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Saturday, August 14, 2010

Asbestos and the Law

Asbestos and the Law
In the late 1800s and early 1900s, asbestos was considered an ideal material for use in the construction industry. It was known to be an excellent fire retardant, to have high electrical resistance, and was inexpensive and easy to use.

The problem with asbestos arises when the fibers become airborne and are inhaled. Because of the size of the fibers, the lungs cannot expel them. They are also sharp and penetrate tissues.

Health problems attributed to asbestos include :

1. Asbestosis - A lung disease first found in textile workers, asbestosis is a scarring of the lung tissue from an acid produced by the body's attempt to dissolve the fibers. The scarring may eventually become so severe that the lungs can no longer function. The latency period (meaning the time it takes for the disease to develop) is often 10–20 years.
2. Mesothelioma - A cancer of the mesothelial lining of the lungs and the chest cavity, the peritoneum (abdominal cavity) or the pericardium (a sac surrounding the heart). Unlike lung cancer, mesothelioma has no association with smoking. The only established causal factor is exposure to asbestos or similar fibers. The latency period for mesothelioma may be 20–50 years. The prognosis for mesothelioma is grim, with most patients dying within 12 months of diagnosis.
3. Cancer - Cancer of the lung, gastrointestinal tract, kidney and larynx have been linked to asbestos. The latency period for cancer is often 15–30 years.
4. Diffuse pleural thickening

Considerable international controversy exists regarding the perceived rights and wrongs associated with litigation on compensation claims related to asbestos exposure and alleged subsequent medical consequences. Some measure of the vast range of views expressed in legal and political circles can perhaps be exemplified by the two quotes below, the first from Prof. Lester Brickman, an American legal ethicist writing in the Pepperdine Law Review, and second, Michael Wills, a British Member of Parliament, speaking in the House of Commons on July 13. 2006:

"A review of the scholarly literature indicates a substantial degree of indifference to the causes of this civil justice system failure. Many of the published articles on asbestos litigation focus on transactional costs and ways in which the flow of money from defendants to plaintiffs and their lawyers can be expeditiously and efficiently prioritized and routed. The failure to acknowledge, let alone analyze, the overriding reality of specious claiming and meritless claims demonstrates a disconnect between the scholarship and the reality of the litigation that is nearly as wide as the disconnect between rates of disease claiming and actual disease manifestation".

"Many of those who I see in my surgeries have worked in a number of workplaces and they could have been exposed to asbestos in each of them, but medical science is such that no one can identify which of them it is. As a result, there has been a long and complex history of legal discussion on how to apportion liability. The lawyers and the judiciary have wrestled, rightly and valiantly, with complex and difficult law, but it has created despair for the families whom we represent. Many of my constituents’ families have been riven by the consequences of litigation in trying to get some compensation for a disease that has been contracted through no fault of theirs. That is cruel and unacceptable."

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