Cohen, Placitella and Roth

Date:

Duration: 26:18:00

The history of asbestos and asbestos exposure is depicted in this video.

Video Transcript

[music]

Narrator: The story began in 1898 in Great Britain, where the chief inspector of the factories classified asbestos as one of the four most hazardous dusts known to man. Shortly thereafter, the insurance industry began to track the incidence of death and disease for people working in asbestos factories. By 1918 an insurance statistician in a widely circulated publication, notes the unusually early deaths of asbestos workers and reveals that it is common practice for insurers to deny coverage for workers because of the assumed health and injurious condition in the asbestos industry. In 1924 a young woman, age 33, named Nelly Kershaw fights for her life. Nelly has worked in the Turner Brothers Asbestos Factory in Great Britain for more than 20 years. She visits her doctor, unable to eat and unable to work. Nelly Kershaw writes to her employer, the Turner Brothers Asbestos Company.

Nelly Kershaw: What are you going to do about my case? I have been home nine weeks now and not received a penny. I need nourishment and the money.

Narrator: Shortly thereafter, Nelly Kershaw dies with the dubious distinction of being the first person to make a claim for compensation as a result of asbestos poisoning. Instead of compensating Nelly and making her final days easier, Turner Brothers urges its insurance carrier to fight Nelly's claim to the death.

Turner Brothers Spokesman: It will be exceedingly dangerous to accept any liability whatsoever in this case. We ought to do all in our power to repudiate the claim.

Narrator: Turner Brothers tries to blame her death on tuberculosis. The coroner, however, holds a full inquest with a jury to determine the cause of death. The coroner jury disagrees with Turner Brothers and finds that Nelly's death was caused by asbestos. This case is the first in history in which a jury rejects an asbestos company's position and decides that the underlying claim has merit.

News of Nelly Kershaws death travels fast in the asbestos industry. Turner Brothers begins corresponding with the other U.S. asbestos giant, Johns Manville, about the problem of workers dying from asbestos. Johns Manville has similar problems; many of its workers keep getting sick. In 1924, the Massachusetts Industrial Accident Board upholds the first workers compensation disability finding for asbestos.

In 1929, Samuel Greenstone, an attorney in Newark New Jersey, files the first lawsuit against Johns Manville on behalf of Anna Perskowsky in Newark federal court. Greenstone files another 10 cases shortly thereafter. As the number of cases of asbestosis diagnosed in America increases, the industry becomes alarmed. Instead of acknowledging its responsibility, members of the American Asbestos Industry decide to put into place a plan to minimize their financial exposure and keep the truth from the workers and the American public. Johns Manville meets with the Raybestos Manhattan Asbestos Company in nearby Passaic New Jersey. Together, they agree upon a code of silence. The conspiracy is memorialized in a letter from the President of Raybestos Manhattan to Vandever Brown, the attorney for Johns Manville stating:

President of Raybestos Manhattan: I think, the less said about asbestos, the better off we are.

Narrator: the conspirators then prevail upon the asbestos industry trade journal, Asbestos, to publish nothing about workers getting sick from asbestos. This strategy of silence is laid out in a letter to the president of Raybestos Manhattan.

Asbestos letter from the trade journal: You have requested that for certain obvious reasons we publish nothing, and naturally your wishes have been respected.

Narrator: In June 1933, the Board of Directors of Johns Manville Corporation met in the Manville boardroom in New York City to discuss settling the 11 lawsuits filed by Greenstone on behalf of workers with asbestosis. They decide to settle the cases with two provisions: That the settlement remains a secret and that Greenstone promises to go away quietly and institute no further litigation against Johns Manville. This secret deal is reflected in the private minutes of the Manville board meeting.

Minutes of the Manville board meeting: For general council had recommended that we settle for approximately $30,000 provided written assurances were obtained from the attorney for the various plaintiffs that he would not directly or indirectly participate in the bringing of new actions against the corporation.

Narrator: The asbestos industry becomes increasingly concerned about cases like those Manville secretly settled. As a result, the industry calls a meeting to discuss, among other things, the problem of lawsuits that will continue to be filed against industry members for asbestos related diseases. The captains of industry meet at the University Club in Pittsburgh Pennsylvania. The plan arrived at includes the establishment of an industry organization later known as the Air Hygiene Foundation. Publicly, the stated purpose of the Air Hygiene Foundation is to promote worker health and safety. The private agenda of the organizers, however, includes lobbying for legislation to take away workers rights to a trial by jury and to assist in the defense of asbestos related lawsuits and claims. Unfortunately, the powerful industry is successful in its national lobbying campaign to enact laws that force all workers asbestos claims to be pursued through workers compensation eliminating the ability of workers to bring asbestos lawsuits before a jury. This provides little justice and inadequate compensation to those wrongfully injured. For the next 30 plus years, the asbestos industry, believing it can no longer be sued except in workers compensation court, acts with impunity concerning the health and safety of the American working public. Medical studies sponsored by many asbestos companies are doctored. Findings about the relationship between asbestos and cancer are edited and removed from published reports.

Man 1: A meeting of the representatives of underwriting companies was held in New York. It was the feeling of this group that all references to cancer and tumors should be omitted.

Narrator: The fact that workers will get sick becomes a given.

Man1: we know that you will never lose sight of the fact that perhaps the greater hazard in your plant is with men handling asbestos. Because just as certain as death and taxes, is the fact that if you inhale asbestos dust, you will get asbestos.

Narrator: Instead of putting the health of their workers first, some companies actually estimate whether it is cheaper to pay workers compensation claims or institute the controls and steps to insure workers do not get sick. Workers Compensation costs are forecast and simply factored into the price of the products. No longer worried about explaining to a jury why workers are not protected, certain industry members treat these human beings as expendable commodities.

At a meeting between the officials of the Unarco Asbestos Company from Patterson New Jersey and Johns Manville, Manville's attorney callously brags about its policy of silence and death.

Manville's Attorney: Unarco managers are a bunch of fools for notifying employees who have asbestos.

Unarco Official: Mr. Brown, do you mean to tell me that you would let them work until they drop dead?

Manville's Attorney: We saved a lot of money that way.

Narrator: In 1958, a brave man by the name of Frederick LaGrande files the first modern day product liability case against Johns Manville. This is the case that could change history. If won, it will serve as a lesson that workers are important people who need to be protected. Frederick LaGrande worked as an insulator, for a company known as H.W. Porter, installing asbestos insulation. Unlike other workers before him, Frederick LaGrande does not sue his employer for workers compensation benefits. But rather, for the first time, sues Johns Manville claiming that they sold the products that he worked with and should be responsible for the serious lung injury that he sustained. The cards are stacked against Mr. LaGrande. He's represented by a solo practitioner, William Branch, against the mighty arm of Johns Manville attorneys. During the pretrial process, when Mr. La Grande asks what Johns Manville knew about the dangers of its products, he is lied to and stonewalled. But La Grande finally gets his day in court. La Grande is physically assisted to the witness stand from his wheelchair, with a respirator to help him breathe.

Johns Manville's Corporate Executives, observe quietly from the back of the courtroom. Casting aside the truth, Johns Manville defends itself, claiming that it was unaware that the asbestos products it manufactured and that were used by Frederick La Grande could hurt him. However as the trial progresses, Johns Manville's lack of knowledge defense is being exposed as a lie.

First Mr. La Grande testifies that numerous co-workers that use Mansfield's products are also sick. Negating Manville's position that La Grande is somehow an anomaly. Then one of Manville's star witnesses unexpectedly refuses to go along with Manville's lies.

The original plan was to have the insurance industry executive take the stand and testify that the company that insures Manville was also unaware that people like La Grande could get sick from working with asbestos. However, when the Manville attorney meets with the witness to prepare his testimony for trial, the insurance executive indicates that he cannot testify to what the lawyer's want, as it would be a lie for him to do so.

Frederick LaGrande is a convincing witness and a very sympathetic plaintiff. Despite being outgunned and outmanned, it looks like Mr. La Grande might just win his case and that the truth will be exposed with a jury verdict in his favor. If La Grande wins and the verdict becomes known, it could be used as proof in all future cases.

Soon after La Grande testifies, an emergency meeting is held at Johns Manville Headquarters. At the meeting Johns Manville decides to settle Mr. La Grande's case rather than risk a verdict and expose the truth.

Man 2: We also considered very seriously the effect that any settlement would have upon the industry and what claims if any might result from our action. It should be remembered in this regard that if we had a very large judgment against us, which would fill the newspapers, our situation would be much worse than it is today, with the case settled. This plaintiff arouses a great deal of sympathy and is perhaps the worst case we should try.

Narrator: Once again there are two conditions on the settlement. It must remain secret, and when the settlement is put on record it will be for something other than asbestos. Instead of alerting the rest of the world and stopping the future cascade of unnecessary death and illness, the secret settlement is buried along with Mr. La Grande.

In the early 1960s a young physician named Irving Selikoff, makes it one of his life works to study the Asbestos Disease that he has been observing in workers. Dr. Selikoff first becomes interested in Asbestosis Disease in 1953 when he examines UNARCO Asbestos workers in his clinic in Patterson, New Jersey.

Selikoff believes that it is his mission to publicize the fact that thousands of workers are getting sick and will die from their exposure to asbestos. Publicly the asbestos industry pretends to cooperate with Dr. Selikoff; privately the monster public relations machine continues to turn for the industry and the companies internally even mock the workers.

Man 3: My answer to the asbestos problem is, if you've enjoyed a good life while working with asbestos products, why not die from it? There's got to be some cause. Sheet metal workers constructed new air ducts high over the asbestos area, no masks. These fellows are getting plenty of asbestos for their lungs to chew on.

Narrator: Throughout the 1960s a few other cases are quietly settled as the asbestos industry rejoices in the public's ignorance. The insurance industry, working hand and hand with the manufacturers, is clearly aware of the public health time bomb that is being created. Ten years after secretly settling Mr. La Grande's lawsuit, Johns Manville and its insurance carrier, settle the first environmental asbestos case, the Fetchko case, very quietly. The settlement is memorialized in a 1969 memo entitled Asbestos Dust Hazards.

Man 4: In the Fetchko case it is felt that we have no chance of winning when it is litigated, since it is evident that Johns Manville had contaminated both air and water, in the past. In fact, the Johns Manville attorney stated confidentially, Johns Manville had been contaminating the hell out of both air and water for quite some time. It is apparent that Johns Manville's concerned and frightened over the implications.

Narrator: Industry members know that there will be future environmental claims. In the same memo insurance executive Harry Rappe predicts:

"Control of asbestos in the community air is impossible when you consider the contribution from brake linings, abrasion of piping, house siding, and other materials widely handled by the general public. It is certain growth exposures to asbestos have existed in the past and will continue in the future, even if greatly minimized."

"With the publicity presently given this problem and with Federal involvement in pollution problems, you can find yourselves overwhelmed with claims for the variety of disease attributable to asbestos dust."

Other members of the industry also recognized the tremendous public health hazard that has been created.

Man 5: The general products at risk are the products of asbestos that are not controlled or eliminated. Solution would be, replace all asbestos products to avoid future exposures, but would not reduce our present situation.

Narrator: In October of the same year, Ward Stevenson files a lawsuit on behalf of Clarence Borel. Borel is an insulator with asbestosis and mesothelioma. Unbeknownst to everyone at the time, this would become one of the most product liability cases in American history.

In 1973 the asbestos industry commissioned a survey to determine the level of the public's awareness concerning the dangers of asbestos. Matthew Swetonic, the director of the asbestos industry's leading lobbying group, the Asbestos Information Association, reports the results of this survey in a meeting in Washington, DC. He tells the crowd that he has good news and bad news. First the bad news, Dr. Selikoff's estimate concerning how many people will die from asbestos is far too low.

Matthew Swetonic: Our prediction is that approximately 25,000 past and present employees in the asbestos have died or will eventually die, of asbestos related disease. And the good news is, that despite all the negative articles on asbestos health, that have appeared in the press over the past half dozen years, very few people have been paying attention. These results should be reassuring to those industry customers who fear that the general public will stop buying their product because they contain asbestos.

Narrator: Later in that same year, however the wheels start to come off for the industry. In September 1973 Clarence Borel's asbestos jury verdict is upheld by a Federal Appeals Court, with a published decision finding members of the asbestos industry responsible. The decision sends shock waves through the industry. The industry now has a choice to make. It can voluntarily, pay legitimate claims, or fight the claims filed by workers at every turn.

Industry executives meet in New York City. 'The meeting closed with a unanimous rejection of a suggestion that liability in Asbestosis cases be admitted. And the carriers agreed between themselves as to their respective losses and expenses.' Publicly, asbestos companies would continue to claim that they were unaware that people could get sick from asbestos exposure.

Internally, however, members of the industry acknowledge that such claims are likely to fail and in all likelihood, false. 'As evidence mounts, it becomes impossible to use these defenses. If producers of asbestos can be shown to have known of the dangers and failed to control it or adequately warn those exposed to asbestos.'

The asbestos industry initially predicts that a minimum of 25,000 workers will die from asbestos exposure. Estimates within the industry concerning the eventual death toll, vary. One insurance carrier estimates that as many as 65,000 Americans will die from asbestos. Another insurance company predicts that as many as 400,000 people will be sick enough to file claims for Asbestos Disease. And these estimates don't even include claims for wives, people living near factories and school children.

Eventually the American insurance association conducts its own study in 1977 to estimate how many people will die from asbestos induced cancers through the year 1995. The study includes 14 industries and WW II shipyard workers. The results are staggering.

Using a lung cancer and mesothelioma rate, 32 percent of all deaths, there would be about 154,000 cases or 6,100 per year. The latency would end in 40 years in 1980. All female workers are assumed to reach the start of latency in 1955, since the max age assumed is 50. Applying the 32 percent lung cancer and mesothelioma death rate, to the 800,000 female workers, produces 256,000 cases, or 10, 200 per year.

Fortunately for the asbestos industry most of these deaths would occur before 1980 and therefore not become lawsuits because of the statute of limitations. However, the insurers estimate that from 1977 to 1995 alone more than 54,000 workers will develop lung cancers or mesothelioma in the 14-industry survey.

The study goes on to find; 'Fifty percent of people certified as showing Asbestosis died of or with lung cancer. Therefore Asbestosis should equal twice the number of lung cancer cases.' This study does not address the likely deaths to women and children who are exposed at home. Nor does the study go beyond 1995 in its estimates.

While each year more and more workers are devastated in injury and mortality, the asbestos industry continues to fight the workers in court. At first many cases are lost. Other workers settle their cases for less than they are worth, because they are not armed with the true evidence of industry misconduct.

As time progresses, more and more evidence is exposed concerning what the industry actually knew about the dangers of asbestos and when that information first became known. As more and more workers begin to win their cases in court, new strategies emerge by industry executives, to attempt to fight off the onslaught of cases it had predicted would occur years earlier, once the truth was known.

The asbestos industry begins to argue that the claims of injury are without merit. In this regard the industry claims that the not yet disabled are not sick and therefore do not deserve compensation. In an effort to avoid paying asbestos claims, the insurance industry disclaims coverage and litigation ensues with the asbestos industry over insurance coverage for asbestos cases.

This battle takes place in a courthouse in California. All papers are filed under seal and all proceedings are held in. While the industry and insurance carriers fight the claims of workers arguing many workers are not sick and not worthy of compensation in court, the secret battle in the California court tells a different story.

Internally the companies secretly admit that the asbestos disease process begins as soon as it is inhaled. It is progressive and irreversible. Asbestos disease is very advanced by the time it is diagnosable by conventional means.

Man 6: The only conclusion that could be drawn from the medical evidence is the conclusion that is virtually uniform in the medical literature. Asbestos related injuries are the result of continuous injurious process, beginning with the first exposure and continuing through clinical manifestation.

Narrator: Although the companies continued to fight the claim of the workers, saying they are not sick and deserve no compensation, internally in papers filed under seal, the companies acknowledge that by the time asbestos is even diagnosable on x-ray, one third of the lung, is affected.

In 1981, Johns Manville is the first to implement a new strategy for avoiding claims by filing for Chapter 11 bankruptcy protection. The plan establishes a trust to pay for claims filed by people who develop diseases from asbestos exposure. The trust is segregated from the rest of the company. The company goes on doing business as usual while being shielded from all future asbestos liabilities.

But it soon becomes clear that the amount of money needed to pay the claims that was estimated in the bankruptcy process, is inadequate and that workers who though they would be compensated from the Johns Manville trust, will not be.

As part of the bankruptcy process, the trustee for the Johns Manville trust, turns over to the plaintiff's attorney all of the documents in Manville's possession. Many of these documents have never been produced and their existence denied, including records of the lawsuit filed by Mr. La Grande, more than 20 years earlier.

The attorney in charge of the Manville trust, David Austern, personally views some of the more important documents brought to his attention, and is shocked by what he learns has been covered up for decades. Mr. Austern memorializes his conclusions in a memo where he states, "The documents noted above, however, show corporate knowledge of the dangers associated with the exposure to asbestos dating back to 1934."

"In addition, the plaintiff's bar will probably take the position, not unreasonably, that the documents are evidence, of corporate conspiracy to prevent asbestos workers from learning that their exposure to asbestos could kill them. While it is not my intention to be an alarmist, I believe the documents evidence corporate irresponsibility, of a magnitude which is understated in outrageous misconduct."

"The conduct and tone of the documents demonstrate that Manville officers, directors, and employees, including some present employees, held secret information that had it been revealed, would have prevented the deaths of thousands of people."

Numerous other asbestos companies realized the success of Chapter 11 filing and do the same. Soon the new public relations tactic of the industry becomes blame asbestos victims and their lawyers for the bankruptcies, arguing that people making claims are not sick and do not deserve compensation.

They tell the world that the reason for the asbestos bankruptcies is not the decades of lies and half-truths. It's the victims who are at fault. The cry of the industry public relations machine is that Congress should bail out the asbestos industry and its insurance.

The companies argue to Congress that the American economy has been hurt so much that the companies are not able to operate. Yet statements made by the companies to their investors, tell a different story. Babcock & Wilcox Company, who also files for bankruptcy, tells its shareholders the same story. 'BW's core business continues to be strong. BW filed for protection under Chapter 11 because it offers the only viable legal process for determining and comprehensively resolving its asbestos claims.'

'BW's core operating business, continues to be solvent and strong business with a backlog totaling over one billion. There should be little impact on day-to-day operations. It's business as usual.'

And in this "business as usual," thousands continue to die as a result of corporate negligence and denial. The battle that began with Nelly Kershaw and waged by Frederick La Grande against lies, half-truths and cover-ups, goes on. Just as the political and litigation climate of the early part of the 20th century was a storm of deceit, our current climate, puts us in great peril.

Some of our legislators apparently tied to the industry, are trying to enact various laws that would damage the Nelly Kershaws of our generation, while protecting the pockets of corporate investors. We must act now to avoid creating a second story of deceit, design and temerity.