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Posts by: Steven Kazan

In Support of the California Rural Legal Assistance Foundation

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California Rural Legal AssistanceBecause of seeing the tragedy of mesothelioma strike so many dedicated hardworking people who were just at their jobs doing what they were supposed to do and giving it their best,  I realized that more needs to be done to protect people in the workplace.  Especially to protect people who have few resources and do not have the means to protect themselves. Helping people who are unable to help themselves is a core value of our firm, a driving force behind the work we do, and one of the most compelling reasons that helps all of us maintain our focus. One of the mechanisms that allows us to continue to fight against the scourge of asbestos production and usage throughout the world, is the work we are able to perform through our charitable foundation.

That is why at Kazan Law, the stated goals of our charitable foundation include trying to:

  • Increase and improve public awareness about work-place health and safety
  • Enhance access to, participation in and education about the legal system and governmental processes

To fulfill these goals we identify and support nonprofit organizations that are effective at providing help in these areas where and to whom it’s most needed.

One organization we are proud to support is California Rural Legal Assistance Foundation (CRALF).   For over 30 years, CRLAF has worked with California’s farm workers, migrant workers and the rural poor to protect their rights and health. CRALF gives a voice to Californians in low-income and marginalized communities and provides them with essential legal services.

Just last Sunday, the San Francisco Chronicle newspaper had a front page article highlighting the effects of pesticides on generations of field workers in the Salinas Valley.  Although pesticides are different from asbestos, the  overriding similarities – workers exposed without their knowledge or consent to potentially life-threatening lethal toxins – that make this is a cause that I wholeheartedly support. .

I am proud of CRLAF’s Pesticide and Work Safety Project and its efforts to encourage stricter enforcement of existing pesticide laws and regulations, better regulations and increased use of safer pest control alternatives.  They recently created a pesticide exposure prevention and response video for farm workers and have helped author reports such as Fields of Poison and Second Hand Pesticide: Airborne Pesticide Drift in California.

To help support CRLAF, Kazan Law is helping to sponsor a fundraising event on Friday night, October 4 at the California Museum in Sacramento.  The event Luchando por Justica (Fighting for Justice) will honor Sacramento County Superior Court Judge Emily Vasquez, California Labor Commissioner Julie Su, and farm worker and women’s rights advocate Guadalupe Negrete Rendon.   Justice Cruz Reynoso, the first Hispanic to serve on the California Supreme Court and a recipient of the Presidential Medal of Freedom in 2000, will be the keynote speaker.  If you can, I hope you will consider joining us there.

EPA Developing New Ways to Measure Asbestos Exposure Risk

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asbestos exposureCould taking your dog for a daily walk increase your risk of developing mesothelioma?  Yes, if that daily walk takes you through an old asbestos-contaminated area and stepping on the soil releases long dormant asbestos fibers into the air that you unknowingly breathe.

That is why the US Environmental Protection Agency (EPA) is developing new ways to more accurately measure asbestos risk.  These include focusing on the types of activity occurring at a specific site and how they may increase asbestos exposure.

“Unlike a number of other contaminants, the main risk of asbestos is not so much direct contact but inhalation of the fibers that can enter the air if material contaminated with asbestos is disturbed,” said Julie Wroble, a toxicologist with the EPA’s Washington regional office in Seattle.

Across the U.S. there are sites embedded with naturally occurring asbestos or commercially-made products containing asbestos that may put people at risk for asbestos exposure, according to Wroble. “At the EPA we have been developing techniques to better estimate this exposure and the resulting health risks” she said.

Wroble made her remarks at CleanUp 2013, the world’s leading scientific contamination conference, which is being held in Melbourne, Australia this month.   She presented the latest techniques used by the federal EPA to estimate exposure risk to asbestos.

Every two years, scientists, engineers, regulators and other environmental professionals from many countries gather in Australia for this major conference addressing contaminated site remediation.
This year’s program featured 200 speakers and over 50 poster presentations.

“It’s not enough to just sample the contaminated material. There are a number of other factors that need to be considered when assessing how likely the fibers are to get into the air,” said Wroble.

“For example, we need to know what type of fibers we are dealing with and even what the weather is typically like in the local area. Most importantly we need to know what kind of activities take place at that site and whether these could release asbestos.”

Wroble and her EPA colleagues developed a system called “Activity Sampling” that measures the amount of asbestos fibers likely to be inhaled as a result of possible activities.  They are trying to standardize techniques used to measure asbestos exposure risk across the US.  This will allow for comparisons between sites in different parts of the country and help EPA determine which sites to clean up first.

Asbestos Attorney Carole Bosch Joins Kazan Law

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Carole Bosch

Carole Bosch

I am pleased to announce that Carole Bosch has joined our firm as an associate asbestos attorney.

Carole has successfully represented plaintiffs in personal injury, civil rights, prescription drug, and toxic exposure cases.  Since 2007, she has been litigating cases on behalf of numerous plaintiffs affected by asbestos exposure, including construction workers, drywallers, plumbers, pipefitters, insulators, pump mechanics, plant maintenance persons, matchplate makers, as well as their wives and children who were exposed to asbestos unwittingly brought home.

You can read her complete bio here.  For now, I’d like to share what Carole had to say when I asked her about her work.

How does your work as an asbestos attorney at Kazan Law help mesothelioma victims?

A lot of people have been and continue to be exposed to dangerous toxins in the work environment.  What we do serves a dual purpose.  It  serves to compensate victims and their families who develop illness through no fault of their own as a result of their exposure to asbestos without any knowledge or protection.  Often their families are also victims through secondary take home exposure.

Our work at Kazan Law also serves to deter companies from doing today what companies in the 50s and 60s did. Asbestos is more regulated today but still many workers are exposed to other lethal toxins in the workplace.

How do you approach working with mesothelioma victims and their families?

I bring both a personal touch and an expertise.  I develop a close bond with my clients and I am very familiar with the products they used and the work they did.  These are wonderful people who took a lot of pride in their work. We give them an opportunity to talk to someone who understands what they did.

It is important for these people who are suffering to know that their attorneys care.  We really do care about them, we care about their families. And we care about their families’ future.

What do you like most about your work as an attorney in asbestos and mesothelioma litigation?

Helping people.  It sounds cliché but that is what we do here at Kazan Law. We help people. We make a difference in their lives and we make a difference in the workplace.

Now that you are part of the team of asbestos attorneys at Kazan Law what do you hope to do?

I really want to contribute to what it is that Kazan Law does best.  Kazan Law has a reputation for doing high quality work for their clients.  That is something I share and want to continue.  It is what sets us apart from the many firms that do volume work as opposed to quality work.

Demystifying the Asbestos Litigation Deposition

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taking oathAn important part of our asbestos litigation practice at Kazan, McClain, Satterley & Greenwood, is preparing for trial. On both sides of a case, preparation involves taking depositions. This often keeps our attorneys on the road traveling to wherever the deposition will be held. But we wouldn’t miss one for the world. They are just too important. Why?

You can be sure we know the law and legal precedents that apply to each case. But what we don’t always know and aim to find out is what information key witnesses in each case possess. Why? Because what they know will inevitably come to light during the trial and we don’t want any surprises. Nor does the other side.

To put it simply, a deposition is a formal interview under oath normally conducted out-of-court by an attorney. It yields oral testimony given by a witness without a judge present. The purpose is for the attorney to discover key information that may be relevant to the case. The witness can also be examined by the opposing counsel – the attorney the other side hired – who invariably is also present.

After the questioning is finished, the deposition is transcribed to written form and studied carefully by lawyers during the time leading up to the trial as each looks for information to support their arguments. That’s why a hired court reporter or stenographer is also part of the deposition process. Often the deposition is recorded on video, which can be edited so that relevant portions can be shown at trial.

Abraham Lincoln, who practiced law for 25 years in Illinois[1] before entering politics, once said that harm comes not from use of a bad thing but from misuse of a good thing.[2] So it came to be with the vital legal procedure of taking depositions.

We care about the results, and spend the time necessary to get to the important facts. Lawyers defending asbestos cases get paid by the hour, not for results, and there are usually lots of them at every deposition – so they like to drag things out as long as possible – for them, time is money!

On September 17, 2012 – almost exactly a year ago – California Governor Jerry Brown signed into law a bill that Kazan Law was instrumental in advocating. AB 1875 limited how long a deposition could take. Deposition abuse – extending depositions of victims for days on end – had become a problem not only for those suffering from asbestos-related diseases but for other ailing people as well. AB 1875 limited depositions of ill and dying victim to two days of seven hours each, for a total of 14 hours. Exceptions can be made if a judge decides that more time is absolutely necessary.

 

[1] Lincoln’s Advice to Lawyers, Abraham Lincoln Online, www.abrI ahamlincolnonline.org

[2] Temperance Address 1842, ibid

Kazan Law Serving the Mississippi Center for Justice

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Gordon Greenwood

Kazan Law partner Gordon Greenwood

In addition to serving our clients and supporting mesothelioma research, the partners at our law firm work through the Kazan, McClain, Abrams, Fernandez, Lyons, Greenwood, Oberman, Satterley & Bosl Foundation to help disadvantaged communities around the country tackle various issues.

To maximize our impact, we try to support other organizations that help disadvantaged citizens maneuver through obstacles that they may encounter because of their socioeconomic status. Several of us also volunteer as leaders for these groups.

Partner Gordon Greenwood

One of our partners, Gordon Greenwood, is serving on the board of the Mississippi Center for Justice, or MCJ. The lawyers and professionals at the MCJ strive to bolster the legal and socioeconomic statuses of communities of color in a state that has traditionally been a hotbed of racial tension. The organization has dealt with matters that are far-reaching in both geography and history. Ongoing campaigns include helping HIV-positive patients navigate the healthcare system, fighting predatory lending practices and keeping public housing affordable.

One of the more high-profile undertakings of the MCJ is its work to help citizens who were hurt by the BP Oil Disaster. Despite the fact that the oil company was found legally liable for the calamity – which killed several people and devastated those who worked in the fishing and service industries – leaders at BP have been trying to brush off all responsibility and stall compensatory payments to residents of the area. Meanwhile, the company is trying to sweep these developments under the rug with a reprehensible public relations campaign touting its supposed efforts improve the region.

MCJ responded to the injustice by forming the Gulf Justice Consortium. The project is helping those that BP hurt by providing pro bono services, arguing for changes to the claims system, giving a voice for all people whose jobs were affected by the disaster, ensuring fair calculations for claims and ensuring the presence of language aides to assist the sizable Vietnamese population.

Our firm’s foundation is proud to have Gordon sitting on the MCJ’s board of directors, where he’s in a position to help millions of Mississippians.

 

Kazan Partner David McClain Serves as Key Witness in Major Asbestos Bankruptcy Trial

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David McClainBecause of Kazan, McClain, Satterley & Greenwood’s acknowledged expertise in asbestos claims, one of our principal partners David McClain recently was asked to serve as a key fact witness in a major asbestos bankruptcy case underway in Charlotte, NC.[1]  The outcome of this trial will determine how much Garlock Sealing Technologies and its parent company Enpro will have to pay into a trust fund for victims exposed to its asbestos-containing products.

According to David, “It was acknowledged by the counsel representing both present and future asbestos victims that we are among the foremost experts in this type of litigation and would be in the best position to tell the judge about Garlock’s liability.”

Garlock wants to set aside about $270 million for the trust. The claimants are asking for over a billion dollars from Garlock and its parent company Enpro.

As part of its legal strategy, Garlock filed for asbestos reorganization in federal bankruptcy court. The gasket manufacturing company’s case went to trial in early August to determine its total liability.  Although the evidence is now closed[2] a decision is not likely soon as the judge has much to consider

Garlock went to federal bankruptcy court to avoid more expensive lengthy trials for individual claims, which often resulted in big settlements. Now, to reduce the amount of the trust for claimants as part of a bankruptcy settlement, Garlock is attempting to prove that the victims’ cases are dishonest, because they may have been exposed to asbestos from sources other than their products, even though this argument has never worked for it in court when they actually tried cases.

“They (Garlock) have the money to pay up.  They just want to keep it for themselves. So they were trying to claim that the plaintiffs were being dishonest.  I countered that, and showed that it’s not true,” David commented when we discussed the case.

David pointed out to the judge how under California law, plaintiffs only need to show that the company’s gaskets increased the risk of developing mesothelioma, the fatal cancer caused by asbestos exposure. This ruling provided incentive for Garlock to avoid individual trials by paying its fair share in settlements of those cases.

When the judge hands down a decision on this asbestos bankruptcy case, I will report to you about it right here on the Kazan Law Blog.

[1]    Evolving litigation landscape led to settlements, witness testifies at Garlock trial; Legal Newsline; Aug 7, 2013

[2]  Garlock bankruptcy trial concludes in N.C.; Legal Newsline; Aug 23, 2013

Obscure and Everyday Asbestos Products from the 20th Century

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asbestos exposureBecause of the dangers surrounding asbestos exposure, concerned consumers have become wary of construction materials, particularly those that were used to build structures before the 1980s. However, a columnist for the website Greener Ideal pointed out that asbestos was used for more than just construction and cars. During the 20th century, people handled several asbestos products on a daily basis, which may be notable for senior citizens who are only now developing the symptoms of asbestos-induced diseases.

Material pervaded everything from decorations to hygiene products
The idea of being in a building with aging asbestos insulation can be frightening for educated consumers. Imagine the horror you’d feel if you realized you were touching asbestos regularly, or worse, putting it directly in your mouth.

Greener Ideal columnist Paula Whately wrote about several more obscure uses of asbestos from the 20th century:

  • Decorative snow. Between the 1930s and 1950s, asbestos was used for fake snow in Christmas decorations, and even used for set dressing on “The Wizard of Oz.” Part of what made it so appealing was the fact that it was fire-resistant.
  • Toothpaste. After World War II, some toothpaste manufacturers included the mineral in their product to act as the abrasive agent.
  • Beauty salon hair dryers. The hood-style hair dryers used during the 1950s included a layer of asbestos that was meant to protect customers from being accidentally burned.
  • Surgical thread. After World War II, asbestos was added to some types of surgical thread in order to make it both stronger and more flexible.

What you can do
It’s also important to remember that the U.S. government still allows asbestos to be used in the manufacturing of several products, including cement sheets, vinyl floor tiles, gaskets, automatic transmission components and automotive brake system parts. Consumers who are concerned about this need to keep putting pressure on their lawmakers to curb the use of asbestos.

Building Demolition and Asbestos Exposure

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asbestos exposureIf you have an interest in demolition – either as a worker or spectator – you need to keep in mind that demolishing older structures may put you at risk of asbestos exposure. This is why there are strict federal laws dictating how asbestos must be handled both before and during demolition projects.

Where in an old building can you find asbestos?
During much of the 20th century, asbestos was a popular component of construction materials because of its strength, ability to resist fire and capacity to insulate against heat and sound. However, during the 1970s, responsible companies began eliminating asbestos from their manufacturing processes because of the link between exposure to the mineral and the development of fatal diseases, such as malignant mesothelioma.

In fact, the Environmental Working Group estimates that every year, asbestos-related diseases claim the lives of more than 9,900 individuals in the U.S. This underscores the importance of protecting both consumers and industrial workers from asbestos exposure.

As listed by the federal Environmental Protection Agency, items in and around buildings that may contain asbestos include, but are not limited to:

  • Cement corrugated sheets
  • Cement flat sheets
  • Cement shingles
  • Cement pipe
  • Pipeline wrap
  • Roofing felt
  • Roof coatings
  • Non-roof coatings
  • Vinyl floor felt

How should asbestos be dealt with before demolition?
When a building is torn down, there is a lot of potential for dangerous substances to be released into the environment, putting the health of both workers and local residents at risk. That’s why the federal government has strict laws dictating the handling of asbestos before a demolition project commences.

First, the National Emission Standards for Hazardous Air Pollutants, or NESHAP, requires that any building manager or operator notify the appropriate state agencies before demolition takes place. Next, demolition workers have to be careful about controlling the emissions of potentially deadly substances.

When it comes to asbestos, that means minding both friable – that is, it can crumble when handled – and non-friable asbestos products that may become damaged during the demolition must be removed prior to the actual demolition.

If the removal process is likely to disturb any of these materials, those in charge of the project have to make sure they’re kept adequately wet in order to control the dust problem.

Similarly, anything that cannot be physically removed from the site before demolition must be kept wet until its actual disposal after demolition. The goal here is to make sure that there is no visible dust.

There are only two exceptions to the rule regarding keeping these materials wet prior to demolition:

  1. If the temperature at the time of wetting is below zero. Building owners and operators must make a note of these temperatures and keep the records for at least two years.
  2. When the use of water will damage equipment or present a safety hazard. This requires written approval from safety inspection administrators.

Building owners and operators have to keep in mind that inspectors will also be on hand to make sure that the wetting procedures are being carried out properly. They can evaluate things such as the location of the water supply, whether an alternative wetting agent is needed, what equipment is being used to wet the materials and how properly bags of waste are handled.

If those in charge of a demolition project know that air concentrations of asbestos fibers may exceed permissible exposure limits, they must provide workers with protective clothing and respirators.

History of Asbestos Litigation

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asbestos litigationOne of the things that I believe sets Kazan, McClain, Satterley, Lyons, Greenwood & Oberman apart is the fact that we have been pioneers in asbestos litigation. The modern history of asbestos litigation began on December 10, 1966, when the first asbestos product lawsuit since the 1920s was filed in Beaumont, Texas by attorney Ward Stephenson. His client, Claude Tomplait, had been diagnosed with asbestosis in July of that year. The defendants were eleven manufacturers of asbestos-containing insulation products, including Johns-Manville, Fibreboard and Owens Corning Fiberglas. The case proceeded to trial on May 12, 1969 and a week later the verdict was returned in favor of defendants.

In October 1969, Mr. Stephenson filed a case for one of Mr. Tomplait’s co-workers, Clarence Borel. Again, numerous asbestos manufacturers were named. However, this time the result was different. The jury returned a verdict for Mr. Borel in the amount of $79,436.24. The verdict was appealed and on September 7, 1973, Ward Stephenson died. Four days later, the Fifth Circuit Court upheld the award.

The legal battle on behalf of asbestos victims expanded to other parts of the United States. Cases were filed in many other jurisdictions starting in late 1973.

In 1974, I filed a precedent-setting civil lawsuit on behalf of Reba Rudkin, who developed asbestosis after working for 29 years at the Johns-Manville manufacturing plant in Pittsburg, California. Even though Mr. Rudkin worked for Johns-Manville and the company would normally be protected from such a lawsuit because workers’ compensation is the exclusive remedy for an employee suing an employer, I argued that Manville and its executives should not be shielded from fraud and conspiracy charges.

In January 1978, at a deposition taken during the course of discovery in this case, Wilbur Ruff, the Pittsburg plant manager in the 1960s, was asked if there had been “a policy in the company…not to talk to the employee about chest findings, findings that suggested asbestosis, pneumoconiosis or mesothelioma.” Ruff testified, “Yes, it was policy.” [Brodeur p.167-168] It was known as the “hush hush policy.” The evidence of fraud and conspiracy started to emerge.

During this period, numerous incriminating Johns-Manville documents were discovered that proved fraud and conspiracy. These included the personal records of Sumner Simpson, president of Raybestos Manhattan, who corresponded frequently with Vandiver Brown, General Counsel of Johns-Manville. The letters disclosed that these companies conspired to suppress knowledge about the hazards of asbestos as early as the 1930s.

Fast forward and now, more than 40 years later, asbestos litigation is still a battleground that remains fraught with continued evidence of corporate and insurance company fraud and conspiracy.

 

Drywall Work and the Risk of Asbestos Exposure

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asbestos_exposureWhen looking around the house, it can be easy to take certain things for granted so much that you forget they’re even there. You can lose sight of the exterior paint job as you go about busy work days. Carpets that used to be springy under your feet disappear as you navigate through various rooms. These rooms are divided and separated by the drywall.

But even though it’s easy to forget the drywall is even there, you must be conscious of whether it starts to become old, worn or damaged. The reason for this is that certain products used to assemble the drywall can put nearby people at risk for asbestos exposure if their condition is deteriorating, and we’re not just talking about the people who occupy the homes. If you’re an employee who worked with drywall during the 1980s, or you have to handle drywall that was manufactured before this time period, you may become vulnerable if asbestos mineral fibers break off into the nearby air.

Physical handling of old drywall-related products can create deadly dust
Drywall itself very rarely contained asbestos fiber, and this was confined to a few specific products with special applications. Often talc was used in the shipping of finished drywall so stacked sheets would slide off each other with ease. Sometimes that talc was contaminated with tremolite asbestos.

However, the big exposure related to drywall was in the taping compounds, which were referred to as mud or joint compound, that were used to cover and smooth the taping that covered the seams between sheets and any nail or screw holes in the sheets themselves. This was sanded to get a smooth, paintable finish and created dust which was a big hazard to the tapers and those nearby, as well as in later remodels and demolition.

Typically, products that contain asbestos don’t pose a health threat to anyone as long as they remain intact and in good condition. However, during construction, renovation or demolition, it’s easy for asbestos-tainted items, such as drywall-related products, to release mineral fibers into the air.

Several studies that appeared in the American Industrial Hygiene Association Journal showed how dangerous asbestos can be. One paper from 1980 demonstrated that drywall taping produced the most dust during the mixing, sweeping and the sanding phases. This is worrisome considering that there were about 75,000 construction workers in the U.S. working in the drywall trade by 1979.

Another paper published in 1979 revealed that air concentration measurements of asbestos fibers within the breathing zones around drywall tapers exceeded government regulations.

If you worked in the drywall trade prior the the 1980s, and you have an asbestos-related illness, you should consider consulting an asbestos attorney.

Protect yourself whenever possible
If you’re not sure whether a section of drywall has asbestos in it, it’s better to assume that it does. From there, you can get in touch with professional contractors that are specially trained and certified to handle products tainted with asbestos, who can collect material samples for laboratory analysis to measure asbestos concentration. Remember that you shouldn’t collect these material samples yourself if you aren’t properly trained.

If asbestos is in the drywall-related products, the abatement and removal processes should also be handled only by professionals.

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