Carbone
Editor's note: This is the first in a three-part series into the science of asbestos. The series will ask and attempt to answer what is myth, what is fact, what is not known and how the science affects the litigation of asbestos claims.
WASHINGTON (Legal Newsline) - Asbestos litigation has become a multibillion-dollar industry -- bankrupting large corporations, enriching lawyers and courts and providing much needed relief to victims of the deadly diseases that exposure to some types asbestos in specific amounts will cause.
Asbestos has been called by U.S. Rep. Trent Franks "the worst occupational health disaster in U.S. history." But Franks, R-Ariz., condemned much of the legal process of those who are suing to recover damages caused by some of these substances.
There is much about asbestos that is unknown. It is not all settled science. There is general scientific concurrence about some characteristics of the pathogenic nature of some forms of the substance - controversy about the pathogenic of other forms.
Indeed, one of the preeminent researchers of mesothelioma, Professor Michele Carbone of the University of Hawaii expressed dismay about the subject.
He said, "When I first heard about this subject I read everything I possibly could about it. By the time I was finished reading all the scientific literature, I was more confused than when I started."
Carbone is no ordinary researcher - when he talks about this people listen. According to the University of Hawaii Cancer Center, Carbone and his research team have received more than half of all federal funding for mesothelioma.
Approximately 90 percent of the mesothelioma-specific funding from the National Cancer Institute goes to him and his research team. Carbone previously worked at the Cancer Center of Loyola University in Chicago, and for the National Institutes of Health, where he studied the pathogenesis of mesothelioma.
Born in Italy, Carbone studied at the Medical School of Rome and is board certified in Anatomic Pathology in both Italy and the United States.
If such a distinguished scientist can express doubts about the research, what chance is there for a lay person on a jury? After all, there is no consensus about how much of an exposure to the various forms of the material is necessary to cause a disease. This affects these multibillion-dollar litigations.
Let there be no doubt -- asbestos is still a multibillion-dollar-a-year industry. But, now, the industry for which it generates revenue is the legal industry. Lawsuits about this material generate almost as much revenue for the trial lawyers' bar and for courts as it once did for the companies that mined, manufactured and sold the substance - which, by the way, is still mined, manufactured and sold.
For four decades companies have been sued by people who allege that they have been stricken with deadly diseases because they have been exposed to some types of asbestos.
It is appropriate to begin with a definition of asbestos. There are several available from authoritative websites such as the Environmental Protection Agency and the National Institute of Health. They may differ in some slight ways. However, albeit slight, they are significantly different and could conceivably cause a lay person to misinterpret something.
According to the EPA, "Asbestos is the name given to a number of naturally occurring fibrous minerals with high tensile strength, the ability to be woven, and resistance to heat and most chemicals. Because of these properties, asbestos fibers have been used in a wide range of manufactured goods, including roofing shingles, ceiling and floor tiles, paper and cement products, textiles, coatings, and friction products such as automobile clutch, brake and transmission parts. The Toxic Substances Control Act defines asbestos as the asbestiform varieties of: chrysotile (serpentine); crocidolite (riebeckite); amosite (cummingtonite/grunerite); anthophyllite; tremolite; and actinolite. [4]
The NIH defines asbestos slightly different. It says, "Asbestos is the name given to a group of minerals that occur naturally in the environment as bundles of fibers... These fibers are resistant to heat, fire, and chemicals and do not conduct electricity... Asbestos minerals are divided into two major groups: Serpentine asbestos and amphibole asbestos. Serpentine asbestos includes the mineral chrysotile, which has long, curly fibers that can be woven. Chrysotile asbestos is the form that has been used most widely in commercial applications. Amphibole asbestos includes the minerals actinolite, tremolite, anthophyllite, crocidolite, and amosite. Amphibole asbestos has straight, needle-like fibers that... are more limited in their ability to be fabricated."
The EPA definition mentions the names riebeckite and cummingtonite/grunerite. The NIH definition does not. While these differences are not substantial, the fact is two authoritative sources provide slightly different facts. The NIH divides asbestos into two different categories, the EPA does not.
A third source - the Department of Justice and Attorney General for Queensland Australia has another slightly different definition. It states:
"Asbestos is commonly referred to by three types: chrysotile ('white' asbestos - belonging to the serpentine group); crocidolite ('blue' asbestos - belonging to the amphibole group); (and) amosite ('brown' or 'grey' asbestos - belonging to the amphibole group).
"Under the law, asbestos-containing materials are divided into two types: bonded asbestos-containing material (bonded asbestos) contains a bonding compound reinforced with asbestos fibers; (and) friable asbestos-containing material (friable asbestos) is asbestos-containing material that, when dry, is or may become crumbled, pulverised or reduced to powder by hand pressure."
Here the definition is adding colors and another characteristic of bonded and friable. But it omits three types of asbestos that the both the EPA and NIH mention.
If it is confusing to the authorities how confusing is it to the average person on a jury?And how solid is the science behind this "health disaster?"
Some of it is irrefutably rock solid. But some of it that is being used in the most recent round of lawsuits may not be on such firm ground. If it is not then where does that leave the courts, the lawyers, the victims and the juries?
When the U.S. Supreme Court ruled in 1993 about the standard for the admissibility of expert evidence in Daubert v. Merrell Dow Pharmaceuticals, it reversed itself in the 1923 case of Frye v. United States.
The Daubert ruling stated that "the Rules of Evidence - especially Rule 702 - do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands."
This series will explore the accord and the discord among the experts. There will be references to the national and international organizations that have spent years studying and defining it.
Experts have been consulted and the literature reviewed. People such as the aforementioned Carbone, MD, PhD, Director, University of Hawai'i Cancer Center; Arthur L. Frank, MD, PhD, Professor and
Chair of the Department of Environmental and Occupational Health, Drexel University School of Public Health who testifies frequently as an expert witness on behalf of plaintiffs; and Dr. Joseph R. Testa who directs the human genetics program at Fox Chase Cancer Center.
Testa received a 1999 Irving J. Selikoff Award for Cancer Research from the Ramazzini Institute for Occupational and Environmental Health Research, Carpi, Italy. He is part of a team of researchers which published a paper August 28, of an NIH study showing a genetic link to mesothelioma.
This monograph will also ask for the opinions of judges and attorneys who try these cases. What do they know of the scientific knowledge and how do they determine what is admissible. How carefully does an attorney and/or judges review the data that is contrary to their positions? How much of the scientific research is influenced by the litigation? How are these legal proceedings managed in foreign countries?
Part two of this series will show what is known and unknown and where there are differences among the experts.