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Tuesday, November 19, 2019

Former OSHA director testifies for Garlock in bankruptcy case

By T.K. Kim | Jul 26, 2013


CHARLOTTE, N.C. (Legal Newsline) -- Garlock Sealing Technologies called the former director of the Occupational Safety and Health Administration to testify on its behalf Thursday in federal bankruptcy court.

John Henshaw, a former Bush administration appointee tapped to lead the federal agency in 2001, testified that he was hired by Garlock -- a manufacturing company in Chapter 11 bankruptcy because of asbestos-related litigation -- to conduct an exposure assessment to help determine the likely amount of asbestos that litigants suing the gasket manufacturer may have come into contact with.

The hearing took place Thursday at the U.S. Bankruptcy Court for the Western District of North Carolina.

Henshaw said he focused on trying to assess how claimants who might have been exposed to asbestos from working on gasket installation and removal compared with possible exposure from other potential sources. The results of his assessment indicated that the cumulative annual asbestos exposure for a pipefitter, the occupation of most of the claimants, in an industrial setting, averaged about 0.02 fibers per cubic centimeter (f/cc) annually.

Under current OSHA regulations, employers must ensure that no employee is exposed to an airborne concentration of asbestos in excess of 0.1 f/cc in an 8-hour time-weighted average.

"Exposure depends on how many times someone does that job," Henshaw said.

The bankruptcy trial, which began Monday and is expected to last three weeks, will determine the estimated liability of the company in future asbestos claims.

To conduct his assessment, Henshaw testified he relied on past depositions and a supplemental exposure questionnaire because there was no direct monitoring data to determine the actual levels when most of the exposure took place decades ago. He measured frequency, duration of exposure and proximity to make his determinations, he testified.

Henshaw said that from his estimates, the likely exposure of pipefitters who came into contact with asbestos while removing or installing gaskets was "quite low; not zero, but quite low."

In cross examination, lawyers for the claimants tried to paint Henshaw as a hired gun without the proper credentials to make such a valid determination. The claimants' attorneys pointed out that Henshaw wasn't a medical doctor or public epidemiologist and was being paid a large consulting fee by Garlock to conduct the exposure assessment and for his testimony. Henshaw said he spent about 60 to 70 percent of his current consulting work in private industry on asbestos-related litigation and has billed Garlock close to 700 hours of work for this case alone.

Following Henshaw, Garlock attorneys called a Stanford medical professor who heads the Center for Advanced Lung Disease to the witness stand. Dr. David Weill testified that a body's natural lung defenses typically prevents small exposures to asbestos from causing harm. Because of these defenses and studies he reviewed calling into question the possible causation link between chrysotile asbestos, the kind mostly used to make gaskets, and mesothelioma, gasket work did not significantly elevate the risk of developing the cancer. Most of the studies Weill reviewed led him to believe that many asbestos workers who subsequently contracted mesothelioma probably developed it after being exposed to other forms of asbestos other than chrysotile.

"I don't think that's reasonable," Weill said about the possibility low-levels of chrysotile exposure leads to mesothelioma. "Now we have the benefit of 50 years plus of studying this," Weill said of the current research asbestos research available.

Attorneys for the claimants also sought to undermine Weill's testimony on cross examination by pointing out he has only testified on behalf of defendant companies facing asbestos liability, never on behalf of plaintiffs, and that he had collected approximately $225,000 alone for his work on this case. Attorneys for the claimants also pointed to various studies that contradicted Weill's conclusion including various animal studies where some test subjects who were exposed to large levels of chrysotile developed the fatal cancer.

Weill responded that the studies were likely flawed because isolating the actual exposure to different kinds of asbestos was almost impossible. "Studies aren't set up to show where there's no risk," Weill said. "A lot of times authors are focused on whatever they're focused on."

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