Asbestos-Related Lung Cancer: How big business lawyers are hurting cancer patients efforts to secure justice. By J. Conard Metcalf

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1 Asbestos-Related Lung Cancer: How big business lawyers are hurting cancer patients efforts to secure justice By J. Conard Metcalf

2 TABLE OF CONTENTS Executive Summary 1 Introduction 2 The Problem: Creative Big-Business Lawyers Ignoring the Science 2 The Solution: Putting Sound Science in the Hands of Juries 4 Conclusion 5 EXECUTIVE SUMMARY The scientific consensus is beyond legitimate dispute: exposure to asbestos causes lung cancer. But creative defense lawyers seeking to get corporate defendants off the hook for cancer patients claims are trying to direct the conversation away from the well-established science. Lawyers for asbestos companies have deployed three arguments: (1) if the patient smoked, asbestos exposure cannot be considered the cause of the patient s cancer because he or she would have developed lung cancer from smoking even in the absence of asbestos exposure; (2) that short-term or low-level asbestos exposure doesn t pose a significant risk of cancer; and (3) unless the patient has asbestosis (scarring of lung tissue) or pleural plaques (scarring of the lining outside the lung) a patient s lung cancer cannot be attributed to asbestos exposure. While these arguments may have some surface appeal, they are not borne out in the scientific literature. It is the job of attorneys advocating for the rights of clients who are suffering from cancer related to asbestos exposure to ensure that judges are not misled by these bogus claims. Ultimately, the accepted and wellestablished scientific principles supporting a causal relationship between asbestos exposure and lung cancer should not be the courts concern. Rather, judges should be serving as the gatekeepers, ensuring that juries are deciding cases based on meaningful consideration of sound science and well-founded expert testimony. page 2 simmons hanly conroy A NATIONAL LAW FIRM simmonsfirm.com

3 INTRODUCTION The scientific evidence linking asbestos exposure to an increased risk for developing lung cancer has been well established for decades. Dr. J. Corbett McDonald, a researcher frequently cited by both plaintiff and defense attorneys, concluded in a 1980 article in the peer-reviewed medical journal Chest that, It has been demonstrated beyond a reasonable doubt that asbestos, of the types used commercially, is a cause of human lung cancer. 1 Dr. McDonald is not alone. Many other non-partisan scientists and researchers have reached the same conclusion. For example, researchers have found: Of all the diseases caused by asbestos, lung cancer constitutes the greatest health risk for American asbestos workers. 2 Evidence establishing a dose-responsive relationship between asbestos exposure and an excess risk of lung cancer or mesothelioma is exceptionally strong. 3 A causal association between asbestos exposure and lung cancer is generally well recognized and there is sufficient evidence in humans for the carcinogenicity of all forms of asbestos J. Corbett McDonald, Asbestos & Lung Cancer: Has the Case Been Proven?, 78 CHEST 374, 376 (1980). 2 Occupational Exposure to Asbestos, 51 Fed. Reg , (June 20, 1986). 3 Id. at INTERNATIONAL AGENCY FOR RESEARCH ON CANCER, MONOGRAPHS ON THE EVALUATION OF CARCINOGENIC RISKS TO HUMANS, Vol. 100C, Asbestos 235, (2012). page 3 simmons hanly conroy A NATIONAL LAW FIRM simmonsfirm.com

4 THE PROBLEM: CREATIVE BIG BUSINESS LAWYERS IGNORING THE SCIENCE Despite the strength of the consensus in the scientific community about the causal relationship between asbestos exposure and lung cancer, some defense lawyers seeking to shield their corporate clients from liability are trying to steer the conversation away from the evidence. As shown below, these lawyers claims are not based on sound science or the medical literature. LOW LEVELS OF ASBESTOS EXPOSURE POSE AN INCREASED RISK OF LUNG CANCER Lawyers for asbestos companies have pushed the idea that the risk of developing asbestos-related illnesses is low in the absence of significant asbestos exposure. The medical literature simply does not support this argument. Put simply, the scientific consensus is that people who breathed in asbestos fibers even at low doses or for short periods of time have an increased risk of getting sick or dying from cancer. This is true whether or not an individual worked in a profession commonly perceived as at a high risk for asbestos exposure (such as carpenters, pipefitters, plumbers, and sheet metal workers). Numerous studies show an increased lung cancer risk among people with low-level exposure to asbestos. For example, Dr. McDonald has observed, [W]ell-conducted studies demonstrate a substantially increased rate of lung cancer among workers having low cumulative exposures to asbestos. Likewise, after conducting a year of hearings concerning chrysotile asbestos (the most common type of asbestos) at which scientific experts from around the world testified, the World Trade Organization concluded that there is no scientifically accepted threshold for harmless exposure to asbestos and found that even very short exposures to asbestos fibers may still pose a significant risk of illness. 5 Thus, whether an individual worked as an insulator, laundered the work clothes of a brake mechanic, or lived a mile away from an asbestos cement factory, the inquiry in litigation concerning asbestos-related lung cancer should simply be whether the person inhaled asbestos fibers, not whether their exposure was significant or in excess of OSHA s permissible limits. ASBESTOS EXPOSURE, BY ITSELF OR IN CONJUNCTION WITH SMOKING, CAUSES CANCER Cigarette smoke is, of course, a well-known cause of lung cancer. The vast body of medical and scientific evidence, however, confirms that the causal link between asbestos exposure and lung cancer is equally strong. When an individual claiming cancer caused by exposure to asbestos also has smoked cigarettes, lawyers for asbestos companies are attempting to divert attention from the role that asbestos inhalation played in the development of cancer, placing it instead on the patient s decision to smoke. The argument, in essence, is that the asbestos maker or the employer responsible for the employee s exposure to asbestos shouldn t be liable 5 World Trade Organization, European Communities-Measures Affecting Asbestos and Asbestos Containing Products, Report of the Panel, WT/DS135/R at 3.62 (2000). page 4 simmons hanly conroy A NATIONAL LAW FIRM simmonsfirm.com

5 It likewise has been conclusively proven that cigarette smoking and exposure to airborne asbestos fibers can act together to cause lung cancer, multiplying the risk that one or the other agent would have caused on its own. for the worker s cancer because he or she would have developed lung cancer from smoking even without asbestos exposure. Such an argument certainly plays well to judges and juries everyone, after all, is familiar with the cancer-causing properties of cigarette smoke but the science shows that such an argument is misleading and scientifically invalid. Studies have long shown that asbestos is a complete carcinogen in the lung, meaning that asbestos fibers, by themselves, can induce the development of cancerous tumors in lung tissue without the involvement of any other cancer-causing agent. It likewise has been conclusively proven that cigarette smoking and exposure to airborne asbestos fibers can act together to cause lung cancer, multiplying the risk that one or the other agent would have caused on its own. A study published in Chest in 1980 demonstrated that among people who have been exposed to asbestos, the risk of lung cancer is elevated by a factor of four whether or not the individual ever smoked cigarettes. 6 In another study of 283 workmen exposed to asbestos who had also regularly smoked cigarettes, 24 died of lung cancer. 7 Among the general population of smokers who had not been exposed to asbestos, only three would have been expected to die of this disease. ASBESTOSIS AND PLEURAL PLAQUES DEMONSTRATE ASBESTOS EXPOSURE, BUT DO NOT CAUSE LUNG CANCER Finally, lawyers for asbestos companies have tried to undermine the science establishing a causal relationship between even low levels of asbestos exposure and lung cancer by claiming that in those patients who do not display asbestosis (a chronic inflammation of lung tissue caused by inhalation of asbestos fibers) or pleural plaques (scarring of the lining outside the lung), their disease cannot be attributable to asbestos exposure. Asbestosis and pleural plaques are indicators of exposure to asbestos. But the science is clear that the converse is not true the absence of asbestosis and pleural plaques are not an indication that no asbestos exposure has occurred, nor does it show that the patient s exposure to asbestos didn t cause his or her cancer. One researcher put it this way: Cigarette smoke causes both emphysema and lung cancer. Emphysema is not a necessary element to connect a particular patient s lung cancer to cigarette smoking. Asbestos fibers, likewise, cause both asbestosis and lung cancer. The presence of asbestosis is not a necessary element to show that lung cancer is connected to asbestos inhalation. 8 Thus, the defense arguments seeking to shift the blame to cigarettes simply do not hold up under scientific scrutiny. 6 E. Phillip Enterline, Attributability in the Face of Uncertainty, 78 CHEST 377, 378 (1980). 7 Irving Selikoff & E. Cuyler Hammond, Asbestos Exposure and Neoplasia, 188 J. Am. Med. Assn. 142 (1964). 8 Jerrold L. Abraham, Commentary: Asbestos Inhalation, Not Asbestosis Causes Lung Cancer, 26 Am. J. Indus. Med. 839 (1994). page 5 simmons hanly conroy A NATIONAL LAW FIRM simmonsfirm.com

6 THE SOLUTION: PUTTING SOUND SCIENCE IN THE HANDS OF JURIES Faced with the overwhelming evidence connecting asbestos exposure to lung cancer, lawyers for asbestos companies have been getting creative, using the arguments described above to convince judges to discount the scientific evidence and take the consideration of that evidence out of the hands of juries. Take, for example, the case of a client diagnosed with lung cancer in 2005 at the age of 60. The client had worked in construction for 20 years from 1993 to As a construction worker, he was exposed to asbestos in drywall, ceiling tiles and insulating paper used to wrap furnace pipes. The client had been a smoker while in the armed services from 1973 to 1993, but he quit smoking 22 years before his cancer diagnosis. Cancer experts testified that the client s lung cancer was caused by both cigarette smoke and asbestos, primarily asbestos since he had quit smoking so long before. But because the client did not have asbestosis or pleural plaques, the asbestos companies that were defendants in the case argued that the client s cancer was 100 percent caused by smoking, notwithstanding his long-term, significant occupational asbestos exposure. Likewise, in another matter, a client who was exposed to asbestos in industrial insulation while working as plumber was diagnosed with cancer in 2012 at age 62. He had smoked from the age of 20 to the age of 45. In addition to his cancer diagnosis, the client also had bilateral pleural plaques caused by asbestos fiber inhalation. Medical experts attributed the client s cancer to asbestos and smoking, mostly asbestos since so much time had elapsed between the client s quitting smoking and his cancer diagnosis. Nonetheless, defendants lawyers argued that the client s lung cancer was caused by smoking and not by asbestos because he did not have asbestos scarring inside of his lung. In each of these cases, the defendants contentions were contrary to the scientific consensus about asbestos exposure causing lung cancer and had the potential to lead the jury away from the relevant inquiry, which is whether the patient inhaled asbestos fibers. Ultimately, the members of the jury must weigh the facts relevant to a patient s cancer diagnosis, and they should do so with accurate and reliable scientific information. The judge s role is to ensure that the expert opinion presented to the jury rests upon the sound foundation of scientific principals and methodologies....the defendants contentions were contrary to the scientific consensus about asbestos exposure causing lung cancer and had the potential to lead the jury away from the relevant inquiry... page 6 simmons hanly conroy A NATIONAL LAW FIRM simmonsfirm.com

7 CONCLUSION In many cases involving asbestos-related lung cancer, lawyers for asbestos companies attempt to cast doubt on the well-established science by creatively employing arguments that lack a sound scientific foundation. It is only by educating judges about the science that attorneys advocating for the rights of injured individuals can ensure that junk science doesn t prevent justice from being done. J. Conard Metcalf Of Counsel Conard Metcalf has successfully represented hundreds of men and women diagnosed with asbestos-caused cancers, such as mesothelioma and lung cancer, as well as individuals suffering from asbestosis and other occupational diseases and toxic injuries. Mr. Metcalf has been invited to speak about asbestos-related diseases at medical conferences and legal seminars and has published articles about occupational diseases in several legal journals. Mr. Metcalf received his law degree from the University of Colorado in 1972, where he was a member of the Law Review. In 1973, he received a Master of Law degree from Columbia University in New York City. More recently, he received an AV rating from Martindale-Hubbell. An AV rating, which identifies a lawyer with a very high to preeminent legal ability, is a prestigious peer-reviewed analysis of Mr. Metcalf s expertise, experience, integrity and overall professional excellence. At Simmons Hanly Conroy LLC, we are deeply committed to giving you a strong, powerful voice to stand up for your rights. With centuries of cumulative litigation in service to our clients and communities, we have a proven staff of over 200 employees who are ready to give you the attention and respect you deserve. CMYK Palette Call us at or visit us on line at Black (100% K) 2015 SIMMONS HANLY CONROY ALL RIGHTS RESERVED simmonsfirm.com

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