by John Ned Lipsitz

Lately, conservative newspaper columnists are arguing that trial lawyers are to blame for the general bankruptcy of the asbestos business. As an attorney who has represented the victims of the asbestos industry since 1986, I would like to place the blame for the current crisis where it belongs, on the shoulders of those companies like Johns Manville that made substantial profits from the sales of asbestos at the expense of the health and lives of workers here and around the world.

The real cause of the present crisis can be found in the misconduct of hundreds of companies that bought and sold asbestos and incorporated it into a large variety of products used in the shipbuilding industry during World War II, during the post-War boom in the construction industry, and in manufacturing. As a result of its widespread use and its physical characteristics–indestructible, friable, and aerodynamic, hundreds of thousands of workers were exposed by inhaling the fine, needle-like invisible fibers. And, as the industry learned more than forty years ago, relatively brief, low-level exposures can cause the development of a rapidly progressive, invariably fatal cancer known as mesothelioma.

Asbestos-induced diseases do not manifest themselves for many years after initial exposure. For lung cancers, this latency period is approximately twenty years or more; for mesothelioma, a tumor which engulfs and destroys the outside lining of the lung, the period is between fifteen and fifty years. It became apparent in the early 1970’s that many asbestos exposed workers were dying from cancers, and soon it also became apparent that many more would die over the next several decades.

Conservative political commentators, writing in the interests of the insurance industry and big business, prefer to point to the sixty asbestos companies which have filed for bankruptcy protection from their creditors. They never discuss the individuals suffering and dying from lung cancer or mesothelioma. Perhaps if they took the time to speak to someone like the widow of one of the clients of Lipsitz & Ponterio, they would not be so quick to identify as victims the companies that profited from the asbestos business.

When Paul was eighteen years old, he took a job in a chemical factory in Niagara County. The company purchased asbestos fibers in one hundred pound sacks to use as filler in the production of plastic molding compound for re-sale to other companies to make things like distributor caps and other durable, heat-resistant parts for appliances. Paul handled the asbestos himself and was around when his co-workers handled it, too. His employer used hundreds of thousands of pounds of asbestos and the air was contaminated by it. No one at the factory had any idea that it was hazardous. Paul’s employer bought the asbestos from four different companies. The two largest suppliers were Johns Manville and Cape, at the time the world’s foremost supplier of asbestos from South Africa. Cape operated through a wholly owned subsidiary called North American Asbestos Corporation.

The general public knows that Johns Manville went bankrupt in 1982 and that the leading producer in the world “hadn’t protected workers against known dangers.” What is not generally reported is that it was company policy not to tell workers that their medical examinations revealed they had asbestosis since the company saved money by letting them work until they dropped dead. As for Cape, it dissolved North American Asbestos Corporation in 1978 in order to shield itself from tort liability in the United States. Cape, a British firm, has since refused to appear in American courts, taking the position that default judgments obtained in the United States are unenforceable in England. By the way, by 1960 Cape was well aware of dozens of cases of mesothelioma resulting from exposure to asbestos dust in the vicinity of its mines in South Africa, including a social worker, a housewife, and an accountant, none of whom handled asbestos but nonetheless were exposed to the dust.

While Johns Manville and Cape were busy figuring out how to avoid responsibility for their morally reprehensible actions, my client Paul, who left the factory in 1966 to go back to school, was beginning his career as an artist. Eventually, he received a college degree in Fine Arts. In the spring of 1999, Paul began to experience symptoms of chest pain, severe shortness of breath, and fatigue. In late 2000, his doctors diagnosed mesothelioma. Paul underwent chemotherapy, was hospitalized on numerous occasions, and died of his condition in October 2001. When Johns Manville went into bankruptcy, the company’s assets were greater than its debts. It has continued to this day to operate at a profit. Of the two other companies that supplied asbestos to the factory where Paul worked in Niagara County, Carey Canada filed bankruptcy in 1990, ten years before the current wave of new lawsuits for asbestos-related personal injuries criticized by the media. The fourth company is headquartered in Quebec where it maintains that the judgments of American courts are unenforceable.

Let’s not shed any tears for the asbestos industry. The asbestos industry is not the victim. It is the killer.