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What Relaxed Asbestos Rules Might Mean

Asbestos is the name given to a collection of naturally occurring minerals that have properties useful in a wide range of commercial and industrial applications. Among other things, asbestos is an effective fire retardant. The risks to human health posed by asbestos have been understood as far back as the early 1900s, and today we know that it can cause long-term problems, including cancer. In the 1970s authorities in the United States began a concerted effort to ban its use in certain products, especially drywall. In 1989 the Environmental Protection Agency (EPA) banned all new uses of asbestos, while allowing existing uses to continue, and adopted regulations governing the inspection of buildings for potential asbestos hazards. In June 2018 the EPA announced a proposed a Significant New Use Rule (SNUR) addressing asbestos use. The SNUR was proposed due to a regulatory gap in existing law, which leaves a range of potential asbestos uses unregulated. The SNUR makes clear that the uses it is aiming at were in use as late as 1991, but are no longer in use today. The explanation is that manufacturers have voluntarily avoided these unregulated uses in large part to avoid potential liability for incorporating a carcinogen into their products. The SNUR aimed to bring these out-of-use but unregulated applications for asbestos into a framework to give the EPA mechanisms to evaluate and regulate them. Among other things, the SNUR proposes to ban the use of asbestos in clothing and a range of construction products. Critics of the SNUR have raised two chief concerns. The first is that the SNUR does not address all potential new, unregulated uses of asbestos, leaving in place significant regulatory gaps. The second concern is that the SNUR’s proposed examination procedure would stop the EPA from considering historical data when evaluating proposed new uses. This means that the deep scientific background in the risks posed by asbestos will not be included in future product evaluations. The new rule also narrows the definition of “asbestos” to potentially leave dangerous compounds beyond the reach of regulators. How the proposed rules may affect public health remains to be seen. The fact that the SNUR addresses currently unregulated uses should give some comfort that manufacturers are already deterred from those uses by other legal standards, including state products liability laws. The risk of liability for widespread cancers and other diseases related to asbestos exposure serves as a powerful deterrent even without EPA action. Still, if new uses for asbestos are approved under the process proposed in the SNUR they could lead to a higher incidence of asbestos in our environment. It seems that ordinary people, especially those who work around old construction, will need to continue to be mindful of the potential risks of asbestos exposure. Greenman Goldberg Raby Martinez is a Las Vegas personal injury law firm with over four decades of experience in products liability litigation. We can help clients who have been injured by exposure to asbestos seek recovery from responsible parties. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request on our contact page.

The State of Mesothelioma Litigation in 2018

The State of Mesothelioma Litigation in 2018
Mesothelioma is a form of cancer linked to exposure to asbestos. Asbestos is a naturally occurring mineral that has characteristics useful for a wide range of things, including the construction of fire-resistant materials. But it also is highly toxic to human health, with mesothelioma being one of the potential side effects of exposure. As a result, asbestos is no longer used in most construction materials in the United States. But it continues to show up in other products, and people continue to be exposed to older materials that contain it. Therefore, although the danger of asbestos is well understood, litigation related to mesothelioma continues to crop up. Since the U.S. Supreme Court’s decision in Amchem Prods. v. Windsor, 521 U.S. 591 (1997), mesothelioma litigation has been handled on an individual basis, rather than following the class action approach that had dominated earlier asbestos-related litigation. For individuals suffering from mesothelioma, the loss of the class action option has reopened the possibility of controlling one’s own case, tailored to the specific circumstances, and with due consideration of all the plaintiff’s needs. A successful individual case can also result in a higher damages award than what might have been available in the class action context.

Baby powder and mesothelioma

In recent years household products maker Johnson & Johnson has faced litigation by mesothelioma sufferers who claim that Johnson & Johnson’s talc powder (or baby powder) products contain traces of asbestos. In November 2017 a California court found J&J not liable for the plaintiff’s cancer, but other cases have gone the other way, with total damages in excess of $700 million over the last two years. The California case offers interesting insight into the ways a defendant can undermine a plaintiff’s mesothelioma case. The question of causation often rests at the heart of cases involving cancer. To prevail, the plaintiff must show that the defendant’s wrongful action—in these cases, something that exposed the plaintiff to the carcinogenic toxin—was the cause of the plaintiff’s disease. Meanwhile, the defense will spare no expense looking for alternative causes of the disease in order to cast doubt on the plaintiff’s case. In the California case, J&J focused on radiation treatments the plaintiff had previously received, as well as the likelihood that the plaintiff was exposed to asbestos on her father’s work clothing. Plaintiffs in mesothelioma cases can expect the defense to take a literal microscope to their lives in hopes of finding potential alternative causes for the plaintiff’s cancer. One of the many reasons to seek out personalized legal representation, instead of working with an impersonal “litigation shop” firm, is to ensure that intrusions into the plaintiff’s personal affairs are minimized and handled in a thoughtful way.

Firefighters and mesothelioma

Another topic GGRM continues to monitor is the high rate of cancer among our firefighters. Firefighters face a high risk of uncontrolled exposure to asbestos in burning buildings. During the course of a fire a wall or ceiling might need to be demolished by hand, unleashing asbestos fibers into the air. Nevada law provides specific rules for when a firefighter’s cancer is covered under the state’s worker’s compensation system. NRS 617.453. Firefighters should know that the statute provides a specific list of chemicals and related cancers that will be covered, but asbestos exposure is not one of them. Although the list provided in the law is not exclusive, the burden will fall upon a firefighter to show that his or her mesothelioma is related to on-the-job exposure to asbestos.

GGRM can answer your mesothelioma questions

The attorneys at the law firm of Greenman Goldberg Raby Martinez are proud of the close relationships we have with our clients. When a cancer like mesothelioma threatens to take away so much, it’s important to have caring counsel in your corner. If you are trying to make sense of your legal options we would be happy to answer your questions about mesothelioma litigation. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.