The first asbestos court case, most people assume was one of the precedent-setting Johns-Manville cases in the late 1960s here in the U.S. They’re partly right. By the early 1970s, Kazan Law became involved with these asbestos cases and helped establish the groundbreaking legal remedy of filing a civil suit against a company in addition to workers’ compensation claims.

Unfortunately, this sea change in asbestos litigation occurred about fifty years too late for Nellie Kershaw, the very first documented asbestos court case.

Nellie Kershaw, an Asbestos Spinner

Nellie Kershaw’s short tragic life began in 1891 in the industrial northwest of England in a town near Manchester in a town called Rochdale. It was located in a region known as a center for the asbestos industry. She left school in 1903 at age 12 to work in a cotton mill. At the age of 26, she started working for Turner Brothers Asbestos. Her job title was that of a rover, and it involved spinning asbestos fibers into yarn.

Turner Brothers Asbestos was once the largest asbestos producer in the world. It owned mines in Canada and southern Africa as well as factories in the north of England. It was there that the mineral was processed into a spun yarn. In the early twentieth century the company boasted that ‘new uses for asbestos are constantly being discovered, the industry may be regarded as having touched only the fringe of its immense possibilities’. Nellie Kershaw’s death in 1924 at age 33 would begin to change that.

Asbestos Harm Denied By Employers

By the time she was 29 years old, Nellie began having the first symptoms asbestos-related disease. In 1922, she became too ill to work. By then she was married and had a little daughter born in 1920. A physician diagnosed that she was suffering from “asbestos poisoning.” Because her illness was related to her work, England’s National Health Insurance said she was ineligible for sickness benefits and told her she to seek financial support from Workers Compensation. But Turner Brothers feared setting a precedent that might lead other asbestos-sickened workers to ask them for money. They refused to pay any benefits to Nellie even as her situation became more desperate. Asbestos-related illness was not a recognized occupational disease then, and Turner Brothers instructed their insurance company to “repudiate the claim” as it would be “exceedingly dangerous” to accept “any liability whatever in such a case.”

Turner’s management wrote to Nellie’s doctor attacking his diagnosis. They wrote, “We repudiate the term “Asbestos Poisoning”. Asbestos is not poisonous and no definition or knowledge of such a disease exists. Such a description is not to be found amongst the list of industrial diseases in the schedule published with the Workmen’s Compensation Act.” But he did not back down.

Nellie herself pleaded in vain with her former bosses for compensation for her asbestos-related illness. In a letter that has been preserved she wrote, “What are you going to do about my case? I have been home 9 weeks now and have not received a penny – I think it’s time that there was something from you as the National Health refuses to pay me anything. I am needing nourishment and the money, I should have had 9 weeks wages now through no fault of my own.”

None ever came. She died in poverty on March 14, 1924 and was buried in an unmarked pauper’s grave.

Act of Parliament Gives Nellie a Posthumous Victory

Nellie’s premature death and her doctor’s insistence that it was due to “asbestos poisoning” forced the local coroner to initiate a formal inquest in court. Documents show that Turner Brothers instructed their attorney to attend the inquest and “evade any financial liability for Mrs. Kershaw’s death.”

Dr William Edmund Cooke, a pathologist and bacteriologist, called in during the autopsy to examine Nellie’s lungs, testified that he saw visible “particles of mineral matter … of various shapes, but the large majority have sharp angles.” When he compared these particles with samples of asbestos dust, Dr. Cooke concluded that the particles in Nellie’s lungs “originated from asbestos and were, beyond a reasonable doubt, the primary cause of the fibrosis of the lungs and therefore of death”.

Nellie’s death certificate, issued April 2, 1924 lists “Fibrosis of the lungs due to the inhalation of mineral particles” as the cause of her death.

What really brought the case to light was Dr. Cooke’s decision to write a full medical paper about it in 1927 and publish it in the British Medical Journal. In it, he gave Nellie’s disease the name by which it is still known: “pulmonary asbestosis.” It became the first asbestos case to be described in medical literature and the first published report of disease attributed to occupational asbestos exposure.

Dr. Cooke’s article prompted Parliament to call for a full investigation into the effects of asbestos. The results of the report led to Parliament passing the first Asbestos Industry Regulations in 1931.

However, Turner Brothers Asbestos never was made to accept liability for Nellie’s death, paid no compensation to her bereaved family and refused to contribute towards funeral expenses as it “would create a precedent and admit responsibility.”

This attitude continued, and spread to the US where it remains the practice of American asbestos defendants and their insurance carriers. But 40 years ago, specialized American trial lawyers like those at our firm began to stand up for asbestos company victims and lead the fight to get them justice. We have ’leveled the playing field’ and forced the asbestos industry to pay tens of billions of dollars to those they have hurt and killed. No wonder big business hates trial lawyers!

The Female Face of Asbestos Tragedy

England’s leading anti-asbestos advocate, Laurie Kazan-Allen, who heads International Ban Asbestos Secretariat and also happens to be my sister, recently wrote about Nellie Kershaw and other British female victims of asbestos exposure:

“Nowadays, Britain has the unwelcome distinction of having the world’s highest mortality rate from the asbestos cancer, mesothelioma. Historically, male mesothelioma deaths have dominated the statistics with, at times, six times as many male as female fatalities. Considering the lower death rate amongst British women, it is of interest to note that so many of the landmark cases through which the national asbestos reality has been revealed relate to the tragic experiences of female victims. In factories and schools, at home and at work, British women have paid with their lives for the asbestos industry’s profits.”

Mesothelioma patients did not choose to be exposed to asbestos and develop this disease. But every mesothelioma patient can and should choose the kinds of medical care they wish to receive as the disease progresses.

By deciding your options early, you can ensure your quality of life and avoid having your family guess your wishes or make critical medical care decisions for you under stress.

California law provides individuals a way to make their health care wishes known and considered when they become unable to make these decisions themselves. The Advanced Health Care Directive is the legal document that allows patients to make their end-of-life care choices ahead of time.

The Two Parts of the California Advance Care Directive

There are two basic kinds of health care documents everyone with mesothelioma should have. First, you need a document naming a trusted person to direct your health care if you are unable to do so yourself. This document is known as a durable power of attorney for health care. It does not give this person the right to make legal or financial decisions for you. That is a different kind of power of attorney.

Second, you need a document that specifies the types of medical treatment you would or would not like to receive in certain situations. This document is often known as a living will.

In California, these two documents are combined into a single form called an advance health care directive.

Writing an advance care directive may be difficult. You need to:

• Know and understand your treatment options
• Decide future treatment options you may want
• Discuss your choices with your family

Although this document does not need to be created by an attorney, you should already be working with an attorney to prepare an estate plan, usually including a family trust, and that attorney should include preparation of these forms as part of the services provided.

Why Mesothelioma Patients Also Need a POLST

Mesothelioma patients also need to complete a one-page document called the POLST, short for Physicians Orders for Life-Sustaining Treatment. You can request one from your doctor’s office.

The decisions documented on the POLST form include whether to:

• Attempt cardiopulmonary resuscitation,
• Administer antibiotics and IV fluids,
• Use a ventilator to help with breathing, and
• Provide artificial nutrition by tube.

Does the POLST form replace the Advance Care Directive?

The POLST form supplements advance care directive and is not intended to replace it. It is a medical order and can be used by paramedics and other first responders. It ensures that the preferences expressed in the advance care directive are actually carried out. You also need an Advance Directive to appoint a legal health care decision-maker.