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Posts by: Steven Kazan

Court Tells Asbestos Defendant ArvinMeritor that it Cannot Waste The Court’s or Plaintiff’s Time

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judge's decisionAutomobile and commercial truck components manufacturer ArvinMeritor seems to believe that it should not be held accountable for its actions. Fortunately, the justice system believes otherwise.  As I previously reported, an Alameda County jury found ArvinMeritor liable for punitive damages for its wrongful conduct in exposing workers to asbestos. As it upheld the punitive damages award, the appellate court noted that the evidence was clear —“ArvinMeritor’s conduct continued over many years, and evinced an indifference to or reckless disregard of the health and safety of [workers] and those similarly situated.”

More recently, ArvinMeritor intentionally ignored a court’s order and filed a frivolous motion, without legal or factual support, in an attempt to burden two plaintiffs as they sought justice through the legal system. A steadfast local judge, the Honorable Jo-Lynne Q. Lee, denied ArvinMeritor’s motion and fined ArvinMeritor’s counsel, national defense law firm Hawkins Parnell Thackston & Young LLP, for advancing a meritless position.

ArvinMeritor’s request would have increased the financial and time burden on the plaintiffs and their counsel. ArvinMeritor also represented to Judge Lee that its position was justified by the facts of the case and the law.  Neither was true, and Judge Lee quickly and appropriately responded.  She concluded that “ArvinMeritor’s position was not substantially justified” and ordered Hawkins Parnell to pay the plaintiffs monetary sanctions for their time opposing the motion.

Even though Hawkins Parnell knew it was clearly wrong, ArvinMeritor’s counsel disregarded the law and moved forward with the motion, wasting the Court’s and the plaintiff’s time.  The Court is applauded for reminding corporate defendants and their counsel that such actions will not go unpunished

Meet Ted Pelletier, Kazan Law’s Lead Appellate and Motions Attorney

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Ted W PelletierKazan Law is proud to introduce you to Ted Pelletier, the new head of our firm’s appellate and motions department. We are very pleased to bring Ted in-house to exclusively work for you, our clients, after 17 years of observing his excellent appeals work on behalf of injured consumers, especially asbestos victims.

Ted has handled dozens of appeals in the California Courts of Appeal and the California Supreme Court. One of his proudest accomplishments is successfully representing the first Californians to sue cigarette manufacturers, including two smokers who contracted asbestos disease from smoking 1950s Kent cigarettes that contained an asbestos filter. You can read his full bio here.

Right now, we’ll just informally talk to Ted about his work.

Why did you choose to go into law practice?

My mother was an assistant district attorney in Los Angeles. She brought home stories of people whose lives had been devastated by circumstances they had not brought on themselves. The fact that my mom helped them made me feel good about what she was doing. I saw the legal profession as a way to help people who might otherwise be helpless.

How did you become interested in working with asbestos and mesothelioma cases?

I worked in a big law firm for a year in between graduating from UC Santa Barbara and going to law school at Hastings. This firm fought against the rights of injured consumers, and I realized that I couldn’t do that. I wanted to be on the side of the consumer.

After law school, I was fortunate to work for an excellent appellate lawyer practicing on the plaintiffs’ side. The first cases I worked on involved asbestos appeals. I learned through that process about the disease and what it did to people. It felt great to help them.

Why did you decide to work for Kazan Law?

I knew from 17 years in this field that Kazan Law is the best. I always admired their high quality work. I had received overtures before from firms and it had never felt like a good fit — but this one did.

How does your work at Kazan Law help mesothelioma victims?

Money doesn’t replace a person, but it can help a family pay medical bills and compensate for the breadwinner being gone.

We also help give people a sense of justice. Yes, this was done to you but we are making it so that the people who did this are held accountable.

At Kazan, we are also helping to shape the law in this area of fighting for rights of victims, so that the laws provide justice for asbestos victims and applies to everyone, no matter who is representing them.

What do you like about your work?

I know I am fighting battles for people suddenly thrust into the worst battle of their lives.

Imagine that you or someone in your family worked for years installing insulation.  Now suddenly you can’t breathe.  What do you do?

At Kazan Law, we pool our talents and resources and provide these people with help that they otherwise could not get. We battle for them with people who aren’t willing to stand up and be accountable for what they did but are willing to throw money around to defend themselves even if they sometimes have to manipulate science, facts, or truth to do it.  It feels great to fight for these people to get them a sense of justice.

 

Leading Asbestos Scientist Denies Helping Georgia-Pacific Fight Asbestos Claims

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asbestos industry fraudBecause the link between malignant mesothelioma and asbestos exposure is so definitive, you would think that by now no scientist would try to prove otherwise. Especially with the loss of life, pain and suffering that malignant mesothelioma causes.

But alas, you’d be thinking incorrectly.

The bigger question to ponder here is can science – and more specifically scientists – be bought?  Can the lure of money influence their research results?  Would a scientist knowingly or unknowingly come up with conclusions that would enhance the bottom line of the business paying for the research?

According to detailed online reports in Hazards, a UK occupational health and safety magazine and the US scientific journal Nature, a leading toxicologist’s work on asbestos is suspected by US courts in California and New York of aiding fraud.

But the toxicologist, Ken Donaldson, an emeritus professor at the University of Edinburgh, UK, claims he contributed to academic studies on the effects of asbestos in good faith and was “naïve” not to disclose his separate paid consulting for the company involved, Georgia-Pacific, an Atlanta-based multinational and subsidiary of Koch Industries.

He also declares that he did not know at the time that the research was done under the direction of lawyers for Georgia-Pacific, who planned to use the results to fight asbestos claims.

New York’s Supreme Court Appellate Division in June ordered Georgia-Pacific to turn over the raw data and internal communications related to research that, judges said, were “intended to cast doubt on the capability of chrysotile [white] asbestos to cause cancer”.  The substance is a component in Georgia Pacific’s joint compound used in construction projects.

Donaldson, who was a co-author on some of the research, has been criticized by other environmental health researchers, both for failing to declare his interests on the papers, and later for claiming that he had no links or funding connections to asbestos manufacturers. Some are calling for Edinburgh University to sever ties with Donaldson, a previously well-regarded world expert on lung diseases caused by inhaled particles of various types.

Georgia-Pacific allegedly funded the research in an attempt to prove that many asbestos-exposed cancer sufferers could go uncompensated because they were exposed to the wrong kind of “shorter” chrysotile fibers, were not exposed at high enough levels or, if exposed at a high level, not exposed long enough. Global exports of chrysotile increased by 20 per cent in 2012.

Laurie Kazan Allen of the London-based International Ban Asbestos Secretariat (IBAS) – my sister – told Hazards: “The lack of transparency is what is appalling on this. Donaldson, like many of his co-authors, clearly had an undeclared relationship with Georgia-Pacific. Professor Donaldson says the conclusions of the papers are ‘indisputable’, conclusions the court determined could be part of a Georgia-Pacific bid to deny the asbestos cancer link.”

Berkshire Hathaway Subsidiary Settles Insurance Dispute With Ford

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Kiewit Tower, the location of Berkshire's corporate offices in Omaha, Nebraska

Kiewit Tower, the location of Berkshire’s corporate offices in Omaha, Nebraska

Kazan Law has just learned that in a surprise twist to asbestos litigation news we recently reported, a Berkshire Hathaway subsidiary has suddenly settled a major outstanding insurance claim. The unexpected settlement follows in the wake of a wave of negative publicity and lawsuits surrounding Berkshire Hathaway-owned companies’ alleged intentional delay in paying insurance claims including those to asbestos victims.

“Even (Warren) Buffet reacts to press coverage,” J. Robert Hunter, head of the Consumer Federation of America’s insurance division and former Texas insurance commissioner, was quoted as saying in a Scripps News update of its original coverage of the famous philanthropist’s apparent profiteering at the expense of victims waiting to be compensated for corporate wrongdoing.

Famous tycoon and philanthropist Warren Buffet heads the Omaha-based Berkshire Hathaway. As the chairman, CEO and largest shareholder of Berkshire Hathaway, he is consistently ranked among the world’s wealthiest people.

Although the only settlement publicly announced at this time is with Ford Motor Co. for unpaid claims over rollover deaths, it can be hoped that resolution for mesothelioma-stricken victims of asbestos exposure will follow.

Scripps previously obtained sworn testimony from a former Berkshire claims executive who criticized Berkshire subsidiary National Indemnity and its claim-handling arm Resolute Management Inc. for reportedly delaying and denying claims to asbestos-caused cancer sufferers and others.

National Indemnity, according to Scripps’ coverage, agreed to take on tens of billions of dollars in “so-called long-tail insurance risk” from major insurers including Lloyds of London and American Insurance Group (AIG).

“The long-tail policies cover asbestos and other health hazards that might take years or decades to develop into illness or a covered claim,” the report states.

Berkshire was entitled to invest the money until it had to pay out a claim but sought, according to allegations, to extend its ‘float” of the funds to boost its bottom line instead of paying on claims, including those of asbestos victims.

Ford announced that it received two million more than it had asked for in its settlement, walking away with $22.1 million.  Representatives for National Indemnity disputed Ford’s claim but would not reveal any settlement figures. The case had been set for trial later this month in the United States District Court for the Eastern District of Virginia.

Asbestos Industry Funds Allegedly Biased Scientist’s Research

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Mcgill_BuildingAsbestos regulation and legal cases often rely on testimony from expert witnesses who are supposed to provide factual impartial evidence.  Typically these expert witnesses are medical professionals and scientific researchers who can influence decisions because of their knowledge of asbestos and how it affects human health at various exposure levels.

But what if the experts who are supposed to be the ultimate authority on asbestos allow their opinions to be swayed by the business interests of whoever is funding their research?  What if the entity funding the research sees it as a business investment with an expected return instead of a philanthropic use of funds to advance scientific knowledge to help all humankind?

This is what a professor from Ivy League Brown University is alleging about a professor at Canada’s prestigious McGill University.

David S. Egilman, MD, MPH, a clinical professor of family medicine at Rhode Island’s Brown University suggests impropriety in his presentation at an asbestos industry conference held at McGill University last week.  Entitled “The Past is Prologue, Universities in Service to Corporations:  the McGill QAMA Asbestos Example.”

In his presentation, Dr. Egilman questions the accuracy of the conclusions of research on asbestos miners by McGill’s Prof. J.C. McDonald.  Prof. McDonald’s research was reportedly financed with one million dollars by the Quebec Asbestos Mining Association (QAMA).

“The available published data shows that the data reported does not support the conclusions,” Dr. Egilman says in the presentation.

The controversy was reported by Kathleen Ruff in an e-bulletin produced by the nonprofit Rideau Institute based in Ottawa.  Ruff, one of the Institute’s founders, is noted for her advocacy to end Canada’s export of asbestos.

“Prof. McDonald used his research to promote the use of chrysotile asbestos around the world. His research continues today to be used by the global asbestos industry to promote the sale and use of chrysotile asbestos. It was used, for example, by the global asbestos lobby at the May 2013 Rotterdam Convention conference to help defeat the listing of chrysotile asbestos as a hazardous substance,”  Ruff states.

Dr. Egilman and other scientists, according to Ruff, asked McGill to conduct an official investigation under the university’s research integrity regulations. McGill has refused and instead carried out an internal review which, according to Ruff, was “flawed by bias, lack of transparency and misinformation.”

Warren Buffet’s Berkshire Hathaway Companies Accused of Profiting By Denying, Delaying Asbestos Victims’ Payments

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Warren BuffettAsbestos victims were in the news this week when major media sources reported that there are dozens of lawsuits claiming that subsidiaries of the company Berkshire Hathaway are further victimizing them by intentionally withholding their payments.  Why?  To boost the company’s bottom line by denying and delaying claims owed to those dying from the asbestos-caused lung cancer.

Berkshire Hathaway Inc, headquartered in Omaha, Neb., is the company owned by Warren Buffet, considered the most successful investor of the 20th century.  As the chairman, CEO and largest shareholder of Berkshire Hathaway, he is consistently ranked among the world’s wealthiest people.

An investigation by Scripps News, a syndicated media service, stated in a report carried by many media outlets including The Wall Street Journal and ABC News,  that Berkshire Hathaway has become “one of the most powerful forces in asbestos and pollution litigation in the world.” And not in a good way.

Apparently, through 25 known deals, Berkshire’s Reinsurance Division took over the insurance risk for asbestos claims from major insurance firms. American Insurance Group (AIG), CNA Financial Group and Lloyd’s of London are among those who paid Berkshire to take on tens of billions of dollars in future asbestos and pollution claims that they had been holding.

Berkshire allegedly invested the money, known as “float” for a very profitable income.  And supposedly, the company did not want the bonanza to end even if it was at the expense of the sick and dying asbestos victims who are suffering because of asbestos exposure in their workplace.

Buffett is quoted as celebrating this strategy in his well-known annual letters to shareholders. In his 2009 message he wrote, “Our float has grown from $16 million in 1967, when we entered the business, to $62 billion at the end of 2009.” By 2012, that number had grown to $73 billion.

According to media reports, major companies with outstanding asbestos claims such as Ford Motor Co. and Estee Lauder Inc. sued alongside asbestos victims to get claims paid so they can be reimbursed for fines, legal fees and payments of injury claims.

Berkshire officials refused to reveal to Scripps how many bad-faith allegations against its subsidiaries have been lodged or settled.  Berkshire executive Ajit Jain said his division pays $1.4 billion annually for asbestos claims and expenses. And “as is the case with any insurance company, the vast majority of claims are settled without trials,” he said.

Why Kazan Law’s Foundation Supports Legal Services For Prisoners With Children

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Learn how former prisoners are denied jobs, housing, student loans, child custody and the right to vote

What if you had served time in prison but because of your record, you were unable to get a job or find a place to live? How could you possibly become a productive member of society when every door slammed in your face?  How would you make money to feed and clothe your children?

Or what if you were a victim of domestic abuse who was locked up in prison for trying to defend yourself and your children against harm?  And now because of your unjust imprisonment your children were without the one parent they could love and trust?

Decades of advocating for workers and their families who are coping with asbestos-caused malignant mesothelioma has had a profound effect on all of us here at Kazan Law.  It has made us all more keenly aware of institutionalized injustices of many kinds including those I mentioned above.

As attorneys who specialize in asbestos cases, we can’t jump into a different legal area to professionally help people facing these situations. What we can do is offer support through our firm’s foundation to an organization that is committed to improving the odds for incarcerated Americans and their families.

Kazan, McClain, Abrams, Fernandez, Lyons, Greenwood, Oberman, Satterley & Bosl Foundation is proud to be a supporter of Legal Services for Prisoners With Children (LSPC).  LSPC provides legal support, trainings, advocacy, public education, and community building to reunify families and communities impacted by the criminal justice system.

Here are some of LSPC’s key projects:

  • The Family Unity Project strives to help keep families connected when a family member is in prison
  • All of Us or None provides support for formerly incarcerated people and their families and seeks to end discrimination against people with conviction histories (see video above)
  • California Habeas Project seeks to free from prison survivors of domestic violence who are in prison for crimes related to their abuse.

To help LSPC fund these and other important projects and to celebrate this organization’s longevity, our foundation became a major sponsor for LSPC’s fundraising 35th anniversary celebration.  The gala event “Rooted Together, Rising as One” takes place on October 19th in San Francisco.  It promises to be a great evening for a great cause.

Italian Asbestos Victims Ask Yale to Revoke Convicted Eternit CEO’s Honorary Degree

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Casale MonferratoMention the Piedmont region of Italy and most people think of a glamorous vacation destination with picturesque villages and castles framed by the Alps.  But behind the tourist façade, it is an asbestos-infested valley of the shadow of death.

More than 2,000 people have died from mesothelioma just in Casale Monferrato, a town that has been around since the days of the ancient Roman Empire. By the dawn of the 20th century, it became known as a cement producing capital because of a factory built there in 1906 by Eternit, a company based in neighboring Switzerland.  Founded in 1903, Eternit produced asbestos-containing cement until 1997.

Headed by the Schmidheiny family since 1933, the company flourished during the post World War II rebuilding boom throughout Europe.  Besides Italy, Eternit also had factories in the Netherlands, France and Brazil. But amid a growing scandal about asbestos, Eternit’s four Italian factories closed in 1986 and the company was sold to an Austrian bank in 2003.

In 2009, following five years of investigation, billionaire former CEO Stephan Schmidheiny , 65, and major shareholder Louis de Cartier Marchienne were accused of criminal neglect . Both men were found guilty in February 2013 and sentenced to 16 years in prison.  You can learn more about this important asbestos trial in a free ebook  co-edited by my sister Laurie-Kazan Allen and her husband David Allen, asbestos victim advocates in their own right.

Marchienne died at age 91 on May 21, 2013 during the appeal of his sentence. Charges against him were dropped in June. But Schmidheiny’s sentence was increased to 18 years. He is appealing the case to Italy’s highest court.

Now, a group of mesothelioma sufferers and their families in Italy are seeking to have Yale University, an elite American college in New Haven, Connecticut, take back an honorary degree it presented to Schmidheiny in 1996.  A New Haven attorney representing the Italian group sent a petition to Yale officials this week.  Yale has never revoked an honorary degree and has expressed support for Schmidheiny .   Ironically, Schmidheiny’s Yale honors were conferred on him for his environmental activities, which cynically could be seen as an attempt to distance himself from the environmental and human disasters his company created.

Kazan Law Pro Bono Attorney Frances Schreiber Fights to Protect Workers

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Fighting for mesothelioma patients who were exposed to asbestos at work is what we do at Kazan Law. Seeing first-hand every day the senseless tragedy of honest hard-working people facing death because of neglect and carelessness by those who manufactured, designed, sold and installed asbestos- containing products inflames our sense of justice.  Our outrage inspires us to work not only to seek justice for our clients coping with asbestos-caused mesothelioma but also to strive to prevent other people from dying or ever becoming afflicted with work-related injuries or illnesses.

Frances Schreiberg is how we do that. Fran is a brilliant attorney who just happens to be passionate about workers’ rights, specifically their right to a safe and healthy workplace, and who also has an impressive track record in working with both the legislative and executive branches of California state government to protect workers from safety and health work place hazards of all kinds. Fran provides free advice to unions and other worker organizations that might not be able to afford an attorney of her experience and caliber.  We pay Fran so they don’t have to.  We let Fran work for them for free also known as pro bono.

In 1980, during Governor Jerry Brown’s first administration, the Governor asked the Director of the Department of Industrial Relations who then asked Fran to find out why the Division of Occupational Safety and Health better known as Cal/OSHA was not bringing criminal cases against companies killing workers as a result of exposure to toxic materials. Fran accepted the challenge.

“Once I became involved,” Fran recalls, “I found it very compelling.”

While working at Cal/OSHA Fran looked into every fatality that occurred in California. Fran recalls, “I reviewed those reports.  Always someone on that jobsite knew that so-called “accident” was going to happen. But either they spoke up and were told to shut up or they didn’t say anything because they didn’t want to lose their job.”

I first met Fran in 1985 when she asked me to provide supporting exhibits for a legislative proposal being authored by then Assembly Member – later to become Governor – Gray Davis to protect workers from asbestos.

In 1987 when powerful industry interests succeeded in having Governor George Deukmejian eliminate Cal/OSHA, I was honored to be a part of a group that banded together to fight back.  We called ourselves WORKSAFE!  and supported an initiative to restore the Cal/OSHA program, Prop 97. It was a tough fight but we succeeded. Cal/OSHA was restored.  WORKSAFE continues to advocate for worker safety and health and to this day our law firm supports their work with annual grants and significant in-kind contributions of office space.  Fran continues to work closely with the organization she helped found.

When Fran left the State Building Trades in 1991, I realized Fran needed to focus full-time on work designed to prevent folks from dying.  I invited her to work for Kazan Law.

“This firm tries to do everything possible to prevent people from ever having to come to see us in the first place,” Fran comments. “So I do trainings for legal services programs, worker centers, unions, and even for businesses.  I give workers and their representatives the tools they need to speak up for a safe place to work and to fight retaliation.”

Fran also spends a lot of time in Sacramento on policy work.  This year she’s worked on three bills to protect workers.  One is SB 193. It would permit the California Department of Public Health to require manufacturers and others to provide information about toxic materials being shipped into California workplaces so that the Hazard Evaluation System & Information Service (HESIS), when there is new scientific or medical information, can assist both employers and employees in protecting against the risks from those chemicals.

“We are hopeful we can get it out of the Assembly Appropriations Committee early next year.  We need to overcome the pressure being exerted by various companies – members of the American Chemistry Council – who see it as interfering with their business – their right to make money,” Fran says.

Every year over 66,000 American workers are injured or die from preventable workplace hazards or exposure to toxic chemicals.

“And Cal/OSHA cannot do it all, nor can they do it alone,” Fran acknowledges. “Cal/OSHA only has 146 inspectors for 18 million workers. Who are we kidding?  It’s a constant struggle.  So laws that facilitate prevention, such as SB 193, are critical.”

“I’m very proud of the bill by which that and numerous other changes were achieved. That’s why I keep doing this,” Fran says.

And that’s why Kazan Law keeps Fran doing this important work.  Thank you, Frances Schreiberg.

Mesothelioma Awareness Day Events Generate Nationwide Attention

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Meso_Awareness_DayMesothelioma patients and their families confront the malignant asbestos-caused cancer every day but yesterday all across the US many people got their first introduction to the often fatal illness, including those in a position to do something about it.  These included everyone from Congressional representatives in Washington DC to college students in Florida and Arizona who participated in fundraising runs to support mesothelioma patients.

Started by the Mesothelioma Applied Research Foundation (MARF) in 2004, Meso Awareness Day event organizers have steadily scaled up their efforts to familiarize the general public about this deadly type of cancer caused by asbestos exposure primarily in the workplace or asbestos-containing products in the home.  About 3,000 Americans are diagnosed with mesothelioma each year.

MARF is the only national non-profit organization entirely dedicated to ending mesothelioma by funding research, providing education and support for patients and their families, and by advocating for federal funding of mesothelioma research.

With dozens of events occurring around the nation and more scheduled for this weekend, here are a few highlights of Meso Awareness Day 2013 thus far:

  • MARF members held a Congressional Briefing at 10 a.m. yesterday in the Rayburn Office Building. Their presentation was called “Mesothelioma: Unknown, Underfunded and Incurable.”
  • A large group of MARF supporters gathered at New York City’s Rockefeller Center for the taping of the Today Show were visible in their bright yellow shirts. Today Show Al Roker briefly spoke with the group .
  • The Baltimore Orioles, during their game against the Toronto Blue Jays, recognized Meso Awareness Day by featuring information about the Meso Foundation on the jumbotron screen.

Kazan Law is proud to be listed on the Annual Donors page on MARF’s website.  We are pleased to know that through donations from the Kazan, McClain, Abrams, Fernandez, Lyons, Greenwood, Oberman, Satterly & Bosl Foundation, Inc., we are part of who MARF is talking about when they state:

“Because of your support, the Foundation funds the highest-quality, peer-reviewed research, provides education and support to patients and their loved ones and leads advocacy efforts to increase federal funding for research and increase awareness of mesothelioma.”

We believe that thanks to MARF’s efforts like Meso Awareness Day, mesothelioma will not be unknown, underfunded and maybe not even incurable in the future.

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