Defending Household, Building, and Neighborhood Exposure Cases with Nonoccupational Exposure Histories

Transcription

1 Defending Household, Building, and Neighborhood Exposure Cases with Nonoccupational Exposure Histories A Review of Medical and Scientific Literature November 2013 Bruce T. Bishop Kevin P. Greene Eric D. Cook Michele B. Fanney Willcox & Savage 440 Monticello Avenue, Suite 2200 Norfolk, VA [email protected] 1

2 THIS PRESENTATION CAN BE FOUND ON THE WILLCOX & SAVAGE, P.C. WEBSITE 2

3 HOUSEHOLD EXPOSURE 3

4 Studies that Provide Estimates of Risk of Mesothelioma from Household Exposures Newhouse and Thompson (1965) Ferrante, et al. (2007) Reid (2008) Bourdes meta-analysis (2000) Howe, et al. (1997) 23 (OR) 18 (SMR) 2:67 (HR) 8.1 (RR) 5.8 (OR) Rake, et al. (2000) 1.9 (OR) Females 2.1 (OR) Males 4

5 Rake 2009 UK Mesothelioma Case Control Study Combined estimate of 1.33 (RR for living with a high risk parent or sibling Estimate of 2.1 (RR) for living with a high risk spouse Rake, C, et al., Occupational, domestic and environmental mesothelioma risks in the British population: a case-control study, Br J Indus Med, 1-9,

6 Rake 2009 Domestic exposure beginning after age 30 did not show any excess (OR 0.4, 95% CI ) No trend with duration of domestic exposure Rake, C, et al., Occupational, domestic and environmental mesothelioma risks in the British population: a case-control study, Br J Indus Med, 1-9,

7 DOMESTIC EXPOSURES Almost invariably, pleural mesotheliomas Most often in the wives of insulators and shipyard workers (the most heavily exposed groups) Relatively small percentage of asbestosrelated mesothelioma cases outside of crocidolite mining areas 7

8 Donovan 2012 Our analysis indicates that, to date, the vast majority of household cases reported in the literature occurred among individuals living with one or more family members who worked in industries characterized by high exposures, nearly always to amphibole fibers, and frequently during the 1930s- 1960s. p. 728 Donovan, EP, et al., Evaluation of take home (para-occupational) exposure to asbestos and disease: a review of the literature, Critical Reviews in Toxicology, 42(9): ,

9 ROGGLI FIBER BURDEN DATA - HOUSEHOLD CONTACT CASES WITH ELEVATED FIBER LEVELS Insulators 9 Shipyard Workers 7 Oil/Chemical 3 Piper fitter 2 Paper Mills, Power Plants, Construction, Other 1 each 9

10 Less than ½ of Domestic Exposure Mesotheliomas are Asbestos-Related Attributable fraction (cases attributed to asbestos exposure) in each category ranged from: 97% (86.4 out of 89) male carpenters to 49% (24.3 out of 50) in men and women who lived with an exposed worker before 30 years of age. Rake, C, et al., Occupational, domestic and environmental mesothelioma risks in the British population: a case-control study, Br J Indus Med, 1-9,

11 Carbone, Dodson (2012) Thus, prolonged continuous exposures to asbestos of at least 3 months and usually 10 years were required to induce MM. p. 13 Carbone, M, et al., Malignant Mesothelioma: Facts, Myths and Hypotheses, Journal of Cellular Physiology (2012) 11

12 The Cape environmental mesotheliomas resulted from unusual factors, with geographical, climatic, economic and social circumstances rendering dust exposures both frequent and intense. Persons walking along a tailings-covered Kuruman road in, e.g., 1940, with vehicles raising dust as they pass, were likely subjected to dust clouds containing crocidolite fiber. Children playing on the local dumps were similarly exposed. Langer and Nolan, Fiber Type and Mesothelioma Risk, in Proceedings, Symposium on Health Aspects of Exposure to Asbestos in Buildings, December 14-16, 1998, at p. 91, 109, Harvard University Energy and Environmental Policy Center. 12

13 13

14 Dr. Davis told the Commission that the notion that mesothelioma occurs at low dose first arose from the documented cases of mesothelioma among those who lived in the vicinity of the Cape crocidolite mines in South Africa and from the cases occurring among the wives of asbestos workers who merely brushed their husbands' overalls when they came home from work at night. Dr. Davis is of the opinion that the wrong conclusion has been drawn from this evidence. 305 p Report of The Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos in Ontario, Vol. One (1984) 14

15 Further, Dr. Davis is aware of experiments which have shown that exposing overalls to asbestos clouds of the sort that might have occurred years ago and then brushing them produced dust levels in the order of 200 f/cc. Report of The Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos in Ontario, Vol. One (1984) 15

16 Donovan 2012 Mangold 1982 Clothing worn during gasket handling & handling of other similar asbestos containing parts /fcc (8 hr TWA) Clothing worn during insulation removal 1.4 f/cc (8 hr TWA) See p. 722 Donovan, EP, et al., Evaluation of take home (para-occupational) exposure to asbestos and disease: a review of the literature, Critical Reviews in Toxicology, 42(9): ,

17 Donovan 2012 Evaluation of Clothing Worn During Work with Friction Products Madl, et al (Simulation Study) PCM (f/cc) PCE (f/cc) Clothing shakeout after heavy equipment brake removal See p. 724 Donovan, EP, et al., Evaluation of take home (para-occupational) exposure to asbestos and disease: a review of the literature, Critical Reviews in Toxicology, 42(9): ,

18 Fiber Type Influences Dose When cotton overalls were deliberately contaminated with the two fiber types and then subjected to moderately violent patting with the hands, the crocidolite fibers became airborne in respirable fractions as opposed to the chrysotile which flocculated and presented itself as non-respirable fiber aggregates. p. 389 Report of The Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos in Ontario, Vol. One (1984) 18

19 CENTRAL ISSUE: Was plaintiff s mesothelioma caused or significantly contributed to by asbestos exposure? If so, was any exposure to your client s product a significant contributing factor? 19

20 APPROACHES IN DISCOVERY: 1. Obtain and Review All Available Medical Records 2. Look for references to asbestos exposure history (or lack thereof, in many cases) 20

21 APPROACHES IN DISCOVERY: 3. Line up experts: Industrial Hygienist Radiologist/Pulmonologist Epidemiologist Pathologist Expert in Fiber Burden Analysis Expert in Carcinogenesis 21

22 APPROACHES IN DISCOVERY: 4. Have relevant CT scans and chest x- rays reviewed for presence or absence of any markers of asbestos exposure (i.e., asbestosis, bilateral pleural plaques) 22

23 APPROACHES IN DISCOVERY: 5. Have pathology reviewed by pathologist experienced in diagnosing mesothelioma to confirm or dispute the diagnosis. If lung tissue is available, have reviewed by light microscopy for presence or absence of asbestos bodies and asbestosis. If sufficient lung tissue is available, consider having a fiber burden analysis performed. 23

24 POSSIBLE DEFENSES: A. Not asbestos-related There is a background rate of mesotheliomas not caused by asbestos No evidence of asbestosis or pleural plaques 24

25 Q. Is there evidence of an increased risk of mesothelial cancers at low levels of exposure to asbestos, such as have been encountered by the general population in urban areas? A. There is evidence of an association of mesothelial tumors with air pollution in the neighborhood of crocidolite mines and the factories using mixtures of asbestos fiber types. The evidence relates to conditions many years ago. There is evidence of no excess risk of mesotheliomas from asbestos air pollution which has existed in the neighborhoods of chrysotile and amosite mines... There is no evidence of risk to the general public at present. Report of the Advisory Committee on Asbestos Cancers to the Director of the IARC, in Brogofski, P., Gilson, J.C., Timbrell, V., Wagner, J.C., eds., Biological Effects of Asbestos, Lyon: IARC (1973). 25

26 Asbestos in the Ambient Air Does Not Increase Your Risk of Disease At present, there is no evidence that the small numbers of fibers found in most members of the general population affect health or longevity. National Academy of Sciences, Asbestos: The Need for and Feasibility of Air Pollution Controls (1971):31

27 POSSIBLE DEFENSES: A. Not asbestos-related There is a background rate of mesotheliomas not caused by asbestos No evidence of asbestosis or pleural plaques 27

28 Several of my colleagues and I have reviewed the cases of mesothelioma seen at this hospital since that diagnosis was first made by the Department of Pathology in the early 1950s. In our review the outstanding finding was the fact that 30 percent or more of the patients with a mesothelioma gave no history of exposure to asbestos and on pathological examination had no evidence of asbestos fibers in the lungs or other changes consistent with exposure to asbestos. Therefore, one must conclude that not all mesotheliomas result from exposure to asbestos. Scully, RE, et al., Weekly Clinicopathological Exercises, Case , Case Records of the Massachusetts General Hospital 1990: 323(10):

29 Evidence that Mesothelioma Occurs Spontaneously In epidemiologic studies, many cases report no asbestos exposure Mesothelioma can occur in young children and, in fact, congenitally Look at trends in mesothelioma incidence Consistent with our current understanding of the carcinogenic process 29

30 Carbone, Dodson (2012) It is estimated that about 50-80% of pleural MM in men and 20-30% in women developed in individuals whose history indicates asbestos exposure(s) above that expected from most background settings. Carbone, M, et al., Malignant Mesothelioma: Facts, Myths and Hypothesis, Journal of Cellular Pathology, Accepted for Publication (2012). 30

31 National Cancer Institute s SEER Program SEER program is one of NCIs most important data collection systems Gold standard for cancer registries National Cancer Institute 2005 Surveillance, Epidemiology, and End Results Program, U.S. Department of Health and Human Services, national Institute of Health (NIH), NIH Publications No September 31

32 32

33 Trends in Pleural Mesothelioma Rates in the U.S. Age-Adjusted Incidence per 100,000 Source: Moolgavkar et al. (2009) 33

34 POSSIBLE DEFENSES: A. Not asbestos-related There is a background rate of mesotheliomas not caused by asbestos 34

35 PLEURAL PLAQUES FOUND IN MAJORITY OF PATIENTS WITH ASBESTOS-RELATED MESOTHELIOMAS: Hasan (1997): 76% Hirsch (1982): 13 of 17 exposed mesos and absent in 9 out of 10 unexposed cases Dodson (1997): 39 of 44 cases = 89% Hammar (1994): 80% of people occupationally exposed to asbestos exhibit pleural plaques, often diagnosed at autopsy 35

36 POSSIBLE DEFENSES: A. Not Asbestos-Related (cont d) Asbestos exposure denied in early medical records Industrial hygiene reconstruction estimates plaintiff s cumulative exposures to asbestos within background No asbestos bodies in lung tissue Fiber burden in lung tissue not above background Inadequate latency 36

37 POSSIBLE DEFENSES: A. Not Asbestos-Related (cont d) Asbestos exposure denied in early medical records Industrial hygiene reconstruction estimates plaintiff s cumulative exposures to asbestos within background No asbestos bodies in lung tissue Fiber burden in lung tissue not above background Inadequate latency 37

38 Background Cumulative Exposure For a human exposure for a lifetime (70) years), this range of exposures corresponds to cumulative doses of approximately PCM f-yr/ml. p. 151 U.S. Department of Health and Human Resources, Toxicological Profile for Asbestos, September

39 Range of Cumulative Asbestos Dose Plaintiff s calculated highest cumulative asbestos dose possible from asbestos-containing brakes: Highest cumulative dose from brake dust (f/cc-yrs) Allowable cumulative dose based on TLV/PEL at the time (f/cc-yrs) Allowable cumulative dose based on 0.1 f/cc (f/ccyrs) Range of cumulative background dose (f/cc-yrs) to 0.372

40 POSSIBLE DEFENSES: A. Not Asbestos-Related (cont d) Asbestos exposure denied in early medical records Industrial hygiene reconstruction estimates plaintiff s cumulative exposures to asbestos within background No asbestos bodies in lung tissue Fiber burden in lung tissue not above background Inadequate latency 40

41 Why Conduct a Fiber Digestion? Prove mesothelioma is idiopathic or spontaneous Objective evidence of asbestos exposure and to confirm commercial amphibole exposure

42 Donovan % of lung tissue samples collected from household contacts that were analyzed for fiber type indicated the presence of amphibole asbestos, including amosite and crocidolite, or a combination of amphiboles and chrysotile. (Gibbs et al., 1990; Gibbs et al., 1989; Howe et al., 1999; Huncharek et al 1989; Roggli & Longo, 1991; Roggli et al. 2002). p. 725 Donovan, EP, et al., Evaluation of take home (para-occupational) exposure to asbestos and disease: a review of the literature, Critical Reviews in Toxicology, 42(9): ,

43 Fiber Burden/Para-Occupational Exposures Lung fiber burden analyses of cases with paraoccupational exposure have been comparatively few but generally, they have shown commercial amphiboles in amounts comparable to workers with light to moderate direct occupational exposure (Dawson et al. 1993; Gibbs et al. 1990; Huncharek et al. 1989; Roggli 2004; Chapter 4. p. 311 Gibbs AR and F Pooley, Mineral Fiber Analysis and Asbestos-Related Diseases, Chapter 12 in Asbestos and Its Diseases, Craighead JE and AR Gibbs (eds.), Oxford University Press: New York,

44 John Doe s Dose 1 2 No doctor found asbestos bodies in lung tissue No doctor found asbestosis 3 4 No doctor found pleural plaques related to asbestos Same amount of chrysotile in lung as general population 44

45 POSSIBLE DEFENSES: A. Not Asbestos-Related (cont d) Asbestos exposure denied in early medical records Industrial hygiene reconstruction estimates plaintiff s cumulative exposures to asbestos within background No asbestos bodies in lung tissue Fiber burden in lung tissue not above background Inadequate latency 45

46 POSSIBLE DEFENSES: B. Chrysotile Defense Chrysotile in my product did not contribute to plaintiff s mesothelioma 46

47 Mesothelioma Deaths by Fiber Type Chrysotile Cement Plant 0.0 Chrysotile Friction Plant 0.0 Chrysotile Friction Plant 0.5 Quebec Chrysotile Miners + Millers 0.5 Italian Chrysotile Mine 0.6 Crocidolite + Chrysotile Friction Materials Factory Workers 1.3 Amphibole + Chrysotile Textile Factory Workers Australian Crocidolite Miners Amosite Factory Workers Amosite + Chrysotile Exposure Crocidolite Containing Gas Mask Crocidolite Crocidolite Containing Cigarette Gas Mask Filters 47 Source: Pathology of Occupational Lung Disease. A Churg and FHY Green (eds), Williams & Wilkins, 1998.

48 Pierce 2008 No effect level for chrysotile/mesothelioma f/cc yrs. Pierce, JS, et al., An Evaluation of Reported No-Effect Chrysotile Asbestos Exposures for Lung Cancer and Mesothelioma, Critical Reviews in Toxicoloty, 38: ,

49 Donovan 2012 Household exposure calculation based based on primary workplace exposure of 30 f/cc for 30 years Calculated a cumulative household exposure of 0.56 f/cc years Potentially enough exposure for amphibole caused mesothelioma No increased risk of chrysotile only p. 727 Donovan, EP, et al., Evaluation of take home (para-occupational) exposure to asbestos and disease: a review of the literature, Critical Reviews in Toxicology, 42(9): ,

50 1972 OSHA Regulations Change rooms required for industries and locations that were exceeding PEL (permissible exposure limits) 50

51 Donovan 2012 The employer shall provide two separate lockers or containers for each employee, so separated or isolated as to prevent contamination of the employee s street clothes from his work clothes (OSHA, 1972, p ). p. 706 Donovan, EP, et al., Evaluation of take home (para-occupational) exposure to asbestos and disease: a review of the literature, Critical Reviews in Toxicology, 42(9): ,

52 Possible Defenses C. Alternative Exposures Early exposures will be likely cause 52

53 La Vecchia, C., et al., "Role of stopping exposure and recent exposure to asbestos in the risk of mesothelioma," European Journal of Cancer Prevention 2012, Vol. 21 No 3,

54 HOUSEHOLD EXPOSURES/PERITONEAL MESOTHELIOMA Very few/almost all are pleural mesotheliomas 54

55 Cancer (2011) 55

56 Columbia University Mesothelioma Center Peritoneal mesothelioma is different than pleural mesothelioma Most peritoneal mesotheliomas are not caused by asbestos exposure The rare peritoneal mesotheliomas that are related to asbestos involve high exposures 56

57 Peritoneal Mesothelioma is NOT a Signal Tumor for Asbestos Pleural Mesothelioma Peritoneal Mesothelioma 20% Not Related to Asbestos 80% Asbestos 70-85% Not Related to Asbestos 15-30% Asbestos Wagmiller, et al., Peritoneal Mesothelioma: The Columbia Experience, Chapter 48 in Malignant Mesothelioma, Pass, HI, et al. (eds.), Springer,

58 Carbone, Dodson (2012) About 30% of peritoneal MM in men is associated with above background asbestos exposure. [at p. 45] Carbone, M, et al., Malignant Mesothelioma: Facts, Myths and Hypotheses, Journal of Cellular Physiology (2012) 58

59 SPECIAL APPROACHES IN FEMALE CASES 59

60 Estimated % of Female Mesotheliomas That Can Be Attributed to Domestic Asbestos Exposure 16% Rake/Peto, et al (Living with a high risk worker) Spirtas % McDonald, et al % 60

61 61

62 62

63 Camiade (2012) More than 80% of mesothelioma cases in men are attributable to occupational asbestos exposure compared to only 40% in women. Camiade, E, et al., Characterization of a French series of Female Cases of Mesothelioma, Am J Indus Med, (2012). 63

64 Carbone, Dodson (2012) The association of peritoneal MM in women to asbestos exposure is epidemiologically weak to undetectable. Thus, factors other than asbestos appear to be the main cause of MM in women. [at p. 45] Carbone, M, et al., Malignant Mesothelioma: Facts, Myths and Hypotheses, Journal of Cellular Physiology (2012) 64

65 Sugarbaker, et al. A Review of Peritoneal Mesothelioma at the Washington Cancer Institute (2003)... our data did not support a relationship between asbestos exposure and peritoneal mesothelioma among women. Surg. Oncol. Clin. N. Am. 12:

66 Trends in Peritoneal Mesothelioma Rates in the U.S. Age-Adjusted Incidence per 100, Source: Moolgavkar et al. (2009)

67 67

68 Ferrante 2007 Household Exposures Lung Cancer Rates NOT INCREASED Reid 2008, 2013 Camus

69 ARE CHILDREN MORE SUSCEPTIBLE? 69

70 Reid 2013 Although exposure in childhood seems to confer a lower risk for MM than exposure in adult years it remains possible that exposure at various developmental stages during childhood may affect the risk. In this study, this was not the case and mesothelioma incidence rates were similar for each of the age ranges. p. 141 Reid, et al, All-Cause Mortality and Cancer Incidence Among Adults Exposed to Blue Asbestos During Childhood, Am J Ind Med 56: (2013) 70

71 EFFECT OF AGE AT INOCULATION OF ASBESTOS G. Berry, et al., Effect of Age at Inoculation of Asbestos on Occurrence of Mesotheliomas in Rats, Int J Cancer 17, (1976), p

72 Committee on Carcinogenicity, CC/13/S1, Statement n the Relative Vulnerability of children to Asbestos Compared to Adults,,p. 1 72

73 Committee on Carcinogenicity, CC/13/S1, Statement on the Relative Vulnerability of children to Asbestos Compared to Adults, 73

74 Reid 2007 Children who were at Wittenoom aged < 15 years had a lower rate of mesothelioma than those aged 15 years, but there was no difference in the doseresponse slope between those two groups. p. 379 Reid, A., et al., Age and Sex Differences in Malignant Mesothelioma After Residential Exposure to Blue Asbestos (Crocidolite), Chest, 131: ,

75 IS THERE A SPECIAL HEALTH RISK TO CHILDREN FROM ASBESTOS EXPOSURE? From our review of the medical evidence and from our questioning of the various witnesses who appeared before us, we could find no substantive support for the proposition that the lungs of young children are in and of themselves more susceptible than those of adults to asbestos-related diseases. Indeed, there is evidence from animal experiments that might well suggest a contrary conclusion. p. 306 Report of The Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos in Ontario, Vol. One (1984) 75

76 Household Exposure Mesothelioma Key Summary Points: 1) Vast majority caused by asbestos involve heavy exposure occupations such as insulators and shipyard workers 2) Vast majority pleural and not peritoneal 3) Number is drastically declining 4) Almost all involve exposure to amosite or crocidolite 76

77 Household Exposure Mesothelioma Key Summary Points: 5) Majority in female spouses than daughters; few in males 6) Given large % of non-asbestos related mesotheliomas in females, plaintiff s burden of proof should include a fiber burden study 7) Little proof lung cancer rates are increased 8) Always keep in mind vast majority of asbestos related disease caused by occupational rather than non-occupational asbestos exposure 77

78 Home Exposures and Shadetree Brake Work Product ID: Importance of factual investigation Neighbors Home sales records Renovation/construction permits Detailed description of work and products Testimony in other areas Limit Exposures/Emphasize Low Dose: Frequently cumulative dose is < cumulative background exposures Low dose chrysotile exposures = No increased risk of mesothelioma 78

79 HOME EXPOSURES 1) Plaintiff alleged exposure to asbestos-containing drywall during new construction 2) Contractor deposed and testified plaster only 3) Current homeowner deposed and testified plaster only 79

80 Home Exposures and Shadetree Brake Work Product ID: Importance of factual investigation Neighbors Home sales records Renovation/construction permits Detailed description of work and products Testimony in other areas Limit Exposures/Emphasize Low Dose: Frequently cumulative dose is < cumulative background exposures Low Dose Chrysotile Exposures: No increased risk of mesothelioma Alternative Exposures: Occupational exposures Fiber burden studies 80

81 Rake 2009 The only significant non-occupational association was living with a potentially exposed worker before 30 years of age (OR 2.0), 95% CI ). p. 100 Rake, C, et al., Occupational, domestic and environmental mesothelioma risks in the British population: a case-control study, Br J Indus Med, 1-9,

82 Rake 2009 The OR for any type of DIY activity was 0.7 ( ), and no subgroup of DIY activity by frequency or possible asbestos exposure suggested any excess. p. 100 Rake, C, et al., Occupational, domestic and environmental mesothelioma risks in the British population: a case-control study, Br J Indus Med, 1-9,

83 Home Exposures and Shadetree Brake Work Product ID: Importance of factual investigation Neighbors Home sales records Renovation/construction permits Detailed description of work and products Testimony in other areas Limit Exposures/Emphasize Low Dose: Frequently cumulative dose is < cumulative background exposures Low Dose Chrysotile Exposures: No increased risk of mesothelioma Alternative Exposures: Occupational exposures Fiber burden studies 83

84 Home Exposures and Shadetree Brake Work Product ID: Importance of factual investigation Neighbors Home sales records Renovation/construction permits Detailed description of work and products Testimony in other areas Limit Exposures/Emphasize Low Dose: Frequently cumulative dose is < cumulative background exposures Low Dose Chrysotile Exposures: No increased risk of mesothelioma Alternative Exposures: Occupational exposures Fiber burden studies 84

85 HOUSEHOLD EXPOSURES LEGAL DECISIONS 85

86 Levine, R. L., Clearing the Air: Ordinary Negligence in Take-Home Asbestos Exposure Litigation, Washington Law Review, 86(2): ,

87 Levine, R. L., Clearing the Air: Ordinary Negligence in Take-Home Asbestos Exposure Litigation, Washington Law Review, 86(2): ,

88 JURISDICTIONS REJECTING TAKE-HOME ASBESTOS CLAIMS AGAINST PREMISES DEFENDANTS Illinois (2 nd District App.)* Indiana Pennsylvania Delaware Georgia Maryland New York Iowa Ohio California* Michigan (Tex opinion) Kentucky * Split of Authority 88

89 States Legislatively Barring Claims Against Premises Owner s for Take- Home Exposure Ohio Kansas - Ohio Rev. Code Ann (A)(1) (West 2010) - Kan. Stat. Ann (a)(Supp. 2009) 89

90 JURISDICTIONS PERMITTING TAKE-HOME ASBESTOS CLAIMS AGAINST PREMISES DEFENDANTS Louisiana Illinois Tennessee Washington California New Jersey 90

91 Millsaps v. Aluminum Company of America, et al., USDC, ED Pa, 2: ER, Order,

92 In addition, some jurisdictions place limitations on the scope of eligible claims based upon the year that the plaintiff was exposed to asbestos. p Levine, R. L., Clearing the Air: Ordinary Negligence in Take-Home Asbestos Exposure Litigation, Washington Law Review, 86(2): ,

93 JURISDICTIONS NO DUTY UNTIL A CERTAIN DATE WHEN INJURY BECAME FORESEEABLE Texas (1972) (1964) Kentucky (1972) Michigan (1972) Illinois (4 th Cir.) (Oct, 1964) 9 th Cir. (Apply Wash. Law) Not Before

94 FORESEEABILITY/STATE OF THE ART PREMISES DEFENSE Alcoa, Inc., Appellant v. Behringer, et al, Appellees, Court of Appeals Texas, Dallas, October 11,

95 FORESEEABILITY/STATE OF THE ART PREMISES DEFENSE In order for the plaintiff to prevail, a factfinder must determine that the harm she suffered was within a foreseeable range of danger, [internal citations] Hoyt v. Lockheed Martin Corporation, et al., US Court of Appeals, Ninth Circuit, no> , D.C. No.2:12-cv TSZ, Memorandum,

96 Hoyt v. Lockheed Martin Corporation, et al., US Court of Appeals, Ninth Circuit, no> , D.C. No.2:12-cv TSZ, Memorandum,

97 Hoyt v. Lockheed Martin Corporation, et al., US Court of Appeals, Ninth Circuit, no> , D.C. No.2:12-cv TSZ, Memorandum,

98 Hoyt v. Lockheed Martin Corporation, et al., US Court of Appeals, Ninth Circuit, no> , D.C. No.2:12-cv TSZ, Memorandum,

99 In the Matter of New York City Asbestos Litigation, Holdampf, et al., v. A.C. & S., Inc. et al., Hoyt v. Lockheed Martin Corporation, et al.,

100 MANUFACTURERS NO DUTY FOR TAKE-HOME EXPOSURE 10 th Circuit (applying Oklahoma Law) 100

101 MANUFACTURERS NO DUTY PRE-1972 Maryland (Farrar) Kentucky (No duty = ) (Mortin v. CG&E) (2008) 101

102 GP ads Farrar, A3d (Md. July 2013) 1. Injuries not foreseeable to GP in at time should have allegedly provided a warning 2. Even if foreseeable, no feasible way for GP to provide an effective warning to plaintiff. See Executive Discussion by Michael Haislip and Jonathan Singer (Miles & Stockbridge) in Law

103 Farrar Opinion (July 8, 2013) The End of Take-Home Asbestos Exposure Claims? Law360, August, 26,

104 Farrar Opinion (July 8, 2013) Georgia-Pacific, LLC, f/k/a Georgia-Pacific corporation v. Farrar, No. 102, September Term 2012, Opinion by Wilner, J. (Retired, Specially Assigned) (July 2013) 104

105 Georgia-Pacific, LLC, f/k/a Georgia-Pacific corporation v. Farrar, No. 102, September Term 2012, Opinion by Wilner, J. (Retired, Specially Assigned) 105

106 Georgia-Pacific, LLC, f/k/a Georgia-Pacific corporation v. Farrar, No. 102, September Term 2012, Opinion by Wilner, J. (Retired, Specially Assigned) 106

107 Georgia-Pacific, LLC, f/k/a Georgia-Pacific corporation v. Farrar, No. 102, September Term 2012, Opinion by Wilner, J. (Retired, Specially Assigned) 107

108 Georgia-Pacific, LLC, f/k/a Georgia-Pacific corporation v. Farrar, No. 102, September Term 2012, Opinion by Wilner, J. (Retired, Specially Assigned) 108

109 NEIGHBORHOOD EXPOSURES 109

110 NEIGHBORHOOD EXPOSURES/ MESOTHELIOMA Extremely rare outside of crocidolite mining areas Have been reported cases in neighborhoods surrounding factories using crocidolite asbestos, particularly in Great Britain, Germany, and Italy 110

111 Airborne concentrations of LA where there was visible vermiculite outdoors were 3-15 times higher during digging/gardening, raking, and mowing activities compared with homes without visible outdoor vermiculite. Digging and gardening activities represented the greatest contribution to estimated exposures and 73% of the participants reported this activity before the age of 6 years. Ryan, et al., Childhood exposure to Libby amphibole during outdoor activities, J Exp Sci and Environ Epidemiol (2013) 111

112 No case with a history of chrysotile mining entered the study and there was no case involving exclusively environmental exposure to chrysotile. Rees, D., et al., Asbestos Exposure and Mesothelioma in South Africa, South African Medical Journal, 89:627, 633 (1999). 112

113 Donovan et al. also omit a 1998 study of residents of a Canadian chrysotile-mining town. Camus et al. reported a statistically significant increased rate of mesothelioma in community residents, some of whom were exposed to take home asbestos (seven in a population of fewer than 20,000). Estimated exposures were low: 7.8 fiber/cc-years or 2-3 fibers/cc per year. p Egilman, D.S. and N.M. Druar, Commentary on evaluation of take home (para-occupational) exposure to asbestos and disease: a review of the literature, Donovan et al., International Journal of Occupational and Environmental Health, 19(3): ,

114

115 Thetford Mines p

116 The estimated average cumulative level of exposure was 25 fiber-years per milliliter. p Camu, M, et al., Nonoccupational Exposure to Chrysotile Asbestos and the Risk of Lung Cancer, The New England Journal of Medicine, 338(22): ,

117 CAMUS 1998 p Camus, M, et al., Nonoccupational Exposure to Chrysotile Asbestos and the Risk of Lung Cancer, The New England Journal of Medicine, 338(22): ,

118 We are indebted to the members of the expert panel on exposure assessment: Drs. Bruce Case of Canada, Morton Corn of the United States, Graham Gibbs of Canada, William Nicholson of the United States, and Patrick Sèbastien of France; p Camu, M, et al., Nonoccupational Exposure to Chrysotile Asbestos and the Risk of Lung Cancer, The New England Journal of Medicine, 338(22): ,

119 Case, et al., Preliminary Findings for Pleural Mesothelioma among women in the Quebec chrysotile Mining Regions, Ann Occup Hyg., Vol. 1, pp ,

120 Mean cumulative exposure (residential), domestic, and occupational combined) was estimated as fibers/ml-yr (range ) for case and 84/1 fibers/ml-yr (range 0-189) for controls, with a plausible 5-fold error on either side. p. 128 Case, et al., Preliminary Findings for Pleural Mesothelioma among women in the Quebec chrysotile Mining Regions, Ann Occup Hyg., Vol. 1, pp ,

121 Case, et al., Preliminary Findings for Pleural Mesothelioma among women in the Quebec chrysotile Mining Regions, Ann Occup Hyg., Vol. 1, pp ,

122 Camus, et al., Risk of Mesothelioma Among Women Living Near Chrysotile Mines Versus US EPA Asbestos Risk Model: Preliminary Findings, Ann Occup Hyg, vol. 46, Suppl 1, pp95-98,

123 Reid, et al, All-Cause Mortality and Cancer Incidence Among Adults Exposed to Blue Asbestos During Childhood, Am J Ind Med 56: (2013) 123

124

125 125

126 126

127 127

128 West Bank Neighborhood Ranks in the Top 20 Counties in the U.S. for Rate of Mesothelioma Cases Case, B.W., et al., "Applying Definitions of Asbestos to Environmental and Low-Dose Exposure Levels and Health Effects, Particularly Malignant Mesothelioma, Journal of Toxicology and Environmental Health, Part B, p. 22,

129 West Bank 129

130 Why are there so many mesothelioma cases in the West Bank neighborhood? Crocidolite asbestos used to make asbestos cement and other products at JM Pipe Plant Scrap material delivered into the community to use on driveways and streets Crocidolite contamination in the air Continuous exposure 130

131 JM Waste Found in West Bank Locations Contained Crocidolite Bulk analyses of waste samples taken from West Bank locations by Louisiana Department of Environmental Quality showed both chrysotile and crocidolite Crocidolite found at concentrations up to 35 percent by volume 131

132 U.S. Environmental Protection Agency Children have been seen playing on driveways composed of friable ACM with toys and basketballs. Residents have been seen mowing grass with ACM outcropping in the yard, and dust clouds of ACM are being created by passing automobiles. 132

133 U.S. Environmental Protection Agency The need for emergency action is further supported by the particular location of the ACM which causes this site to pose substantial and imminent threats to the public health and welfare. More specifically, the asbestos containing materials are located in residential yards and driveways, school playgrounds, around day care centers, and in other areas easily accessed by the public. 133

134 Case and Abraham (2009) It was distributed to local residents free of charge, often by pickup or dump trucks. at 5 Case, B and J Abraham, Heterogeneity of exposure and attribution of mesothelioma: Trends and strategies in two American counties, Journal of Physics: Conference Series 151 (2009). 134

135 Case and Abraham (2009) The material was located in residential yards and driveways, school playgrounds, around day care centers, and in other areas easily accessed by the public and Children were seen playing on driveways composed of friable ACM with toys and basketballs vehicles were observed creating dust clouds when passing over areas that contained the ACM. All of these routine activities (were) expected to increase ACM friability and dramatically increase human exposures. at 5 Case, B and J Abraham, Heterogeneity of exposure and attribution of mesothelioma: Trends and strategies in two American counties, Journal of Physics: Conference Series 151 (2009). 135

136 Airborne Crocidolite Highly Likely on West Bank Even though waste hardened (due to cement content) crocidolite fibers were not encapsulated or sealed Activities such as driving, mowing lawn, playing basketball caused surface dust to become airborne Surface crumbled over time revealing additional crocidolite fibers 136

137 Airborne Crocidolite Highly Likely on West Bank JM pipe plant exhaust systems used only partially effective bag filters to capture dust JM waste dump sites were not covered JM ground waste to powder before delivery Delivery trucks were not covered Upon delivery waste was spread over large surface area, often by hand Children played in dust piles 137

138 West Bank - Contaminated with Crocidolite Asbestos 138

139 1.5 mile radius from JM Plant 1 mile radius from JM Plant 0.5 mile radius from JM Plant = = Ave F & 4 th St. 139

140 Case, B.W., and J.L. Abraham, Heterogeneity of exposure and attribution of mesothelioma: Trends and strategies in two American counties, Journal of Physics: Conference Series, 151(1):

141 Case, B.W., and J.L. Abraham, Heterogeneity of exposure and attribution of mesothelioma: Trends and strategies in two American counties, Journal of Physics: Conference Series, 151(1):

142 Wittenoom, Australia Tailings from the mine, rich in crocidolite fibres, were used throughout the town to pave roads and footpaths, parking areas and the school playground, and for reducing the red dust in backyards. Tailing continued to be used in the town until the mid 1960s. Vehicle movement over the roads raised a great deal of dust and airline pilots claimed they homed in on Wittenoom from considerable distances by identifying the blue haze on the horizon. p. 743 Reid, A, et al., The mortality of women exposed environmentally and domestically to blue asbestos at Wittenoom, Western Australia, Occup Environ Med, 65: (2008). 142

143 Italy Area around Casale Monferrato, Italy, where an asbestos cement plant was active for decades. Asbestos pollution from an industrial source greatly increases mesothelioma risk. Maule, MM, et al., Modeling Mesothelioma Risk Associated with Environmental Asbestos Exposure, Environmental Health Perspectives, 115(7): (2007). 143