay for the project out of health life-safety funds. Asbestos removal will take place in the boiler room at Oakland Park and the floor tile, mastic, and one-quarter-inch underlayment from the gym and cafeteria at Sherman School. The removal of the asbestos in these two locations should eliminate any future asbestos disruptions in these locations. Substantial completion of the project is expected by July. Following the removal of the asbestos, different contractors will reinstall Sherman floor tile and lining/logo by July and reinsulate the Oakland Park boiler by mid-July. ASBESTOS UPDATE: Abatement of 2 Albuquerque Sites to Finish in Feb ------------------------------------------------------------------ The Associated Press reports that removal of asbestos-contaminated soil has begun at two Albuquerque (N.M.) sites where insulating materials were manufactured from the 1960s through the 1980s. The Albuquerque Journal reports -- http://bit.ly/xBeVg5-- that both sites received and processed tons of asbestos-tainted vermiculite, a mineral used in insulation, fireproofing materials and potting soil. Crews on Jan. 17 began removing the first of up to 5,000 cubic yards of soil from the former Silico Inc. plant. The Environmental Protection Agency says work began on Jan. 14 at a smaller site where contractors must remove an estimated 1,000 cubic yards of soil from the yard of an occupied home and two vacant houses. That site is the former location of the Southwest Vermiculite Co. Both removal projects are expected to be completed next month. ASBESTOS UPDATE: Plaintiffs May "Forum-Shop" Cases to Other States ------------------------------------------------------------------ Ted Frank of PointofLaw.com reports that in the mid-1960s, Lt. Patrick O'Neil served on the USS Oriskany, a 1940s-era aircraft carrier. O'Neil's work in the boiler-room exposed him to asbestos insulation manufactured by Johns Manville, and, decades later, he contracted mesothelioma. O'Neil isn't allowed to sue the Navy; Johns Manville is bankrupt from previous asbestos litigation. So O'Neil sued innocent third parties that happened to sell products to the Navy that didn't contain asbestos on the theory that they should have warned users about the risks of asbestos from other products that might be used in conjunction with their harmless products. O'Neil also sued a company that sold a part in 1943 that did contain asbestos (pursuant to Navy requirements), but whose asbestos components had been replaced by the time O'Neil encountered them. Fortunately, in O'Neil v. Crane, the California Supreme Court unanimously rejected this attempt to expand tort law beyond all moorings. When "the consequences of a negligent act must be limited to avoid an intolerable burden on society, policy considerations may dictate a cause of action should not be sanctioned no matter how foreseeable the risk." Unfortunately, in the absence of federal law on the subject, this means that future plaintiffs are simply going to forum-shop their asbestos litigation to other states that have not so dispositively rejected such expansive theories, so innocent manufacturers who happened to sell products to the Navy are not going to be off the hook yet. But good precedent is good precedent, and it's important that the California Supreme Court is willing to acknowledge that the fact that there are some injured plaintiffs who don't have recovery does not require courts to invent theories to permit collection from distant defendants. And as Beck points out, the decision has consequences for intermediate California courts that have held that pharmaceutical manufacturers can be held liable for the sales of similar products by generic manufacturers. ASBESTOS UPDATE: Dechert LLP Lawyer Further Justifies SC Tort Rule ------------------------------------------------------------------ Sean Wajert of Dechert LLP relates that the California Supreme Court has held on Jan. 12, that the law does not impose liability on manufacturers of equipment used in conjunction with asbestos- containing parts made by others. See O'Neil v. Crane Co., Cal., No. S177401 (Cal. 1/12/12). The Restatement of Torts (Third): Products Liability says that in the context of a final, finished product that injures a user and which is made up of components from different manufacturers, if a given component is itself defective and the defect causes the harm, then the supplier of that component is of course liable. In addition, the supplier can be liable even if the component by itself is not defective, but only if the seller substantially participates in the integration of the component into the design of the product (and the defect causes the harm). In essence, the doctrine holds that an entity supplying a non- defective raw material or a non-defective component part is not strictly liable for defects in the final product over which it had no control. In this respect, the Third Restatement of Torts simply codified the doctrine of various states' common law. Nevertheless, a split had existed among the lower courts in California about whether to extend liability for asbestos-related disease beyond the manufacturers of the asbestos insulation, gaskets, and packing to which many ship workers were exposed (and which makers are now bankrupt) to the makers of the products the asbestos was used with (to find a solvent target). So the state supreme court confronted the limits of a manufacturer's duty to prevent foreseeable harm related to its product: When is a product manufacturer liable for injuries caused by adjacent products or replacement parts that were made by others and used in conjunction with the defendant's product? It held that a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer's product unless the defendant's own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products. Defendants made valves and pumps used in Navy warships. They were sued here for a wrongful death allegedly caused by asbestos released from external insulation and internal gaskets and packing, all of which were made by third parties and added to the pumps and valves post-sale. It is undisputed that defendants never manufactured or sold any of the asbestos-containing materials to which plaintiffs' decedent was exposed. That is, no evidence was presented that any of the asbestos-containing dust came from a product made by defendants. Neither company manufactured or sold the external insulation or flange gaskets that the repairmen like plaintiff removed. Although the valves and pumps contained internal asbestos-containing gaskets and packing, these original components had been replaced long before plaintiff encountered them years later. There was no evidence that any of these replacement parts were made by defendants. The Court of Appeal asserted defendants' products were defectively designed "because they required asbestos packing and insulation." But this factual assertion was unsupported by the record. The evidence established that the requirement for asbestos derived from military specifications, not from any inherent aspect of defendants' pump and valve designs. Nevertheless, plaintiff claimed that defendants should be held strictly liable and found negligent because it was foreseeable that workers would be exposed to and harmed by the asbestos in replacement parts and products used in conjunction with their pumps and valves. The Court of Appeals held that the component parts defense applied only to manufacturers of "multi-use or fungible products" designed to be altered and incorporated into another product. It then concluded defendants' products did not meet these requirements. The Court of Appeal also rejected defendants' argument that they could not be found strictly liable because they did not manufacture or supply the asbestos-containing products that caused plaintiffs' disease. The lower court announced a broad definition of strict products liability: a manufacturer is liable in strict liability for the dangerous components of its products, and for dangerous products with which its product will necessarily be used. Even though it was replacement gaskets and packing that allegedly caused disease, the lower appeals court concluded these replacement parts were "no different" from the asbestos-containing components originally included in defendants' products. Plaintiff's claims would represent an unprecedented expansion of strict products liability, which the supreme court declined to do. California law, like most states, has long provided that manufacturers, distributors, and retailers have a duty to see to the safety of their products, and will be held strictly liable for injuries caused by a defect in their products. Yet, the state has never held that these responsibilities extend to preventing injuries caused by other products that might foreseeably be used in conjunction with a defendant's product. Nor has the state's high court ever held that manufacturers must warn about potential hazards in replacement parts made by others when, as here, the dangerous feature of these parts was not integral to the product's design. From the outset, strict products liability in California has always been premised on harm caused by deficiencies in the defendant's own product. The reach of strict liability is not limitless; strict liability does not extend to harm from entirely distinct products that the consumer can be expected to use with, or in, the defendant's non-defective product. Instead, the courts require proof that the plaintiff suffered injury caused by a defect in the defendant's own product. In this case, it was undisputed that plaintiff was exposed to no asbestos from a product made by the defendants. Although he was allegedly exposed to potentially high levels of asbestos dust released from insulation the Navy had applied to the exterior of the pumps and valves, defendants did not manufacture or sell this external insulation. They did not mandate or advise that it be used with their products. It is fundamental that the imposition of liability requires a showing that the plaintiff's injuries were caused by an act of the defendant or an instrumentality under the defendant's control. Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products. The requirement's purpose is to inform consumers about a product's hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger by careful use. Typically, under California law, manufacturers are strictly liable for injuries caused by their failure to warn of dangers that were known to the scientific community at the time they manufactured and distributed their product. The supreme court has never held that a manufacturer's duty to warn extends to hazards arising exclusively from other manufacturers' products. Plaintiff's alleged exposure to asbestos came from replacement gaskets and packing and external insulation added to defendants' products long after their installation; there was no dispute that these external and replacement products were made by other manufacturers. So the supreme court reaffirmed that a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer's product. The only exceptions to this rule arise when the defendant bears some direct responsibility for the harm, either because the defendant's own product contributed substantially to the harm or because the defendant participated substantially in creating a harmful combined use of the products. Plaintiffs sought to expand these exceptions to make manufacturers strictly liable when it is foreseeable that their products will be used in conjunction with defective products or even replacement parts made or sold by someone else. However, the mere foreseeability of harm, standing alone, is not a sufficient basis for imposing strict liability on the manufacturer of a non-defective product, or one whose arguably defective product does not actually cause harm. The decision was supported by common sense. A manufacturer cannot be expected to exert pressure on other manufacturers to make their products safe and is not able to share the costs of ensuring product safety with these other manufacturers. It would be unfair to require manufacturers of non-defective products to shoulder a burden of liability when they derived no economic benefit from the sale of the products that injured the plaintiff. And a contrary rule would require manufacturers to investigate the potential risks of all other products and replacement parts that might foreseeably be used with their own product and warn about all of these risks. Such a duty would impose an excessive and unrealistic burden on manufacturers. Such an expanded duty could also undermine consumer safety by inundating users with excessive warnings. "To warn of all potential dangers would warn of nothing." ASBESTOS UPDATE: Abatement On for BART Modernization Project ------------------------------------------------------------ Michael Cabanatuan of the San Francisco Chronicle's City Insider reports that hard living takes a toll over the years, and the BART Powell Street Station has done some pretty hard living in its nearly 40 years. Now, as many BART riders have noticed, it's getting a much- deserved face-lift. Work actually started way back in April, but until recently it was mostly in the less-used east end of the station. In the past couple of weeks, the action has moved to the busy west end near Hallidie Plaza and the older Westfield mall entrance. And it's impossible to overlook. Scaffolding, temporary walls and sheets of plastic and plywood have been erected, a bunch of fare gates have been closed, and a maze has been created to and from the escalators to the platform. A few small flyers were posted near the ticket machines last week, explaining the construction as an asbestos removal project, but most of them have disappeared. And they only tell part of the story. Work crews are indeed removing asbestos from the ceilings and walls of the station - and, yes, they're taking the proper safety precautions -- but that's just a small part of the station modernization project. BART is removing the ceiling tiles and the sound baffles that hang from the ceilings and over the staircases and escalators. In addition to replacing the fire-proofing material on structural steel beams that contains some asbestos, crews are also repairing leaks that have developed over the years, said spokeswoman Luna Salaver. They're also knocking out some walls to improve circulation in the sprawling station, and giving the whole place a detailed cleaning. The station will also get new signs on the platform, concourse and street levels. The work will continue until September. ASBESTOS UPDATE: Proposed Mesothelioma Fund Still on U.K. Agenda ---------------------------------------------------------------- Sara Hunt of Access Legal from Shoosmiths (UK) reports that following a 2010 Government consultation, it was found that thousands of asbestos sufferers weren't able to claim compensation because insurers of the companies where they'd worked could not be traced. Although it's now nearly two years after the report, the Government has confirmed that a fund for asbestos sufferers is still on the agenda, and it is understood that Department for Work and Pensions minister Lord Freud is in negotiations with the insurance industry. Access Legal from Shoosmiths submitted a reply to the 2010 consultation supporting the introduction of an Employer's Liability Insurance Bureau (ELIB) that would be funded by the insurance industry. As asbestos related illnesses can take many years to develop; sometimes up to 50 years after the exposure. When a sufferer comes to claim, the company they worked for at the time of exposure has frequently ceased to exist, records have been lost, and it's difficult to find the company's insurer. With more than 2,000 people a year dying from mesothelioma -- an asbestos related cancer -- it's important that victims aren't denied the right to claim compensation because an insurer can't be found to pay out on the claim. The proposed ELIB would operate in a very similar way to the Motor Insurance Bureau, which ensures that victims of road traffic accidents are compensated where the driver at fault is uninsured. ASBESTOS UPDATE: Bristol Water Says No Pollution Has Taken Place ---------------------------------------------------------------- Weston and Somerset Mercury reports that asbestos could be dumped near a major water supply for North Somerset if plans to fill a quarry with hazardous waste are approved. Stowey Quarry, a few miles from Blagdon, could be filled with up to 645,000 tons of hazardous waste which residents fear could leach into nearby Chew Valley Lake, which supplies North Somerset and Bristol with millions of liters of drinking water per year. Bath and North East Somerset Council (BANES) granted planning permission to Oaktree Environmental for the plans in July but following the threat of a judicial review and a wave of protests, later reversed its decision on the grounds it did not advertise it properly. The change of heart was formally ratified by the High Court in December but BANES has said it will re-advertise the application soon. Residents will then have the chance to respond to the proposals. Protesting group Stop Stowey Quarry is now gearing up for a fresh wave of opposition. Campaigner Lucy Pover said: "There will be lorry loads of asbestos being taken through the area every day. It only takes one accident to release it into the air. "The site of the quarry is only 1,500 meters from the lake. It just doesn't seem to make sense to have tons of hazardous waste dumped there." Last year, more than 1,800 signatures were collected against the proposals. A spokesman for Bristol Water said of the original plans: "We consider proposals to develop a large scale waste facility close to a major water supply, special protection area and site of special scientific interest, are inappropriate. "However, we would like to reassure customers that no pollution of any kind has actually taken place. "We monitor the quality of the raw untreated water in the lake and through every stage of the treatment process which follows." The water supplier said that it will respond to any concerns raised if the plans are re-advertised. ASBESTOS UPDATE: Weber Aims to Reform Rules in Favor of Defendants ------------------------------------------------------------------ Ann Maher of The Madison/St. Clair Record reports that state representative candidate Don Weber of Troy said he would introduce legislation to overturn local judicial rules that are unfair to defendants in asbestos lawsuits. One of the reforms he outlined in a release would make judges disclose to non-settling defendants before trial how much has already been paid to an asbestos plaintiff. Weber, who is running in the Republican primary against incumbent Paul Evans of O'Fallon and Charlie Meier of Okawville in the 108th House District, said this would amend the Illinois Contribution Among Joint Tortfeasors Act. Weber said the act already provides that a defendant who doesn't settle a case is entitled to credit for any defendant who paid money to a plaintiff prior to trial. "While such disclosures are common in nearly every other county, the Madison County judges, with the help of plaintiffs' attorneys who generally have contributed generously to a judge's campaign war chest, have written their own unfair rules for asbestos cases," Weber said in a statement. "These local rules often trump state statutes and case law in Madison County," he said. Weber is a former Madison County State's Attorney and a former appointed Circuit Judge who lost his election bid in 2006 to Circuit Dave Hylla, a Democrat. Weber said he would also introduce legislation that would clarify what evidence is admissible in the defense of a mesothelioma claim. Weber said that defendants in Madison County are routinely prohibited from showing that another party is mainly responsible for a plaintiff's injury. "This prohibition is contrary to Illinois law but is accomplished by rules relating to discovery and local third-party practice rules adopted by the judges after the plaintiff's lawyers approved," Weber said. He said local rules limit evidence in a case where, for example, a plaintiff may have worked around asbestos every day for over 20 years at his main place of employment, but changed the brakes on his car once at home with an asbestos-containing brake pad. "Even though the plaintiff's main employer may have already paid millions to a plaintiff, the remaining brake-pad defendant is usually prohibited from showing that evidence to a jury," Weber said. "I trust juries. I think they are entitled to know such highly relevant facts." ASBESTOS UPDATE: Smith Pleads Guilty Sentenced to 5 Years in Jail ----------------------------------------------------------------- The Mesothelioma & Asbestos Awareness Center reports that a roofing contractor in Central Louisiana pleaded guilty to two counts of illegally disposing of hazardous waste materials by burning them, including asbestos shingles he removed from renovation jobs his company had completed. According to an article in The Town Talk, Walter Monroe Smith, who is the owner of Rapides Roofing and Home Repair, ordered his employees to burn asbestos-containing roofing shingles at a property he owns in Deville, La. This particular incident occurred in 2009, notes a news release by the Louisiana Department of Environmental Quality (DEQ). After being charged in the 2009 incident, however, Smith proceeded to do the same thing less than a year later, instructing employees to burn not only additional asbestos roof shingles but also tire rims, plastic products, and other hazardous solid waste. This was done at the same location in Deville, notes the DEQ report. After this particular incident, Smith was arrested and charged with illegally disposing of toxic waste, a violation of the federal Clean Air Act. In the week ended Jan. 20, in the 9th Judicial District Court of Louisiana, Smith's guilty plea was accepted and he was sentenced to five years of hard labor in prison -- which was suspended -- and three years probation. He must also pay a fine of $3,000; $2000 to the DEQ for the cost of the investigation and $1000 to the DA's office to cover court costs. He was also ordered to publish a public apology in the local newspaper. "There are a few business owners in the state who choose to skirt environmental and health laws by disposing of waste in an illegal and improper fashion," stated Peggy Hatch, secretary of the DEQ. "DEQ's mission is to aggressively investigate and prosecute anyone found to be in violation of the very laws that have been put in place to protect human life and the environment." Due to Smith's actions, there is considerable concern that his employees as well as others who live in the area of his Deville property may have been exposed to asbestos dust and may have inhaled sharp asbestos fibers, which can lead to the formation of cancerous tumors and a diagnosis of the disease known as mesothelioma. Because mesothelioma has a long latency period, those exposed may not detect symptoms for decades but should regularly monitor the health of their lungs in order to detect any changes. ASBESTOS UPDATE: New Found Hazards Add $300,000 to Abatement Cost ----------------------------------------------------------------- Pat Guth of the Mesothelioma Cancer Alliance reports that the demolition of two long-vacant structures on land that surrounds Oshkosh, Wisconsin's Park View Health Center is turning into an expensive ordeal as crews continue to find much more asbestos than they initially believed was present in the old buildings. According to an article in the Oshkosh Northwestern, asbestos surveys were completed on the buildings before demolition work begun, with surveyors identifying about 11,000 total square feet of asbestos. However, the company razing the structures - Veit and Company Salvage of New Berlin, Wis.,- told officials of Winnebago County that the buildings have been "full of surprises." Among the surprises has been previously-undiscovered asbestos floor adhesive and asbestos pipe insulation, both products commonly used in structures built prior to about 1977. Winnebago County, which owns the buildings, notes that they have no choice but to continue to tear down the already half-demolished structures. Hence, they are going to have to deal with additional costs of more than $300,000 and another 3 or 4 weeks of work. Because the building can't be razed with asbestos inside, the demolition work will be start and stop until it's determined that all of the toxic materials have been removed. The two buildings are being torn down to enhance the view of the individuals who live at adjacent Park View Health Center, a county-owned nursing facility. The five-story Rehabilitation Pavilion and the three-story Pleasant Acres building haven't been in use for years and were already in deplorable condition before demolition work began, prompting concerns about the release of toxins such as airborne asbestos, which can be extremely hazardous if inhaled, causing diseases such as asbestosis and mesothelioma cancer. ASBESTOS UPDATE: Intake Firms, Pre-Assigned Trial Slots Explained ----------------------------------------------------------------- Miles Bardell at Legal Newsline relates that as a clearinghouse for massive numbers of asbestos lawsuits from all over the country, Madison County is a prime example of a highly successful processing center. Local judicial rules, demographics, and enterprising asbestos attorneys have built the docket over time. But the most critical ingredient for Madison County's status today as a fast settlement litigation hub: trial dates. How lucrative are cases in the nation's busiest state court asbestos docket where most claimants are from out of state? According to several lawyers familiar with Madison County's asbestos docket, mesothelioma settlements range from $1.5 million to $5 million per case. Legal observers say that "intake" firms spend handsomely on television, radio, Internet and print advertising to gather valuable mesothelioma cases which are then brokered to plaintiff's counsel in a processing jurisdiction where the most value can be extracted. The brokering process includes negotiation over the volume of cases that can be handled, how quickly a case can be turned around, and of course dollars that the case will settle for. As evidenced by an increasing number of trial dates and new case filings over the past few years in Madison County, this Illinois venue is very competitive on each metric. "For me, the big issue is all the mesothelioma advertisings - obviously we have a national mesothelioma litigation market, with a lot of people who are trying to pull in the cases," said Kirk Hartley of the GlobalTort blog. Mark Behrens, a leading voice on mass tort litigation, said in a telephone interview that some firms have no interest in actually litigating cases. "There are some firms I have heard of that advertise on TV that don't ever handle the case," Behrens said. "They are just out there mining for cases to broker and sell to somebody else...intake firms," he said. The Sokolove law firm, a national firm that advertises heavily for mesothelioma cases, is an intake firm. At the bottom of its homepage, a disclaimer states: ". . .[M]ost cases are referred to other attorneys for principal responsibility (sic)." Behrens made clear that not all law firms that refer cases to local counsel in Madison County are simply mining cases. "Some of them are legitimate firms that handle asbestos cases and they may not have the expertise to take on a certain case, or they may know that there are higher values for that case if it is in Madison County," Behrens said. On the other hand, Behrens identified problems that are inherent to the intake firm model. "I think that it is deceptive to consumers," Behrens said. "When [people with mesothelioma] go to a lawyer they are looking for someone who is going to help them on their problem. I think most people would be shocked to find that when they hire a lawyer they are actually just hiring a brokerage firm, essentially." Legal Newsline reached out to several national law firms who advertise to represent mesothelioma victims, but none responded to comment for this story. Nationwide, a handful of jurisdictions have become magnets for asbestos litigation. These processing centers handle a vast majority of all asbestos litigation in the nation. Whether they develop because of intentional judicial policies, demographics favorable to plaintiffs, or other factors, once a jurisdiction creates a name for itself in the asbestos litigation market the cases keep pouring in. "[I]f you look around the country, what you see is the major processing locations are Los Angeles, San Francisco, and Oakland in California; New York; to some lesser degree Delaware; Philadelphia; and Illinois. . .," Hartley said. Another legal observer believes that Madison County's "asbestos market" was preceded by its reputation for class action litigation. "In sum, my analysis is that first the class actions came, from all over the country. Then came the asbestos," said Lester Brickman, a professor of law at the Benjamin N. Cardozo School of Law in New York and an expert on asbestos litigation. "[T]here were billions of dollars in attorney fees created from class actions certified by Judge (Nicholas) Byron, and I think that is where some of the push came from that created the current asbestos market in Madison County. "[Byron] accommodated the plaintiff's firms in every way possible . . . He [Byron] basically said 'you all come', and they came." On top of that, the blue-collar citizenry of Madison County at one time composed a jury pool that was willing to find for plaintiffs in suits against large corporations. With sympathetic jury members coming from families who worked in the local steel, manufacturing, and refining industries it soon became clear that settling cases was highly preferable to taking a chance with a Madison County jury. That dynamic has changed over time. The number of asbestos cases taken to trial has declined in Madison County over the past few years -- the last one that went to trial occurred in March 2010 and ended in favor of defendant Ford Motor Co. Brickman also criticized former asbestos Judge Barbara Crowder for "welcoming" new asbestos litigation. "When Crowder stepped in she once again said 'you all come! And be sure to bring your contributions with you,'" Brickman said. Crowder was abruptly removed from her post on the asbestos docket last month after she had accepted $30,000 in campaign contributions from the top three local asbestos firms within a week of granting them the vast majority of trial settings for 2013. She has denied violating the judicial code of conduct. Francis E. McGovern, a professor of law at Duke University Law School, wrote "Judges who move large numbers of . . . torts through the litigation process at low transaction costs create the opportunity for new filings. They increase the demand for new cases by their high resolution rates and low transaction costs. If you build a superhighway, there will be a traffic jam." While Madison County's procedural gymnastics have prevented a traffic jam, the superhighway has been built and is bustling with traffic -- last year the number of new filings reached 953, which matched the record number of cases filed nearly a decade earlier in 2003. Behrens also commented that Madison County's advance trial setting is unique because it is the only jurisdiction in the country that has trial settings for cases that don't already exist. "Because often in litigation it is the setting of a trial that causes both parties to come to the settlement table," Behrens said. "When a case is just hanging out there for a long time there may not be a lot of pressure to settle. In Madison County when you know there is a trial date coming up, that will get the discussions started." Intake firms negotiate with local counsel in processing centers to get the most value they can for the cases they generate. "My understanding is there is some amount of negotiation that goes on between the lawyers who have captured the case through internet ads, union relationships, friend relationships, whatever, and then it is a negotiation about where is the case best processed, and with which law firm, given the facts of the case," Hartley said. "That is the calculus." Hartley also said that litigating in Madison County is "relatively economical." "[A]t the end of the day you have a machinery and a framework in place, capable lawyers, low defense rates because the defense firms are handling so many cases that it is relatively economical," Hartley said. On one side of the process, intake firms work to maximize the value they can get from cases. By negotiating with firms in processing jurisdictions the intake firms may be able to ratchet up the percentage of the ultimate share they receive. On the other side, firms in processing jurisdictions market their ability to provide a good return on each case. "There has to be a market for mesothelioma cases in Madison County that is at or above the national average," said a member of the asbestos defense bar who asked not to be identified. Hartley said that having trial dates without a case is a clear advantage for plaintiff firms in Madison County. "With dozens of trial dates in hand, the Madison County plaintiff's firms then use the trial dates as part of their pitch to obtain cases from other plaintiff's firms around the country," he wrote on his GlobalTort blog. According to a member of the asbestos plaintiffs' bar, several factors are on the table when local firms market their ability to process cases. Not only are cases practically guaranteed a trial date and generally worth more here, the cases are turned around faster too. "Volume has a lot to do with it," said the attorney who asked not to be identified. "Intake firms cut long term deals with local counsel, so, for example over two years the local firm will promise to take all the intake firm's cases -- so now, local counsel may be able to offer a discounted rate and still get the cases. Instead of taking 25 cases with 35% of fees routed back to the intake firm, the local firm may agree to take all the cases, or take 50 cases, and only pay 25% or less on each case, and it is worth it because the intake firm has stability and knows the turnaround is a lot faster in Madison County. "Their business model runs off of steady volume and certainty, and Madison County seems to have both of those metrics covered." One point everyone who commented for this story kept coming back to was the importance of pre-assigned trial slots to the brokerage process. "Having those cases set for trial in advance gives Madison County plaintiffs' lawyers a big advantage in the marketplace for these lawsuits -- when they are competing for cases against, say, Texas or firms from San Francisco, to be able to advertise that they already have trial settings for these cases really helps those firms attract business," Behrens said. ASBESTOS UPDATE: Exposed Hazards Put Nursing Home for Abatement --------------------------------------------------------------- 69 News at news@wfmz.com reports that Asbestos testing has turned up the harmful fibers in several areas of the Gracedale nursing home building in Northampton County. Northampton County's director of administration, Tom Harp, said the Gracedale safety committee requested that the building be tested for asbestos. Mr. Harp said there were concerns that some previous work done in certain areas of the building may have resulted in the exposure of asbestos. The tests were done a couple weeks ago, according to Harp, and some areas did test positive for asbestos. The main areas with asbestos were the carpentry shop, maintenance workshop, storage area and the loading dock. Harp said some of the areas have been shut down, and none of the asbestos got airborne, which is when it can cause health problems. Officials, however, want to get the asbestos cleaned up as soon as possible to keep it from becoming airborne, said Harp, who noted that the cleanup could cost tens of thousands of dollars. ASBESTOS UPDATE: Discovery Pushes Hazard Check on Old Ferries ------------------------------------------------------------- The Digby Courier reporter Jonathan Riley reports on NovaNewsNow.com that the department of transportation (DOT) tied up the spare ferry for the Digby Islands in early January while contractors "covered up" asbestos on the boat. The Islands ferry service was without a back-up boat from Jan. 6 to Jan. 11 this year after a crewmember raised questions about some material on board. Department spokesman Steve Smith says lab tests confirmed that samples from the Spray contained asbestos. "To ensure the safety of staff and the public the Spray wasn't available for service while the asbestos issue was being dealt with," wrote Smith in response to questions from the Courier. "Arrangements were immediately made for an asbestos company to identify what needed to be done to address the situation. The company came on site and covered up the asbestos-containing material." The department found asbestos in the bathroom, on the bridge, in a seating area, and in pipe gaskets. Smith says, "There is no harm to the crew or passengers unless the asbestos material is disturbed and becomes airborne." Health Canada says breathing in asbestos in significant amounts can scar the lung making breathing difficult. It may also lead to a rare cancer of the chest lining or stomach cavity and can cause lung cancer, especially when inhalation of asbestos is combined with smoking. This is the first time asbestos has been found on a provincial ferry but Smith admits asbestos was used throughout the shipbuilding industry as insulation and fireproofing into the early 1980s. As a result of this discovery, the department will be testing ferries built prior to or shortly after 1990. This includes the William G Ernst from Tancook; the Joe Casey from Long Island, Digby County; the Colas Silas on the Little Narrows run in Cape Breton; and the Stormont in Country Harbour, Guysborough County. The department also gave staff literature outlining safe work practice and what to do if they suspect material contains asbestos. ASBESTOS UPDATE: Total Environmental Gets Fremont Abatement Job --------------------------------------------------------------- Daniel Carson at The News Messenger reports that Fremont City Schools awarded its Fremont Middle School asbestos abatement contract to Total Environmental as the district moves toward demolishing the Croghan Street building this year. Chris Moore of Touchstone CPM, the contractor for the middle school project, said Total Environmental bid $108,665 for the project. Moore said the apparent low bid submitted by Diversified Environmental and Demolition included a bid guarantee that was completed incorrectly. He said that rendered that company's bid nonresponsive, and after being notified, Diversified withdrew its bid. Total Environmental had the next lowest bid and met all of the requirements as a responsible bidder, Moore said. Moore said the building's asbestos abatement work is scheduled to start in March and be completed by May. He said architecture firm Fanning Howey Associates is getting demolition documents ready. At an October 2011 school board meeting, Moore said a survey of the middle school revealed the plaster area of the auditorium ceiling needed to be removed, at a cost of about $100,000. Moore said most of the other plaster tested negative for asbestos. The district will have a farewell open house at the old middle school Feb. 5 from 1 to 3 p.m. ASBESTOS UPDATE: Aquatic Centre Vermiculite At 'Below Risk' Level ----------------------------------------------------------------- During the boiler upgrade of the Aquatic Centre, a four-inch hole was cut into the exterior wall. At this point vermiculite, a common insulating material, was found inside the wall. As vermiculite is known to be cross contaminated with asbestos, work was stopped and testing of the material was conducted. Test samples were taken from two locations in the Complex, the exterior wall of the Aquatic Centre and the exterior wall of the Arena. Both tests have shown trace (less than 1%) amounts of asbestos. The test was conducted in accordance with current National Institute for Occupational Safety and Health analytical Method 9002. Peak Environmental, the consultant hired to conduct the test provided the following commentary: "As the concentrations of asbestos in vermiculite are extremely low and with the dilution affect, incurred in a room with active air movement, we perceive there would be no risk of exposure to airborne asbestos fibers released from this material in concentrations even approaching published WorkSafeBC and American Council of Government Industrial Hygienists Exposure Limits for airborne asbestos fibers of 0.1 fibers/cc of air." As a precautionary measure, the Castlegar and District Recreation Commission has retained Pacific Rim Industrial to remediate and contain vermiculite in the areas in question and to conduct air testing in the Community Complex. Peak environmental has been retained to conduct an Asbestos Inventory and Risk Assessment for the entire Community Complex and Pioneer Arena. ASBESTOS UPDATE: Ex-Employee's Family Sues Chevron and Texaco ------------------------------------------------------------- David Yates of The Southeast Texas Record reports that the family of the late Robert Marze has filed an asbestos lawsuit against Chevron and Texaco, alleging the companies exposed him to the fiber throughout his career. Doris Marze and her children filed the suit Jan. 17 in Jefferson County District Court. According to the lawsuit, Robert Marze was employed by Texaco in Port Arthur, where he was allegedly exposed to asbestos. The suit does not give dates of employment, nor does the suit state his occupation. As the result of his alleged exposure, Robert Marze developed pulmonary asbestosis, which he died from on Aug. 20. The suit alleges the defendants knew for decades that asbestos caused cancer but still exposed employees to the substance without warning them. The plaintiffs are suing for exemplary damages. They are represented by Keith Hyde, attorney for the Beaumont law firm Provost Umphrey. Judge Milton Shuffield, 136th District Court, is assigned to the case. Case No. D191-661 ASBESTOS UPDATE: Lopinot is St. Clair Cty's New Docket Master ------------------------------------------------------------- Steve Korris of The Madison/St. Clair Record reports that while Madison County's huge asbestos docket shifted from one judge to another in the glare of publicity, St. Clair County's growing asbestos docket shifted from one judge to another by routine rotation. On Jan. 1, St. Clair County Associate Judge Vince Lopinot took charge of asbestos suits and hundreds of other actions that had belonged to Associate Judge Andrew Gleeson. Chief Judge John Baricevic rotated Gleeson to satellite courts in East St. Louis and Fairview Heights. On the surface it looked like a demotion for Gleeson, who presided over many important cases that would normally belong to circuit judges. Madison County Circuit Judge Barbara Crowder endured such a demotion last month, after her retention campaign received $30,000 from asbestos lawyers. Madison County Chief Judge Ann Callis assigned the asbestos docket to Associate Judge Clarence Harrison Gleeson lost his docket for a different reason. Circuit judges in St. Clair County keep their cases year after year, but associate judges rotate each year from courtroom to courtroom or from building to building. This year's rotation greatly expands the power of Lopinot, formerly a traffic judge. Gleeson and Lopinot seek election as circuit judges in November's general election. ASBESTOS UPDATE: Carcinogens Found in Northampton Nursing Home -------------------------------------------------------------- Adam Clark of The Morning Call reports that Northampton County has closed part of Gracedale's basement because of asbestos. The county this month shut down portions of the southeast and southwest sections of the nursing home's basement including the maintenance shop and break room and carpentry shop. Asbestos fibers were found at the surface level of those areas but were not airborne, Director of Administration Tom Harp said. The county is waiting on a final testing report to determine the scope of the cleanup. The areas that are closed are not essential to the day-to-day operations at Gracedale, Harp said, but they must be re-opened before long because they contain parts needed for wheelchairs and beds. Harp said the county doesn't want to cause unnecessary panic and does not believe employees or residents are in danger. County workers requested the tests because of concerns about asbestos, Harp said. At the last two County Council meetings, maintenance employees pleaded with county council to take action about the asbestos. "I've been here too long. I've seen too much," Gracedale employee Jonathan Siedt said. "It's time to act, not talk about it." Some employees have asked for medical surveillance. The program is an assessment of employees exposed or potentially exposed to occupational hazards. The county is considering the request but medical surveillance is typically only for workers who handle asbestos during abatement, Harp said. Concerns about asbestos in county buildings prompted county Controller Stephen Barron, Jr., to contact the Environmental Protection Agency in 2010. The EPA has yet to file a report on its investigation and no fines have been levied to date. Barron said he contacted the EPA because the administration did not take enough action. The county's law library is also closed because of asbestos. However, Northampton has spent more than $800,000 for environmental testing and hazardous substance abatement in its buildings since 2006, according to a report prepared by County Executive John Stoffa on Jan. 13. "To insinuate that this administration has not taken this issue seriously is absurd," Stoffa wrote. ASBESTOS UPDATE: Debate Up Over Information From Asbestos Trusts ---------------------------------------------------------------- John O'Brien at Legal Newsline reports that two attorneys on opposite sides of a debate over payments to asbestos victims took part on Jan. 20 in a policy debate presented by the Congressional Civil Justice Caucus Academy. Nathan Finch, Esq. -- nfinch@motleyrice.com -- of plaintiffs firm Motley Rice and James Stengel, Esq. -- jstengel@orrick.com -- of Orrick, Herrington & Sutcliffe, disagreed over whether information gathered during payments made by bankruptcy trusts to victims of asbestos exposure should be shared in court cases filed by the same victims. More than 90 companies declared bankruptcy as a result of asbestos litigation and at least 60 created trusts designed to pay out asbestos claims. The system works independent of lawsuits filed against solvent defendants. Stengel said information from the trust system could be helpful in court cases. "The critical information is what the plaintiffs are saying about their asbestos exposure," he said. That information, Stengel argues, could help determine which companies bear the responsibility of paying the claimant. A plaintiff could omit any asbestos exposure resolved by the trust system in his or her lawsuit, making it seem the defendants are at fault for all injuries, Stengel feels. If the information of other exposure were provided to defendants, they could argue that they aren't wholly responsible. He called the trust system "parallel but distant." "It may mean that the wrong people are paying," Stengel said. Finch, however, says there is no justification to pass any federal law granting Stengel's wish. "The whole idea that there is fraud and abuse because of a lack of transparency is not supported by facts," Finch said. "I don't see the need for federal intervention in state courts. "I think this debate is largely unnecessary." Motley Rice is a big player in asbestos bankruptcy trusts. A report released in August by the Rand Corporation showed Joseph Rice served on four trust advisory committees, which help determine how much a claimant is paid from the trust. Those trusts are Owens-Corning, DII Industries, Armstrong World and Babcock & Wilcox. Owens-Corning paid out the most of those four in 2008 -- more than $1 billion. The Rand report says a 25% fee is customary for attorneys. All totaled, $3.3 billion was paid out by asbestos bankruptcy trusts in 2008, according to the Rand report. Finch says the trust system and tort system are managing just fine and noted that Stengel's firm has supported plans of reorganization that have the same provisions as the current system. "I don't think there is the type of problem the other side is claiming," Finch said. In April 2010, U.S. Rep. Lamar Smith, R-Texas, asked the Government Accountability Office to investigate the trust system. He pointed to an oft-cited 2007 instance in Ohio, where in Cuyahoga County the California law firm of Brayton Purcell claimed the late Harry Kanania died in 2000 of mesothelioma solely from smoking cigarettes made by Lorillard Tobacco, while simultaneously seeking compensation from multiple asbestos trusts, claiming their products led to Kanania's fatal lung condition. The GAO released its report in October, finding no fraud in the system. It did note that the trusts operate in secrecy. "Although the possibility exists that a claimant could file the same medical evidence and altered work histories with different trusts, each trust's focus is to ensure that each claim meets the criteria defined in its (trust rules), meaning the claimant has met the requisite medical and exposure histories to the satisfaction of the trustees," the report says. "Of the trust officials that we interviewed that conducted audits, none indicated that these audits had identified cases of fraud." Stengel had testified before the House Subcommittee on the Constitution in September. "Transparency regarding claims of asbestos exposure, the entitlement to payments from bankruptcy trusts and tort system defendants are the amounts of payments actually received will benefit not only defendants in the tort system, but the trusts and those claimants whose access to limited funds would be diminished as a result of double recovery by competing claimants," he said. Smith is a member of the Congressional Civil Justice Caucus, a bipartisan group of 11 members of the House of Representatives. It is independent of the Congressional Civil Justice Caucus Academy, an educational program put on by the Law & Economics Center at George Mason University School of Law. The academy says its mission is to provide educational programs on a range of civil justice issues for the benefit of the general public and members of Congress. ASBESTOS UPDATE: McGill Univ. Holds on Chadha Amid Letter Campaign ------------------------------------------------------------------ CBC News reports that anti-asbestos activists are pressuring a pair of health institutions to cut ties with a Montreal-based asbestos exporter. Asbestos opponent Stacy Cattran is leading a letter-writing campaign against Roshi Chadha, an executive with Seja Trade Ltd., a Montreal-based company that exports the mineral to India. Chadha is also a member of the boards of both St. Mary's Hospital Foundation and McGill University. Cattran says those two activities are incompatible. "Asbestos causes cancer and a hospital should not be legitimizing the asbestos industry by having one of the main faces of the asbestos industry sitting on their board," said the Ontario-based activist, who lost her father to mesothelioma in 2008. Mesothelioma is a rare form of cancer linked to asbestos exposure. Until last week Chadha served on the governing body of the Canadian Red Cross -- but resigned after Cattran's letter-writing campaign lobbied the humanitarian organization. St. Mary's Foundation said it is reviewing Chadha's position. But McGill's board issued a statement saying Chadha is a valued volunteer member, and it has no further comment. CBC calls to Chadha have not been returned. ASBESTOS UPDATE: Phillip Foxman Companies Face 6 EPA Prosecutions ----------------------------------------------------------------- Natalie O'brien of The Sydney Morning Herald reports that a Sydney man who founded the Clean Up Israel campaign has been charged with illegally transporting and dumping asbestos contaminated waste on his property in Wollondilly. Phillip Foxman and the companies of which he is a director, Botany Building Recyclers Pty Ltd, and Foxman Environmental Development Services Pty Ltd, in Banksmeadow, are facing six prosecutions by the Environmental Protection Authority and possible fines of millions of dollars if found guilty. Each offence has a maximum penalty of AU$250,000 for individuals and AU$1 million for companies. The Sun-Herald revealed last April that Mr. Foxman had been accused of illegally dumping between 25,000 tons and 35,000 tons of processed waste contaminated by asbestos on his land. At the time, Mr. Foxman denied he illegally dumped waste on the site. He also denied the asbestos on his property posed a health risk or was pollution, saying it was "bonded asbestos" and there was no "environmental risk". But the EPA has alleged that a large quantity of waste was unlawfully transported from the Botany Building Recyclers waste facility in Banksmeadow to a property owned by Foxman Environmental Development Services in Wollondilly for several months in 2009 and in 2010. The EPA also alleges that the waste, allegedly containing contaminants including asbestos, was dumped in at least two stockpiles on the property, known as The Oaks. The acting chief environmental regulator for the EPA, Gary Whytcross, said illegally dumped waste could cause significant harm to the environment. "The NSW government requires large waste facilities to be licensed to ensure the protection of the environment," he said. Mr. Foxman has been ordered to appear before the NSW Land and Environment Court in February. Mr. Foxman has said he founded the Clean Up Israel campaign after the collapse of the bridge over the polluted Yarkon River during the Maccabiah Games in 1997. Four Australian athletes died in the accident and more than 70 were injured. He was in Israel at the time and came up with the idea of a community based action program to clean up the country. ASBESTOS UPDATE: Oldham Council Ensures Abatement of The Coliseum ----------------------------------------------------------------- BBC News Manchester reports that the future of a historic theatre has been secured after Oldham Council pledged to invest GBP1.45 million in its upkeep. The Coliseum in the town centre has enticed audiences since 1885, but a catalogue of works need to be carried out to stabilize the old building. Its heating system is almost obsolete and asbestos needs to be removed. Howard Sykes, council leader, said: "Even in this very challenging financial climate we have found the cash to invest in this key asset." In August 2009, the Unity Partnership carried out an assessment which revealed that the heating system needed to be replaced. It also identified asbestos which had been laying dormant since the 1960s. There is no risk to the public, but it could become dangerous if work on the heating system moves it. The local authority confirmed that the asbestos will be removed. Mr.. Sykes added: "The Coliseum has long been an outstanding 'jewel' in our town centre and it was clear we must secure its long term future. "Making investment now to repair the heating system and remove the asbestos will enable the timing of this work to be controlled in order to minimize disruption to the theatre's program of events and public use of the facility." The move is part of the new GBP32 million capital investment plan in Oldham which is running until 2014. ASBESTOS UPDATE: Johnson Mine Heir Joins Letter-Writing Campaign ---------------------------------------------------------------- Michelle Lalonde of The Montreal Gazette reports that a descendant of one of the earliest pioneers of Quebec's storied asbestos industry has publicly joined the movement to stop Canadian production and export of the deadly mineral. Susan Henry of Vancouver is the great-great niece of Andrew Stuart Johnson, a farmer who in 1878 founded the Johnson Mine Company in Thetford Mines, the first asbestos mine to operate in Canada. After opening his mine, Johnson served as mayor of Thetford Mines and then as a Conservative member of the Quebec legislature until 1892, no doubt promoting his industry as vigorously as politicians from the region continue to do today. Despite her family's history, Henry has now put her name to a letter-writing campaign, launched by the David Suzuki Foundation in November, calling for an end to Canada's involvement in the asbestos trade. In a message sent out to foundation members, Susan Henry writes: "Although my great-great uncle, Andrew S. Johnson, founded his mine . . . in good faith, the intervening years have revealed the very dangerous nature of asbestos. It is deeply disturbing to me that we are now poised to ramp up exports to developing countries, when we are fully aware of how lethal this mineral can be." She goes on to urge other Canadians to help the foundation reach its goal of sending 10,000 messages to Prime Minister Stephen Harper and Quebec Premier Jean Charest opposing the reopening of the Jeffrey Mine. The site was reporting 8,977 messages had been sent as of Saturday afternoon. The Quebec government has promised to provide a $58 million loan guarantee to Westmount-based Balcorp Ltd. to expand the exhausted open pit mine into an underground operation. The expansion would enable the mine to produce 200,000 tons of asbestos per year for the next 20 years. But the government's offer is conditional on the company first proving it has a firm commitment for $25 million in private investments for the project. Quebec's economic development minister has established several deadlines for Balcorp to prove its financing over the past year and a half, but continues to extend them. Jean-Pierre D'Auteuil, a spokesperson for the ministry, told The Gazette on Jan. 20 that Balcorp Ltd. is still negotiating with investors and has not yet proven to the government that it has the private financing required. D'Auteuil also defended the government's position, noting Balcorp must demonstrate to the government that clients of the Jeffrey Mine intend to use the product safely as a condition of the loan guarantee. "Thanks to technological advances, it is possible to use chrysotile asbestos with negligible risk to health when it is selected, handled and installed respecting strict standards," D'Auteuil wrote in an emailed statement. "On the other hand, asbestos can indeed present health risks to workers and the public when its use is poorly regulated and does not satisfy high safety standards." Asbestos was an economic dream for Quebec for more than a century; the towns of Thetford and Asbestos grew around the mines rather than vice versa. Quebec companies also produced brake pads, textiles, paper and cement pipes made with asbestos, employing thousands of workers. But the dream began to morph into a nightmare in the 1960s when medical science revealed much higher cancer rates among mine workers in Thetford Mines than in the general population. The world learned that when asbestos dust is breathed in, the tiny fibers become lodged in lung tissues and other internal organs, where they remain. Then decades later, those fibers can cause fatal diseases, like asbestosis, mesothelioma, lung cancer and other forMs. of cancer. Today, exposure to asbestos is the single biggest cause of work- related deaths in Quebec. In 2009, more than half of the deaths compensated by the Quebec Workers' Compensation Board -- 102 of 185 -- were due to asbestos exposure. Higher death tolls are expected in the future since it can take decades (after exposure) for fatal asbestos-related diseases such as asbestosis and mesothelioma to develop. While rules for protection of asbestos miners are much more stringent now, workers here and abroad continue to be exposed to asbestos dust when buildings are demolished or renovated, or when work is done on roads, water pipes and other infrastructure that has been reinforced with asbestos, or when natural disasters or terrorist attacks cause buildings to collapse. All of this has all but killed the North American market for Quebec asbestos, and the product is banned in more than 50 countries worldwide, and heavily regulated in others. But because of its low cost, strength and fire-preventing properties, the mineral is still in demand in developing countries, such as India and China, where protection for workers is generally inadequate. Quebec's only two remaining asbestos mines have suspended operations. The LAB Chrysotile mine in Thetford Mines declared bankruptcy earlier this month, but is hoping for government financial aid to restructure and reopen. And the Jeffrey Mine in Asbestos ceased operations last fall. Susan Henry told The Gazette on Jan. 20 she decided to join the anti-asbestos movement partly because she has an aunt who grew up in Thetford Mines and died a painful death from an asbestos- related disease, and partly because of the asbestos-related deaths now being reported due to exposure during the Sept. 11, 2001, terrorist attack in New York. "It's kind of horrifying that I come from a family responsible for the deaths of thousands and thousands of people (even though they didn't know it at the time)," she wrote. But Henry seeMs. optimistic public pressure can persuade politicians to stop Canadian asbestos production. "Our letters are making a difference," she writes. "Still no decision has been announced. The government seeMs. to be stalling on confirming the deal -- and with good reason. Health authorities have determined that all kinds of asbestos cause cancer and there is mounting opposition at home and abroad to Canadian asbestos exports." The letter-writing campaign, launched in early November, asks the Quebec government to refuse the loan guarantee. The campaign -- action.davidsuzuki.org/asbestos -- also asks the federal government to help asbestos mining communities transition to other economic activities and to support international restrictions on the asbestos trade. (Canada continues to oppose efforts to include Chrysotile asbestos in the United Nation's Rotterdam Convention, which lists hazardous products and requires exporting companies to inform importing companies of dangers and precautions required). "I find it inspiring that so many passionate individuals, like Susan Henry, have joined our campaign," said Lisa Gue, a spokesperson for the David Suzuki Foundation. "We're all hoping Premier Charest gets the message and refuses the loan guarantee." ASBESTOS UPDATE: Renovations Stir Up Toxic Fibers in Bayside Homes ------------------------------------------------------------------ Rebecca Thistleton of the Melbourne Weekly Bayside reports that increased home renovations and knock-down, rebuild projects have caused a spike in asbestos disturbances around the south-eastern suburbs. Martin Campi from Melbourne Asbestos Removal and Demolition, based in East St. Kilda, said a rise in home renovations had led to many calls to homes in Bentleigh, East Bentleigh, Sandringham and Hampton. "It's happening everywhere. Asbestos is in nearly all homes built before '85, but there is so much renovating and building going on in those areas," he said. Kingston City Council issued a safety reminder last week after two recent incidents where asbestos was disturbed in homes. Mayor John Ronke said he was amazed at the cases given the prevalence of warning messages in the media. "We need to keep reinforcing the message to the community that everyone should take care around asbestos," he said. Slater and Gordon asbestos lawyer Margaret Kent said domestic asbestos cases were common because home owners did not realize asbestos was found in so many places. "It's not just in sheeting, it is around heaters, in eaves and splashbacks," she said. Ms. Kent said many domestic cases involved people sweeping up dust after renovation work. "Often the wives will be upset there is a mess so they will sweep up and not realise there is asbestos dust." Bayside council infrastructure services acting director Charles Turner said homeowners should use a professional contractor to responsibly remove and dispose of asbestos. "Like the rest of Australia, it is believed that the majority of unrenovated homes in Bayside built between the 1940s and late 1980s contain some form of asbestos," he said. When asbestos is disturbed the fibers become airborne and can cause lung disease if inhaled. Mr. Turner urged residents who believed asbestos had been disturbed in their home to contact the council. ASBESTOS UPDATE: QFRS Suspects Toxic Contamination in Razed House ----------------------------------------------------------------- Kirsty Nancarrow of The ABC NEWS reports that authorities are investigating whether an electrical fault caused a fire that destroyed a Cairns home on Jan. 22. The blaze broke out just after 7:00pm (AEST). Forensic police and fire officers have been combing through the charred contents of the house this morning. Fire investigator Mark Csukardy says the residents were home when the fire started and witnesses are still being interviewed. "There are reports that they were cleaning the house at the time and then noticed the fire there," he said. "There were reports of a faulty light switch but as I said we're investigating that further." Firefighters battled 15 meter flames which also threatened a neighboring property. Brad Tipping from the Queensland Fire and Rescue Service (QFRS) says crews had to use procedures for hazardous materials. "There was a possible asbestos contamination in this building due to its age and the materials it was constructed of," he said. "Procedures had to be followed to wash men down with their protective equipment and helmets and boots and then bag the equipment up to be sent away and cleaned." The home's 11 residents are staying with other family members. ASBESTOS UPDATE: 1,000 Km of Asbestos Piping Found in Ethekwini --------------------------------------------------------------- The publicly owned entity, formed in 2000, is an amalgamation of 38 municipalities who previously had little or no access to piped water or proper sanitation. Taking this responsibility in its stride, eThekwini Municipality has gone on to receive various certifications and recognitions as it continues to raise the standard of both drinking water and effluent sewage. eThekwini Municipality recently completed a project to replace 2,000 km of asbestos cement water pipes at a price of R2 billion. However, as some of the former municipalities eThekwini incorporated in 2000 kept poor records, Head of Water and Sanitation Neil Macleod knew there was a possibility hazardous piping still existed. "We used contractors to go and dig up other parts because we weren't sure what they were made of," he notes. "We found another 1,000 km of asbestos piping so there is still more to do in this area." A project to provide toilets for shack settlements is also moving ahead with 300 areas set to benefit from communal facilities by the end of the year. eThekwini has also moved forward with its pressure management projects to reduce static pressures in the city to cut non-revenue water by five% over the past year, which Macleod says is "starting to pay dividends." ASBESTOS UPDATE: Bristol-Myers Gives $7 Million to Cancer Patients ------------------------------------------------------------------ Mark Hall of The Mesothelioma Center relates that Bristol-Myers Squibb announced late last week that the company donated $6.9 million in 2011 to a non-profit that is dedicated to providing financial assistance to those in need of health treatments. This donation, made to HealthWell Foundation, will benefit mesothelioma patients who are faced with expensive treatment options like surgery, chemotherapy and radiation, which cumulatively can cost in the tens of thousands of dollars. Mesothelioma is the rare cancer of the lining of the lungs that is caused by asbestos exposure. Approximately 3,000 people are affected by this disease each year in the United States. The pharmaceutical giant, known for developing popular drugs like Plavix, Abilify and Reyatz, has stated that the donation to the HealthWell Foundation will better aid cancer patients with copayments, healthcare premiums, coinsurance and out-of-pocket expenses related to their disease. "Bristol-Myers Squibb has robust patient assistance programs for cancer patients and this contribution reinforces our commitment to helping patients gain access to the medicines they need," said John Tsai, who is vice president of the U.S. Medical division of the company. The company's involvement with mesothelioma is most notable through their development of Cisplatin, one of the primary chemotherapy drugs used to fight the rare cancer. The platinum- based drug was originally approved by the Food and Drug Administration (FDA) in 1978 and is often used in tandem with other treatments. Since the organization's inception in 2003, the HealthWell Foundation has been dedicated to ensuring that no patient is denied health care because of financial limitations. It works with patients one-on-one to determine what their medical needs are, and then to help cover them. Ranked by Forbes as "one of America's 20 most efficient charities," the non-profit has claimed to help over 100,000 patients already. The efficient and reputable organization helps a variety of cancer patients, including those with mesothelioma, by providing the assistance they need in a timely manner. Patients diagnosed with this rare cancer of the lining of the lungs typically survive between four and 18 months after diagnosis. During this period, expenses can quickly add up. The average cost of surgeries for cancers of the lung is about $40,000. Radiation treatment, which is often required on an ongoing basis, can cost approximately $2,000 a month. Chemotherapy treatment costs, though they vary from drug to drug, can range from a few thousand to as much as $30,000 over a multiple-week period. Because most treatments for mesothelioma are not considered extremely effective, many patients undergo multiple treatments which can make the total cost of care enormous. The relief that HealthWell can provide because of the Bristol- Myers Squibb $7 million donation will hopefully prove significant to the mesothelioma patients who need financial assistance. The non-profit's low overhead and efficient model should allow much of the donation to be passed along to patients in need. According to the drug company, the relationship between the two organizations stem from a shared vision of giving cancer patients widespread access to care, despite financial boundaries. "We are proud to support the HealthWell Foundation in its mission to reduce barriers to care for under-insured patients." Beyond the donation to HealthWell, Bristol-Myers Squibb has helped over 200,000 patients in 2011 by providing free prescription drugs, estimated at a value of $400 million. This was facilitated through the Bristol-Myers Squibb Patient Assistance Foundation, in addition to the company's other programs. The problem of rising medical expenses has become extremely evident over the previous few years. A 2011 study from the Dana- Farber Cancer Institute and the Duke University Medical Center stated that out-of-pocket cancer-related expenses average around $712 per month, with many of the study's respondents calling the costs a 'catastrophic problem.' ASBESTOS UPDATE: EPA Violator Faces 2 Years and $250,000 Fine ------------------------------------------------------------- Rick Plumlee of The Wichita Eagle reports that a Harper man pleaded guilty on Jan. 23 in federal court to violating a federal environmental law when he demolished a building more than three years ago that contained asbestos, U.S. Attorney Barry Grissom said. Hugh Barker, 55, pleaded guilty to failing to file notification of demolition with the Environmental Protection Agency. In his plea, he admitted that on Oct. 8, 2008, his company, Barker Sand and Gravel, began demolishing the Buckeye Building in Harper. Barker had a contract with the city of Harper for the demolition. An inspection by the Kansas Department of Health and Environment determined that the building's debris included floor tile containing asbestos. Sentencing is set for April 9. Barker faces a maximum of two years in prison and a fine up to $250,000. In 2008, Barker was sentenced to two years' probation after pleading guilty to dumping a pollutant into East Sand Creek in Harper County in 2006. ASBESTOS UPDATE: Princeton's Firestone Library Abatement Ongoing ---------------------------------------------------------------- Princeton University's News at Princeton reports extensive testing has found no elevated levels of asbestos in Firestone Library, where a small amount of debris containing asbestos was found in a B level office area last week. The debris was found to contain a small amount of asbestos, but air sample tests indicated that the area was safe for occupancy. As a precaution, the area was thoroughly cleaned by a licensed asbestos abatement contractor, and since then additional tests by an independent consultant of air samples in that area and other locations in the library have shown no airborne asbestos. An independent outside firm is continuing to conduct air sampling throughout the library, while a second independent firm is reviewing the air sampling results. The source of the debris was ductwork that was disturbed by ongoing renovation work on the floor above the office area. In 1996, when insulation containing asbestos in the library's ductwork was found to have come loose, the insulation was removed and the ductwork was cleaned and inspected. The air inside the ductwork was tested and found safe when the work was completed. Small amounts of debris may have remained stuck in crevices and corners, and it appears that movement of the ducts during the current renovation may have dislodged small amounts of debris along with dust that typically collects over time, according to the University's Office of Environmental Health and Safety. For the past several years, the University has conducted air sampling in different areas of the library as part of routine testing by the Office of Environmental Health and Safety or in conjunction with asbestos abatement projects. Air sample tests are the best way to determine if an asbestos hazard exists, and results from 0years of air sample tests in different parts of the library indicate no increased risk of asbestos-related disease. None of the samples tested have indicated elevated levels of asbestos. The U.S. Occupational Safety and Health Administration has established a workplace permissible exposure for asbestos of 0.1 fibers per cubic centimeter (f/cc) of air, averaged over eight hours per day and 40 hours per week. However, the clearance limit required for reoccupancy after an abatement is much more conservative (0.01 f/cc), and the University has chosen to use this significantly more stringent standard as its occupancy limit. During the ongoing renovations at Firestone all work that involves moving or cutting ductwork will be evaluated by the project team and, as required, handled by contractors who specialize in asbestos abatement. The contractors' work will be monitored by independent assessors. As is the case with all abatement work, the work area will be closed, and ducts in the area will be enclosed and separated from other areas. Air sample testing will continue throughout the duration of the project. Staff in the office area where the debris was found were informed about the incident last week. Library staff have received updates via email and during a regularly scheduled meeting to provide information about the ongoing renovations. ASBESTOS UPDATE: Contractor Imposed "Death Sentences" on Workers ---------------------------------------------------------------- Erica Bulman of 24 Hours Vancouver reports that an employer who knowingly used recovering addicts as young as 14 to demolish asbestos-contaminated houses without providing protective gear could be headed to jail. Arthur Moore of AM Environmental was scheduled to be sentenced on Jan. 24 for contempt after ignoring WorkSafeBC and B.C. Supreme Court orders to cease operation of his Surrey-based asbestos and drywall removal business. Court documents show Moore targeted at least 20 recovering addicts from the Lion Wellness Recovery House in Surrey as far back as 2008, knowing they needed work as part of their recovery program or risk being kicked out. "It's despicable. These are very vulnerable people who will do whatever it takes," said Lee Loftus, BC and Yukon Building and Construction Trades Council president. "He's imposed a death sentence on these people." Court documents show Moore forged reports concealing the presence of hazardous materials. He regularly exposed his workers to asbestos without their knowledge or proper safety equipment. Documents include affidavits from two employees who said they were told by Moore "to run away" if they saw anyone from the Workers' Compensation Board on job sites. After the injunction, Moore operated under Tri City Hazmat, Surrey Hazmat, BC Hazmat, and Effective Contracting. Last month, WorkSafeBC lawyer Scott Nielson asked Justice Richard Goepel to sentence Moore to six to 12 months jail time. WorkSafeBC statistics show over the past five years there was, on average, more than 50 deaths annually from work-related asbestos exposure. It usually takes 10 to 40 years before cancer, fibrosis or thickening of the lungs' lining manifest themselves. ASBESTOS UPDATE: Downtowner Abatement to Complete in 45 Days ------------------------------------------------------------ The Chatham Star Tribune reports that asbestos removal at the former Downtowner Motor Inn will be in full swing this week as the number of workers at the site will double to a total of 16. This work will continue for another 30 to 45 days until the process is complete. "During the later part of the asbestos removal you will see the demolition crews moving in," said Jerry Rigney, inspections director for the city of Danville's Community Development Department. Because of its high visibility and the more than two decades that it has stood empty, the building has become a focal point for blight eradication and redevelopment in the River District. Danville Industrial Development Authority purchased the property last year through a grant from the Danville Regional Foundation. The removal of this structure will begin what IDA and foundation officials believe will be a major transformation of the district. In addition to demolition of the Downtowner, sidewalk and streetscape improvements will begin this year on portions of Main and Union streets in what will be the first phase of the River District redevelopment The demolition crews, Rigney said, will use a high-reach excavator with a muncher that will crush the building's concrete. The crushed concrete will be hauled to a facility in Winston- Salem, N.C., where it will be crushed more finely. D. H. Griffin Wrecking Co. of Greensboro, N.C., is the demolition contractor. That contract was awarded in late December. Since the first of this month, the company has installed fencing around the perimeter of the building to secure the site. Workers also have been on site preparing for the removal of asbestos and other hazardous materials from the building. "They are working this week on the top floor," Rigney said. Asbestos was widely used as a building material until the mid- 1980s. It is only dangerous when the fibers become airborne and can be inhaled. Asbestos may be found in roofs, attic insulation, ceilings, walls, ductwork and floor tiles. Removing asbestos requires surfaces to be sealed and the use of safety equipment to depressurize and filter the air. Contaminant showers also have been constructed for use by workers before they leave the building each day. The asbestos is bagged, sealed and hauled away. Demolition is expected to be completed in July. The property then will be back-filled and seeded. No decision has been made on the future use. The Downtowner was constructed in 1963 at the corner of Main and Union streets, which at the time was Danville's busiest intersection. The seven-story hotel featured 116 rental rooms, including a rooftop penthouse, and 15 meeting rooms. Two eight-passenger elevators served the building. The Main Street entrance led to a restaurant, a nightclub and commercial tenant spaces. An underground area was set aside for valet parking. Built at a cost of $1 million, the Downtowner was part of a plan to make Danville a convention center, and with its location, it was expected to spark a revitalization of downtown. The building closed in 1986. ASBESTOS UPDATE: 2 Violators Indicted for Improper Abatement ------------------------------------------------------------ Whitney Clearman of The Metrowest Daily News reports that two men have been indicted by a Norfolk County grand jury for allegedly removing asbestos from a Medway rental home without following state guidelines for the process. David Einis, 57, of Weston, the owner of the single-family rental home, and Nicholas Pasquantonio, 41, who works as a Plainville- based heating contractor, were each indicted on Jan. 19 on two counts of violating the Massachusetts Clean Air Act. They are accused of failing to file a notice of asbestos removal with the state Department of Environmental Protection and failing to prevent asbestos emissions, Attorney General Martha Coakley's office said on Jan. 23. Pasquantonio was also indicted on charges of witness intimidation, according to the attorney general's office. Medway Board of Health Chairman Robert Collum said that he hasn't seen many cases with the toxin in the past 25 years. "I think that was only the second time we've come across asbestos," Collum said. Einis hired Pasquantonio of Johnny's Oil Service Inc. in Plainville, who is not a licensed asbestos contractor, in early December 2010 to replace the boiler in the Medway home where a family with several children live, according to information in a press release from the attorney general's office. Pasquantonio did not seal off the basement while he replaced the boiler, the release said. A spokeswoman from the attorney general's office declined to give the address of the house. After notification from the Medway Board of Health, the state Department of Environmental Protection inspected the home and found asbestos was improperly removed and released, according to the press release. Einis and Pasquantonio did not notify the DEP and did not follow proper procedure, according to the attorney general's office. The Department of Labor Standards requires that asbestos removal be performed by licensed contractors only, and that contractors give details on when the removal will occur and how asbestos will be removed, stored and disposed. Pasquantonio is also accused of going to the home and threatening one of the tenants, telling the person not to testify against him at trial after he found out he may be criminally charge, authorities said. The home has since been decontaminated, Department of Environmental Protection Spokesman Joe Ferson said on Jan. 23. Ferson said he thinks the family is still living in the home. Einis and Pasquantonio will be arraigned in Norfolk County Superior Court at a later date, according to the attorney general's office. Einis said he has no comment on the indictment. Pasquantonio was not available for comment. ASBESTOS UPDATE: Toxic Materials in Razed Turrella Factory Found ---------------------------------------------------------------- Emma Partridge of The St. George & Sutherland Shire Leader reports that cleaners were still removing bricks and asbestos sheets from the road and footpath more than 24 hours after a fire destroyed a Turrella factory on Jan. 22. The packaging and plastics factory owned by M&I Passalis burned to the ground on the corner of Turrella and Reede streets after a fire broke out at about 2am. The severity of the fire forced the closure of Turrella railway station, opposite the property, and nearby roads for about 12 hours. Police said there were no signs that the fire was lit deliberately but said police and Fire & Rescue NSW were still trying to determine the cause. St. George police Inspector Gary Ballard said five houses were evacuated on both Turrella and Reede streets. "There are no clues as to what started the fire at this stage," Inspector Ballard said. He said no one was injured and no one was inside the building at the time the fire broke out. Paul Gellatly from Ross Mitchell and Associates was managing the clean-up on Jan. 23 and said the building was structurally unsafe. "We have to make sure the footpath and road are safe before it's opened again . . . asbestos explodes when it is burned so it's not safe," Mr. Gellatly said. Police initially believed the factory to be owned by Michel's Patisserie after finding old branded packaging inside the building. A Michel's Patisserie spokesman said that the company did not own the building and had not been supplied with material from the factory for several years. ASBESTOS UPDATE: Crane Posts $157MM After-Tax Asbestos Provision ---------------------------------------------------------------- Crane Co., a diversified manufacturer of highly engineered industrial products, reported a fourth quarter 2011 net loss of $2.16 per share, compared to earnings of $0.66 per diluted share in the fourth quarter of 2010. Fourth quarter 2011 results include an after-tax asbestos provision of $157 million and an after-tax environmental provision of $20 million (totaling $3.05 per share). Fourth quarter 2010 results were impacted by net after-tax charges from Special Items of $0.02 per diluted share. Excluding these Special Items, fourth quarter 2011 earnings per diluted share increased 29% to $0.88 compared to $0.68 in the fourth quarter of 2010. Fourth quarter 2011 sales of $632 million increased $58 million, or 10%, compared to the fourth quarter of 2010, resulting from a core sales increase of $40 million (7%), an increase in sales from acquired businesses (net of divestitures) of $16 million (3%), and favorable foreign currency translation of $2 million. The operating loss in the fourth quarter of 2011 was $192.7 million compared to an operating profit of $53.7 million in the fourth quarter of 2010. Excluding Special Items, fourth quarter 2011 operating profit increased 26.3% to $79.3 million compared to $62.8 million in the fourth quarter of 2010, and operating profit margin increased to 12.6%, compared to 10.9% in the fourth quarter of 2010. Full Year 2011 Results Total sales in 2011 were $2.55 billion, an increase of 15% from $2.22 billion in 2010, resulting from a core sales increase of $217 million (10%), an increase in sales from acquired businesses (net of divestitures) of $60 million (3%), and favorable foreign currency translation of $51 million (2%). Operating profit for the full year 2011 was $42.3 million compared to $235.2 million in 2010. Excluding Special Items, 2011 operating profit increased 29.3% to $314.2 million compared to $243.1 million in 2010, and operating profit margin increased to 12.3%, compared to 11.0% in 2010. Full year 2011 earnings per diluted share declined to $0.44, compared to $2.59 in 2010. Excluding Special Items, 2011 earnings per diluted share increased 32% to $3.43 compared to $2.59 in 2010. Order backlog was $778 million at December 31, 2011 compared to $768 million at December 31, 2010. "We are pleased to report a record full year EPS of $3.43, excluding Special Items, in line with our most recently issued guidance and significantly better than the $2.80-$3.00 range for 2011 that we expected a year ago," said Crane Co. president and chief executive officer, Eric C. Fast. "Excluding Special Items, full year operating margin was 12.3%, a substantial improvement over 11.0% in 2010, and we expect to achieve our 13% operating margin target in 2012. The more stable trends we have experienced over the last several years enable us to extend our reserve for asbestos." Fourth Quarter 2011 Special Items As of December 31, 2011, the Company extended the time horizon of its estimate of asbestos liability from 2017 to 2021, reflecting stabilization in key trends, such as indemnity and defense costs and the number of claims filed against the Company. The following table shows the Company's estimate of its asbestos liability, net of insurance reimbursements and net of tax, of $277 million prior to extending the timeframe of the liability estimate; the $157 million effect of the extension; and the total of $434 million as of December 31, 2011. The Company estimates that its annual, after-insurance, after-tax cash outflow associated with its asbestos liability will generally be in the $40 - $50 million range through 2021, similar to the level of outflow experienced during 2010 and 2011. Additional information on the Company's asbestos liability exposure is available in its Form 8-K filed with the SEC as of this report. As of December 31, 2011, the Company increased its environmental liability for its legacy Superfund Site in Goodyear, Arizona by $30 million ($20 million after tax), reflecting changes in site remediation requirements and accrued costs through 2016. Cash Flow and Financial Position Cash provided by operating activities in the fourth quarter of 2011 was $84.8 million, after the effect of a $30 million discretionary pension contribution made in December, compared to $74.2 million in the fourth quarter of 2010. Free cash flow (cash provided by operating activities less capital spending) for the fourth quarter of 2011 was $77.8 million, compared to $66.8 million in the fourth quarter of 2010. For the full year 2011, cash provided by operating activities was $149.8 million compared to $133.5 million in 2010. Free cash flow for the full year 2011 was $115.1 million, compared to $112.5 million in the prior year, in line with our October guidance before discretionary pension contributions; discretionary pension contributions were $30 million and $25 million, respectively, in 2011 and 2010. The Company repurchased 1,706,903 shares of its common stock during 2011 at a cost of $80 million, including 650,773 shares in the fourth quarter for $30 million. The Company's cash position was $245 million at December 31, 2011, as compared to $211 million at September 30, 2011. Fourth quarter 2011 sales increased $10.9 million, or 7%, reflecting a $12.7 million increase (13%) in Aerospace Group sales and a decrease of $1.8 million (3%) in Electronics Group revenue. The Aerospace sales growth reflected higher OEM and aftermarket activity, with an increase in both commercial and military related demand. Segment operating profit increased by 17% and margins improved to 22.6% as the higher volume and margins in the Aerospace Group offset the modest decline in the Electronics Group. Aerospace & Electronics order backlog was $411 million at December 31, 2011 compared to $409 million at September 30, 2011 and $431 million at December 31, 2010. Segment sales of $45.0 million were equal to the fourth quarter of 2010, with slightly lower sales to recreational vehicle manufacturers offset by higher sales to transportation and building products customers. Operating profit and margins improved to $4.6 million and 10.1%, respectively, primarily reflecting the impact of higher selling prices and improved productivity. Merchandising Systems sales of $86.2 million increased $10.1 million, or 13%, primarily reflecting sales associated with the December 2010 acquisition of Money Controls. Operating profit and margins increased reflecting improved operating results in both Vending and Payment Solutions, including a positive contribution from Money Controls. Fourth quarter 2011 sales increased $35.8 million, or 13.7%, which included a core sales increase of $29.9 million (11.4%), an increase in sales from the acquisition of W. T. Armatur (WTA) of $4.8 million (1.9%), and favorable foreign currency translation of $1.0 million (0.4%). The sales increase was broad based across Fluid Handling and operating margin improved to 13%. Fluid Handling order backlog was $314 million at December 31, 2011, compared to $329 million at September 30, 2011 and $272 million at December 31, 2010. Fourth quarter 2011 sales of $30.9 million increased 3%, driven by continued improvement in industrial, transportation and upstream oil and gas related end markets. The operating profit increase reflected leverage of the higher sales volume. Full Year 2012 Guidance Sales for 2012 are expected to increase approximately 3-5% driven by a core sales increase of 5-6%, incremental sales from the WTA acquisition of less than 1%, partially offset by unfavorable foreign exchange of approximately 2%. Our 2012 earnings guidance is a range of $3.75 - $3.95 per diluted share, reflecting revenue and profit growth across all of our segments. On a comparable basis and before Special Items, 2011 earnings per diluted share were $3.43. Segment-specific sales and operating profit guidance will be provided at our Investor Day conference on February 16, 2012. The Company's 2012 free cash flow (cash provided by operating activities less capital spending) guidance of $160 - $190 million includes the effect of asbestos related cash flows. The Company will hold its annual Investor Day conference on Thursday, February 16 in New York City from 8:30 am to noon and will be available on the web at http://www.craneco.com/ About Crane Co. Crane Co. is a diversified manufacturer of highly engineered industrial products. Founded in 1855, Crane provides products and solutions to customers in the aerospace, electronics, hydrocarbon processing, petrochemical, chemical, power generation, automated merchandising, transportation and other markets. The Company has five business segments: Aerospace & Electronics, Engineered Materials, Merchandising Systems, Fluid Handling, and Controls. Crane has approximately 11,000 employees in North America, South America, Europe, Asia and Australia. Crane Co. is traded on the New York Stock Exchange "CR". ASBESTOS UPDATE: Paterno Might Have Been Exposed to Toxic Fibers ---------------------------------------------------------------- Tim Povtak at The Mesothelioma Center relates that the small-cell lung cancer that killed legendary former Penn State football coach Joe Paterno may have been caused by a long-ago exposure to asbestos Paterno, a non-smoker, died Sunday, Jan. 22, 72 days after he was diagnosed with what his son called a "treatable" lung cancer. The Mount Nittany Medical Center, where Paterno died, announced that Paterno died of "metastic small-cell carcinoma of the lung," an extremely aggressive form of cancer. Just as stunning as the speed of Paterno's decline was the remote possibility of Paterno getting this particular terminal disease. Non-smokers account for an estimated 15% of lung cancers, but almost none of those are the small-cell variety that Paterno had. "It's extremely rare to have small-cell cancer in a non-smoker," Barbara Campling, oncologist at Philadelphia's Kimmel Cancer Center, told the Philadelphia Inquirer. Small-cell lung cancer accounts for only 13% - 15% of all lung- cancer diagnosis, according to the American Cancer Society, and almost all are, or were, smokers. Paterno was neither. Outside of smoking, the only other risk factors for small-cell lung cancer that experts have agreed upon are second-hand smoke, being exposed to radon, or being exposed to asbestos, the naturally occurring mineral that was used so extensively in the 20th century. Although government regulations the past three decades have reduced dramatically the use of asbestos in new commercial and industrial products, it remains prevalent in homes, offices, stadiums and a myriad of products built before 1980. The exposure to asbestos fibers, which are unknowingly inhaled into the lungs, can cause a variety of respiratory illnesses, which can have a latency period of up to 50 years after exposure. Paterno, 85, coached for 46 years at Penn State, where he became the winningest coach in NCAA Division I history with 409 victories, two national championships and 37 post-season bowl games. More than 250 of his players reached the National Football League. His legendary career, though, ended when he was fired Nov. 9 amid a child-abuse sex scandal involving his longtime assistant coach, Jerry Sandusky. Although Paterno never was implicated in the scandal, although he failed to call the police when informed of the abuse in 2002, forever scarring his reputation. Paterno, one of the most famous coaches in all of sports, had built his program on a motto of "Success with Honor," always staying above the unsavory side of major college football. Two days after he was fired, during a follow-up visit to treat what he believed was a bronchial illness, he was diagnosed with small cell lung cancer. A week later, his family issued a statement announcing the lung cancer, but without the grim prognosis. "Doctors are optimistic he will make a full-recover," read the family statement. Small-cell lung cancer usually starts in the breathing tubes in the center of the chest. Cancer cells grow rapidly and create large tumors, which often spread quickly to other parts of the body, making it inoperable. And much like mesothelioma, a small- cell diagnosis usually is not made until the latter stages because symptoms don't present themselves very clearly. Paterno began chemotherapy and radiation treatments, which can be effective with small-cell lung cancer, but they were too toxic for his body and may have contributed to the speed of his decline. He fell at his home and fractured his pelvis Dec. 11. He went back to the hospital Jan. 13, due to complications from the cancer treatments. He died nine days later. ASBESTOS UPDATE: 60-Day Jail Term Too Light, Says Union President ----------------------------------------------------------------- CBC News reports that a Metro Vancouver employer who repeatedly exposed his demolition workers to asbestos has been sentenced to 60 days in jail. Arthur Moore was sentenced in B.C. Supreme Court Tuesday, Jan. 24 for contempt after ignoring court orders that he halt all demolition work after failing several times to provide protection for his workers while they handled asbestos. Lawyers from B.C.'s Workers Compensation Board had asked that Moore be sent to jail for six months to one year. "Thankfully, at least one time in all the time I've been in this province, an employer is going to jail for basically giving the death sentence to a whole lot of workers," B.C. Federation of Labour president Jim Sinclair said after the sentence was handed down. But Sinclair said the 60-day jail term is too light a punishment, and called on the Crown to pursue criminal charges against Moore. "The system is still fundamentally broken," Sinclair said. "[Moore] should have been charged with criminal neglect as soon as he did it." Moore often hired recovering addicts -- some as young as 14 -- then knowingly exposed them to asbestos without adequate protective equipment, according to court documents. His business operated in Surrey and other cities under the name AM Environmental, Tri City Hazmat, Surrey Hazmat, Pro Scan Environmental and other names. A warrant was issued for Moore's arrest in October. "Over the last few years, he has exposed at least 50 different workers to asbestos products in the demolition," said Lee Loftus, spokesman for the B.C. and Yukon Building and Construction Trades Council. "This is going to be a pretty rare opportunity to see an employer that does this type of stuff actually go to jail for what he is doing." Loftus said he has worked in the asbestos industry and found it "atrocious" that someone would operate a demolition business in the way Moore did. On average, 50 B.C. workers a year die from cancer and other illnesses caused by workplace asbestos exposure, Loftus said. The installation of asbestos fiber as insulation was halted in most of North America in the 1970s due to extensive evidence of its toxicity. ASBESTOS UPDATE: Belluck & Fox LLP Wants Canadian Mines Closed -------------------------------------------------------------- Workers have stopped digging deadly asbestos fibers from Canadian mines for the first time in 130 years, and a descendant of the man who started the country's first asbestos mine recently called for a permanent end to the country's involvement in the trade, according to the Montreal Gazette. New York mesothelioma attorney Joseph W. Belluck agrees. "Too many lives in America and around the world have already been lost due to asbestos exposure," said Belluck, a partner in the New York City personal injury firm of Belluck & Fox, LLP. "To protect people from more asbestos-related diseases, the asbestos that remains in the Canadian mines should be left in the ground." At one point in the 20th century, Canadian mines were the source of 85% of the world's supply of asbestos -- a carcinogenic product that has caused countless deaths from mesothelioma and other asbestos-related cancers and diseases. As of 2010, Canada was responsible for about 5% of worldwide asbestos production, according to the U.S. Geological Survey. That supply was cut off when the last two asbestos mines in the Canadian province of Quebec stopped operations in 2010. While this marked the first time in since the 1880s that no asbestos was mined in Canada, it might not be a permanent halt. In a Canadian Press article, the president of one of the mining companies insisted that his mine is not closed. It is merely awaiting a loan guarantee from the Quebec government so it can access new deposits that could turn out asbestos for another 50 years, he said. However, many in Canada are urging the government to bar the asbestos mines from resuming operations, including Susan Henry, whose family founded Canada's first asbestos mine in 1878. Henry told the Montreal Gazette last week that she is participating in a letter-writing campaign that calls on the government to end the country's exportation of asbestos. Belluck, the New York mesothelioma lawyer, supported the activists' calls for keeping the Canadian asbestos mines shuttered. "I have seen the tragic consequences that asbestos has had for countless people in this country who were exposed to the cancer- causing fibers. It is simply inconceivable that our neighbor would still allow companies to mine and export asbestos when its tragic consequences are so clear," Belluck said. His firm represents victims of asbestos exposure who have developed diseases related to the substance. One type of cancer caused by asbestos is mesothelioma, a disease that often lies latent for decades after exposure before aggressively attacking victims' ability to breathe. There is no known cure for mesothelioma, and most patients die less than two years after diagnosis. Because asbestos-related diseases usually cause rapid deterioration after symptoms appear, Belluck said it is important for patients to seek prompt medical help from specialists. They should also contact a qualified mesothelioma attorney for aggressive legal representation to ensure that they and their families secure all of the compensation they are entitled to receive. About Belluck & Fox, LLP Belluck & Fox, LLP, is a nationally recognized law firm that represents individuals with asbestos and mesothelioma claims, as well as victims of crime, motorcycle crashes, lead paint and other serious injuries. The firm provides personalized and professional representation and has won over $400 million in compensation for clients and their families. Partner Joseph W. Belluck is AV-rated by Martindale-Hubbell and is listed in Best Lawyers in America, New York Magazine's "Best Lawyers in the New York Area" and in Super Lawyers. Mr. Belluck has won numerous cases involving injuries from asbestos, defective medical products, tobacco and lead paint, including a recent asbestos case that settled for more than $12 million. Partner Jordan Fox is a well-known asbestos and mesothelioma attorney who has been named to the Best Lawyers in America, New York Magazine's "Best Lawyers in the New York Area" and to Super Lawyers. On two separate occasions his verdicts were featured as the National Law Journal's Largest Verdict of the Year. He recently secured verdicts of $32 million and more than $19 million on behalf of individuals who had contracted mesothelioma from asbestos exposure. In September, Belluck & Fox, LLP, won a coveted spot on a list of America's best law firms, which was published jointly by U.S. News & World Report and Best Lawyers magazine. The listing showcased 8,782 different law firms ranked in one or more of 81 major practice areas. ASBESTOS UPDATE: Law Firm Cites Fewer Cases But Higher Jury Awards ------------------------------------------------------------------ Danziger & De Llano, a leading Houston law firm specializing in asbestos-related liability cases, reports that 2011 saw a continuation of a decade long trend toward fewer such cases nationwide but higher individual jury awards. And Houston is broadly in line with these national trends, says Danziger & De Llano partner Paul Danziger -- paul@dandell.com "As more companies bring their work site operations into full compliance with asbestos safety laws there has been a dividend in lives saved," notes Danziger. "Sadly, though, there are also fewer victims of past asbestos abuse who survive each passing year." Danziger adds that courts have been more successful in reducing the backlog of asbestos cases in recent years. The figures on asbestos related liability cases compare the years 2001 and 2011. According to Danziger, whose law practice handles cases from across the entire nation, while the total number of cases in the nation's courts have fallen by roughly 20% in that period -- today's jury awards are up to two times greater than those of 2001. "More public awareness of lax past safety practices in industry, along with legislation which better safeguards worker rights, have helped juries arrive at damage awards which are much more appropriate," he notes. "Part of the dynamic helping push jury awards up is the greater availability of public information on asbestos dangers." Danziger's own law firm sponsors Mesocare.org, a public service website with links to resources available to families affected by mesothelioma. About Danziger & De Llano In practice since 1993, the law firm of Danziger & De Llano provides legal assistance to those who have suffered loss due to the negligent actions of others. For more information visit their Web site at http://www.mesothelioma.us/or phone 1-800-747-4060. ASBESTOS UPDATE: A.W. Chesterton and 61 Others Face Lawsuit ----------------------------------------------------------- Kyla Asbury of The West Virginia Record reports that a woman is suing 62 companies she claims are responsible for her father's death. On Jan. 7, 2010, Carl Richard Butler, Sr., was diagnosed with esophageal cancer, from which he died on April 18, 2011, according to a complaint filed Dec. 30, 2011, in Kanawha Circuit Court. Deidra G. Hill claims the defendants exposed her father to asbestos and/or asbestos-containing products during his career as a machinist, laborer and pipefitter. The defendants knew or should have known of the dangers of asbestos and failed to warn Butler, according to the suit. Hill is seeking a jury trial to resolve all issues involved. She is being represented by James A. McKowen -- jmckowen@jfhumphreys.com -- and Bronwyn I. Rinehart -- brinehart@jfhumphreys.com. The case has been assigned to a visiting judge. The 62 defendants named in the suit are A.W. Chesterton Company; Allied Chemical Corporation; Armstrong International, Inc.; Aurora Pump Company; Brand Insulations, Inc.; BWIP, Inc.; Catalytic Construction Company; Certainteed Corporation; Chicago Pump Company; Cleaver-Brooks, Inc.; Columbus McKinnon Corporation; Crane Co.; Crown Cork & Seal USA, Inc.; Dezurik, Inc.; Dravo Corporation; Flowserve FSD Corporation; Flowserve US, Inc.; FMC Corporation; Foseco, Inc.; Gordon Gasket & Packing; Goulds Pumps, Inc.; Greene Tweed & Company; Grinnell, LLC; I.U. North America, Inc.; IMO Industries, Inc.; Industrial Holdings Corporation; Industrial Supply Solutions; Ingersoll-Rand Company; Insul Company, Inc.; ITT Corporation; Kentucky Power Company; Lockheed Martin Corporation; McJunkin Corporation; Morgan Engineering Systems, Inc.; Mueller Steam Specialty; Nagle Pumps, Inc.; Nitro Industrial Coverings, Inc.; Oglebay Norton Company; Ohio Valley Insulating Company, Inc.; Pneumo Abex Corporation; Premiere Refractories, Inc.; Reading Crane; Riley Power, Inc.; Roper Pump Company; Rust Constructors, Inc.; Rust Engineering & Construction, Inc.; Schneider Electric USA, Inc.; Spirax Sarco, Inc.; State Electric Supply; Sterling Fluid Systems (USA), LLC; the AllianceMachine Company; the F.D. Lawrence Electric Company; the William Powell Company; UB West Virginia, Inc.; United Engineers & Constructors; Viking Pump, Inc.; Vimasco Corporation; Warren Pumps, Inc.; West Virginia Electric Supply; WT/HRC Corporation; Yarway Corporation; and Zurn Industries, Inc. Kanawha Circuit Court case number: 11-C-2327 ASBESTOS UPDATE: Travelers Wins $420.4 million Ruling in NY ----------------------------------------------------------- Ben Berkowitz at Thomson Reuters News & Insight reports that a New York appellate court affirmed a $420.4 million ruling in favor of insurer Travelers Cos, handing it a victory in one of the longest- running and most complex asbestos-related litigations in history. The dispute has to do with the obligations of certain reinsurers to Travelers, which joined in payments of nearly $1 billion to cover asbestos claims against the company Western MacArthur. Travelers subsequently sought to recover some of its payments from its reinsurance companies. Among those reinsurers is the U.S. unit of industry leader Munich Re and units of the insurer and reinsurer ACE Ltd. A spokeswoman for Munich Re Americas declined to comment. An ACE spokesman could not immediately be reached for a comment. In October 2010 a lower New York court ruled that the reinsurers were obliged to help cover Travelers. That ruling was affirmed on appeal on Tuesday, Jan. 24. The Appellate Division, First Department, ruled 4-1 that the reinsurance companies were bound by a concept known as the "follow the fortunes doctrine," which holds that reinsurers share the burdens taken on by the insurance companies with which they do business. The appellate court found that the lower court "correctly determined that the follow-the-fortunes doctrine required defendants to accept the reinsurance presentation made by (Travelers unit) USF&G." A Travelers spokesman could not immediately comment on the ruling. The facts behind the case date to 1948, when USF&G first wrote a liability insurance policy for Western Asbestos Co. By the late 1970s, people harmed by asbestos began to sue Western Asbestos' successor company, Western MacArthur, which in 1993 sued USF&G and two other insurers seeking indemnification. In 2002, the sides reached a settlement, which resulted in Western MacArthur going into bankruptcy. USF&G then sought indemnification from its reinsurers. The one dissenter in Tuesday's ruling was Justice Sheila Abdus- Salaam, who said there was a genuine dispute as to whether some of the settlement USF&G reached with Western MacArthur was subject to the reinsurance treaties. Besides the length of the litigation, the case is notable because of the high-profile law firms involved. Travelers was represented on the appeal by Simpson Thacher & Bartlett, while Wachtell, Lipton, Rosen & Katz represented Munich Re and Boies, Schiller & Flexner represented ACE. The case is United States Fidelity & Guaranty Company vs. American Re-Insurance Co, New York Supreme Court, Appellate Division, First Department, No. 604517/02. ASBESTOS UPDATE: Lung Cancer in Carolina Textile Workers Rising --------------------------------------------------------------- About Mesothelioma.net reports that researchers report that textile workers in North Carolina and South Carolina who were exposed to asbestos had significantly increased incidence of lung cancer. Asbestos, a mineral fiber used in thousands of products from building materials to textiles, is associated with serious respiratory diseases including asbestosis, a scarring of the lung, lung cancer and mesothelioma, a cancer of the lining of the lung and abdomen. In the new study published in January issue of the journal Occupational and Environmental Medicine, researchers tracked the status of more than 6,100 textile workers who had been employed at four Carolina textile mills that previously used asbestos in manufacturing. From the 1950s through the early 1970s, textile plants converted chrysotile asbestos, typically imported from Canada, and cotton fibers into yarn and woven materials. That created an occupational hazard of asbestos exposure for unsuspecting textile workers, who typically did not wear any breathing protection. The researchers, based at the University of Nebraska, Duke University and the University of North Carolina, reported a significantly elevated rate of death from lung cancer among the textile workers as compared to the general population. They determined that 3,356 of the textile workers employed in the mills had died as of 2003, and a disproportionate number had died of lung cancer, according to death certificate data. The researchers also found a strong correlation between the increased mortality rate of lung cancer and the workers' cumulative occupational exposure to asbestos. The cumulative exposure to asbestos varied considerably among the four plants. Exposure to asbestos usually occurs by breathing air in workplaces contaminated with microscopic asbestos fibers or swallowing asbestos fibers. Typically, workers do not experience symptoms of mesothelioma or other asbestos disease for 20 years to 40 years after exposure to asbestos. Another study published last year in the journal Lung Cancer found that textile workers in China who were exposed to asbestos had an increased risk of dying of lung cancer, mesothelioma and all forms of cancer. The trend was most pronounced among textile workers who had a high exposure to asbestos and also were smokers. ASBESTOS UPDATE: $600MM Thorpe Settlement Trust Ruling Reversed --------------------------------------------------------------- Tim Hull at Courthouse News Service reports that insurance companies can challenge a $600 million trust created to settle thousands of asbestos-related claims against a California insulation company, the 9th Circuit ruled Tuesday, Jan. 24. Burdened by some 2,000 asbestos-related lawsuits and with more on the horizon, Thorpe Insulation and its subsidiary, Pacific Insulation, filed for Chapter 11 bankruptcy protection in 2007. A family-owned company, Thorpe installed and removed asbestos- insulation products in Southern California from the late 1940s to the early 1970s in both industrial and commercial buildings. During the last 30 years, it has faced about 12,000 lawsuits for wrongful death and personal injury; since 1978, its insurers have paid out more than $180 million defending and settling such claims, according to the ruling. A Los Angeles federal judge approved a reorganization plan for the companies in 2009 that established the Thorpe Insulation Settlement Trust to handle present and future asbestos-related claims. Thorpe's settlements with 13 insurers funded the trust with more than $600 million in cash and securities, the ruling states. But objections came from insurance companies that had refused to settle with Thorpe -- Continental Insurance Co., National Fire Insurance Co. of Hartford, Motor Vehicle Casualty Co., Central National Insurance Co. of Omaha and Century Indemnity Co. Among their various claims, the insurers said that the court approved a settlement built in bad faith by attorneys with conflicts of interest. U.S. District Judge Dale Fisher affirmed the plan nonetheless, finding that it pre-empted any state-law contracts among the non- settling insurance companies. At any rate, those companies did not have standing to challenge the plan in bankruptcy or federal court because it was "insurance neutral, Fisher said. But the federal appeals court in Pasadena reached a different conclusion. Though the three-judge panel agreed that the plan overrides state-level contracts, it reversed as to standing on Jan. 24. "Appellants argue that the plan is not insurance neutral because of possible preclusive effects of the plan, because they are responsible for claims channeled to the trust, because the trust permits direct file suits against appellants, because they are a contingent beneficiary of the trust, and because the plan and trust distribution procedure can be changed without court supervision," Judge Ronald Gould wrote for the unanimous panel. "We conclude that the plan may economically affect appellants in substantial ways. A plan is not insurance neutral when it may have a substantial economic impact on insurers." "Because the plan had likely effects that would increase economic exposure of the insurer appellants to asbestos claimants, they had a right to be heard fully and fairly before the plan was finalized," Gould added. On remand, the District Court should "return the case to the bankruptcy court to give appellants the opportunity to present their proof and argument." As the plan is already in motion, Gould acknowledged that this decision throws a wrench into the proceedings. "There is no entirely tidy way to resolve this case because the plan has proceeded without stay and without full input from insurer parties who will be economically affected by the plan," he wrote. "But we have concluded that the starting place is for us to reverse the judgment of the District Court, and to remand to the District Court with instructions that it remand to the bankruptcy court to permit appellants to submit their proof on all issues they previously preserved." No one with the Thorpe Insulation Settlement Trust was immediately available. ASBESTOS UPDATE: Abatement Issues Halt Dearborn Towers Liquidation ------------------------------------------------------------------ Jessica Carreras at the Dearborn Patch reports that the planned sale of the Dearborn Towers has hit a road block, Mayor Jack O'Reilly confirmed. A concern over asbestos in the property has caused the need for further inspection before a deal is reached with any buyer. The city publicly announced its intention to sell the Clearwater, FL, retirement property in late 2010, after voters approved the move in 2007. Prospective buyers were numerous, according to the city. But Mayor O'Reilly explained that an evaluation of the property is needed "to determine how (the asbestos) will impact remodeling and what is the extent of it." While evaluation costs will likely be in the tens of thousands, the city is also taking a hit to revenues -- and to the general fund -- long as the property is still in their possession. City Council on Jan. 24 approved an insurance contract for the facility in the amount of $136,647.87 plus applicable taxes. The amount is a $5,000 increase from last year. However, Council President Tom Tafelski said that the city was advised to keep it insured "until we sell it and/or decide what the final course of action is." According to a budget memo written by O'Reilly in advance of the fiscal year 2011-12 budget approval, expenses for Dearborn Towers exceeds income by $200,000 to $300,000 each year. Additionally, it is expected that working capital for the property will be used up by December 2012. As of 2011, the towers had a 33% vacancy rate. The $6 million of revenue expected to be generated by the sale of the towers was included in the city's FY 2011-12 budget -- meaning that the continued delay of the sale could leave the city with an even larger gap to close as they balance the budget for FY 2012- 13. ASBESTOS UPDATE: CPSM Updates Information on Automotive Products ---------------------------------------------------------------- Clapper Patti Schweizer & Mason are mesothelioma attorneys who, for more than 30 years, have been representing professional and home mechanics who have been injured by automotive products containing asbestos. Having seen the devastation a diagnosis of mesothelioma causes to mechanics and their families, CPSM aims to provide the latest rules and regulations that can help prevent exposure and protect those in the industry from asbestos related diseases. CPSM has updated the section on their website devoted to auto mechanics and clutch and brake repair workers, adding all the essential information about the Better Brakes Rule, a recently passed law in Washington that applies to the automotive industry. While the use of asbestos was becoming more and more regulated in the United States in the mid to late 1980's, asbestos continued to be added to brakes and clutches long past this time. The risk of exposure to mechanics remains high as millions of older model cars contain asbestos parts and asbestos clutch linings, brake pads and shoes can still be found in the aftermarket. This puts professional as well as home mechanics at risk of deadly exposure which decades later can develop into serious asbestos related diseases. The Better Brakes Rule, overseen by the Department of Ecology seeks to reduce the risk of exposure to toxic materials to not only protect human health but also that of the environment. Contamination occurs when repairing or removing asbestos products as well as in the general wear and tear that causes break down of parts, leaving deposits of toxic materials on roadways that eventually end up in streams, rivers and water sources. To prevent this, the basic provisions of the Better Brakes Rule, according to Ecology, are: (i) Brake pads and shoes manufactured after January 1, 2014, must not contain asbestos, hexavalent chromium, mercury, cadmium, or lead. Auto shops and other distributors of brakes will be able to sell any existing inventory for ten years. (ii) Brake pads manufactured after January 1, 2021, must not contain more than 5% copper by weight. (iii) Beginning in 2015, Ecology will review relevant information and consult with a committee of experts to determine if alternative brake friction materials, containing less than 0.5 percent copper, are available. (iv) Eight years after Ecology determines that alternative brake friction materials are available, brake pads containing more than 0.5% copper may not be sold in the state. (v) Brake manufacturers will use accredited laboratories and certify to Ecology that their brake pads and shoes comply with the law and will mark proof of certification on all pads and packaging offered for sale in Washington. (vi) Ecology will track data provided by manufacturers to ensure that concentrations of nickel, zinc, and antimony in automobile brake pads do not increase by more than 50%. ASBESTOS UPDATE: Calif. Ct. Favors Crane Co. in Liability Suit -------------------------------------------------------------- Crane Co. and Warren Pumps LLC made valves and pumps used in U.S. Navy warships. The companies were sued for wrongful death of Patrick O'Neil who served in the Navy. Mr. O'Neil's death was allegedly caused by asbestos released from external insulation and internal gaskets and packing, all of which were made by third parties and added to the pumps and valves post sale. This case asks if a product manufacturer is liable for injuries caused by adjacent products or replacement parts that were made by others and used in conjunction with the manufacturer's product. In a Jan. 12, 2012 memorandum and opinion, Justice Carol Corrigan of the Supreme Court of California ruled that a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer's product unless that manufacturer's own product contributed substantially to the harm, or the manufacturers participated substantially in creating a harmful combined use of the products. The Court concluded that the defendants were not strictly liable for Mr. O'Neil's injuries because (a) any design defect in defendants' products was not a legal cause of injury to Mr. O'Neil, and (b) the defendants had no duty to warn of risks arising from other manufacturers' products. The case is O'Neil v. Crane Co., No. S177401 (Calif.). A copy of Justice Corrigan's Decision is available at http://is.gd/Pju66j from Leagle.com ASBESTOS UPDATE: Ill. Ct. Remands Suit vs. Rockwell to State Court ------------------------------------------------------------------ Thomas Perakslis sought damages for lung cancer that he contracted allegedly as a result of exposure to asbestos during his employment as a sheet metal worker at the General Dynamics Shipyard from 1967 until 1973. The case was filed originally in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois, against Rockwell Automation, Inc., individually and as successor by merger to Allen Bradley Co. and as successor-in- interest to Reliance Electric. Rockwell has removed the case to the U.S. District Court for the Southern District of Illinois invoking the so-called "federal officer" removal statute pursuant to Section 1442 of the Judiciary and Judicial Procedure. In a Jan. 13, 2012 memorandum and opinion, District Judge G. Patrick Murphy remanded the case to the Circuit Court for lack of federal subject matter jurisdiction. The District Court noted that Rockwell's papers in support of removal, including the affidavit of Thomas F. McCaffery, a retired Commander in the involved Navy ship, demonstrate that Rockwell or its predecessor-in interest were subject to very extensive supervision by the USN in designing and manufacturing equipment for military vessels. However, the District Court held, extensive governmental supervision, without more, is insufficient to establish federal officer jurisdiction. The District Court stated that it is mindful that, because federal officer removal is rooted in "an anachronistic mistrust of state courts' ability to protect and enforce federal interests and immunities from suit," although that jurisdiction is read "expansively" in suits involving federal officials, it is read narrowly where, as in this case, only the liability of a private company purportedly acting at the direction of a federal officer is at issue. The case is Perakslis v. 3M Co., Civil No. 11-1111-GPM (Ill.). A copy of Judge Murphy's Decision is available at http://is.gd/OAUhgefrom Leagle.com. ASBESTOS UPDATE: Ct. Denies Summary Judgment in Suit vs. Sovereign ------------------------------------------------------------------ Casa Di Roma Furniture, Inc., alleged asbestos contamination of the second floor of premises leased by it from Sovereign Bank that occurred during the replacement of the premises' roof. Sovereign moved for summary judgment dismissing the complaint and approving its cross-claim for full indemnification from ABF Environmental, Inc. Casa Di Roma also moved for summary judgment on the issue of liability in its favor as against Sovereign. John Cambio, subcontractor working on the repairs, also moved for the dismissal of Casa Di Roma's causes of action insofar as they are directed at him, individually. In a Jan. 13, 2012 memorandum and decision, Justice Carolyn E. Demarest of the Supreme Court in Kings County denied Sovereign's summary judgment motion after finding that there exists material and triable issues of fact as to the presence of asbestos at the leased premises. Justice Demarest also denied Casa Di Roma's summary judgment motion holding that there also exists triable issues of fact regarding alleged negligence in the abatement of the asbestos and the reasonableness of Sovereign's efforts to abate the asbestos condition. The Court granted Mr. Cambio's motion for summary judgment dismissing Casa Di Roma's causes of action as against him, individually. The Court pointed out that there is no showing of any tort committed by Mr. Cambio nor any violation of any municipal law upon which liability could be predicated, thus he is entitled to summary judgment dismissing the complaint as against him. With regards to Sovereign's cross claims against ABF, the Court denied Sovereign's request finding that Sovereign has shown that it was not negligent and any liability on its part would be purely statutory and vicarious and ABF has failed to raise a triable issue of fact, thus Sovereign is entitled to conditional common- law indemnification as against ABF. The case is Casa Di Roma Furniture, Inc. v. Sovereign Bank, 40537/07 (N.Y.). A copy of Judge Demarest's Decision is available at http://is.gd/oNLgypfrom Leagle.com. ASBESTOS UPDATE: Sealy Corp. Has No Plan to Renovate Plants Yet --------------------------------------------------------------- Sealy Corporation owns certain factories that contain asbestos. Current regulations require that the Company remove and dispose of asbestos if the factory undergoes major renovations or is demolished. Although the Company is not required to remove the asbestos unless renovation or demolition occurs, it is required to monitor and ensure that it remains stable and is required to notify any potential buyer of its existence. The Company has not recognized asset retirement obligations in its financial statements for asbestos at any facilities because management believes that there is an indeterminate settlement date for the retirement obligation as the range of time over which the Company may be required to remove and dispose of the asbestos is unknown or cannot be estimated. The Company currently has no plans to demolish a factory or to undertake a major renovation that would require removal of the asbestos at any of these other facilities. Management will continue to monitor this issue and will record an asset retirement obligation if a determinate settlement date becomes known or estimable which is required in order to estimate an obligation, according to the Company's January 18, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended November 27, 2011. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2012. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter Chapman at 240/629-3300. * * * End of Transmission * * *