Organizing for Our Lives
— Barbara Zeluck
LAST JUNE BRENDA, a woman in Ohio, wrote to the White Lung Asbestos Information Center in New York:
"I'm inquiring about asbestos and their victims. I've done construction work for 16 years, and I also worked in asbestos removal in the last few years.
"Well last week I found out I have lung & brain cancer. I was trying to find out whether it was asbestos or not but my doctor can't give me a answer.
"Who do I see or talk with about this sort of thing? I would appreciate it if I could get some help on this matter."
Brenda's cancer may be asbestos-caused or not, but like most asbestos victims, Brenda never thought it could happen to her. She's isolated and has no nearby source of information or organizational support. Her first concern is medical care, not action to insure every worker's right to a safe and healthy workplace (as provided by the unenforced 1970 Occupational Safety and Health Act—OSHA).
How Large Is the Problem?
The first wave of asbestos disease hit the men who mined it out of the ground and the men and women who wove it into cloth or pounded it into dust to make insulating materials—and the women and children they hugged when they returned home still in their work clothes.
The second wave hit those who worked in World War 11 shipyards.
In 1981 respected researcher Dr. William Nicholson of Mt Sinai Medical School estimated that between 1940-79 twenty-seven and a half million were occupationally exposed—without counting families, workplace neighborhoods or those who sailed the navy's ships.
From among those occupationally exposed he calculated that in each of the next twenty years 8,000-10,000 asbestos cancers would develop. By the year 2012 two to three million people would have been diagnosed with an asbestos-caused disease. As a result, 250,000 "excess deaths" (above the number normally expected) will have occurred.
The third wave is being caused by the asbestos In place"—already installed in the schools, hospitals, office buildings and homes.
Today it's no longer just people who install or remove asbestos who are being affected. Large numbers of firefighters, plumbers, powerhouse and many other workers, even teachers and office workers, exposed to "in place" asbestos have been found to be suffering from asbestos-caused lung abnormalities.
According to the spokeswoman for the California-based Asbestos Victims of America, five more cases appear every week: "I'm getting 40- and 50-year old people calling me with mesothelioma, having no idea where they got it It's not an occupational exposure; it's got to be from buildings or schools."
In 1988 the NYC Department of Environmental Protection, completing a two-year study, found that 68% of New York City buildings (544,000 out of approximately 800,000) contain asbestos, much of it in "friable" condition (crumbling), likely to release its deadly microscopic fibers into the air.
Dr. Philip Landrigan, chair of Mt. Sinai's Environmental and Occupational Medicine Department, wrote to the New York Times:
“All of the many forms of asbestos are hazardous and can cause cancer if inhaled .... No safe threshold of exposure has been established. Children are at particular risk because, pound for pound, they breathe more air than adults, and have more years of life ahead of them in which to develop disease.”
Mesothelioma, asbestosis, lung cancer and pleural plaques are the asbestos-caused diseases, all of which almost always take ten to fifty years to develop. Unlike the other three diseases, mesothelioma—the deadliest—can occur after very minimal exposure. Like asbestosis, it is caused only by asbestos.
If the mineral is left undisturbed in the ground, it disturbs no one. The first asbestos-caused deaths were observed in ancient Rome's slave society. In modern industrial society an early asbestos-caused death was that of H.W. Johns, a founder of the giant Johns-Manville Corporation that, with the other leading asbestos companies—from the late '20s into the '60s—conspired to prevent publication of the hundreds of studies showing that exposure to asbestos resulted in the development of pulmonary disease.
The company correspondence, discovered years later, revealed that the companies agreed between themselves not to inform the affected workers—on the grounds that if they were to find out and quit before becoming totally disabled, the company would lose the "benefit of their many years of experience."
As far back as the 1920s a budding movement, recognizing occupational safety and health to be not just a technical but a class question, believed it "must be dealt with by the workers themselves." Activists hoped that the cost of insurance for worker injury would "stimulate business to improve safety in the shop."
Unless workers are organized and vigilant at the workplace, it's often too late to deal effectively with what is a socially-created problem. Asbestos victims, sick and, with their families, under financial stress, or grieving widows and children, often unaware of their rights to death benefits, are unprepared to deal with legal complexities and don't think in terms of longer-haul social goals.
The Courtroom As Battleground
Today's movement looks to legislation and the courts. The aim is still to make the cost of causing disease high enough to convince asbestos (and other toxic-producing) companies that recklessly endangering the lives of their employees, members of communities surrounding the plants, and consumers doesn't pay. Meanwhile, corporations hire a battery of lawyers to find ways to evade their responsibility. They do this in a number of ways.
• Beating the rap in cases of criminal prosecution:
After all, as Sierra magazine pointed out: "Murder is the name we reserve for death when it is intentional and immediate, when cause and effect are as close as pulling a trigger and watching the body crumple. When the deed is planned in advance we call it 'premeditated' and consider it especially heinous. Theoretically the length of time between cause and effect is immaterial; there is no statute of limitations for murder." (October-November 1991)
Not so long ago there seemed to be a slight chance that government agencies might prosecute. Two attempts had some chance of success: In 1985 Chicago district attorneys won a murder conviction against three executives for a worker's cyanide poisoning death; a year later a Brooklyn court convicted two thermometer plant executives and the foreman of assault by mercury poisoning.
In the end the culprits were let go with a few weekends in jail. The hope that, by upholding the convictions, higher courts would encourage more prosecutors to bring homicide actions when employees die on the job was dashed. (If you're not already convinced of the class bias of the courts, read on.)
• Getting out of paying compensation:
New actors on the scene are asbestos plaintiff lawyers. Usually they take a case on "contingency." They are paid 33-40% of what the client is awarded only if—and after—winning a case. Without the contingency fee system most working people couldn't have access to the lawyers and the court.
After years of research and "discovery," in 1973 the personal injury lawyers began winning compensatory damages. And punitive damages. In 1981 and the first half of 1982 the punitive damages in just ten personal injury lawsuits averaged $600,000 a case. Juries found the companies' denying the many years they'd known of asbestos' health effects and their "failure to warn" the workers to be "outrageous and wilful misconduct."
Since punitive damages can't be insured against, or deducted from income taxes, for a brief moment it seemed a way had been found to force the companies to shift almost adequate resources to the thousands of asbestos victims they'd created—and to their survivors—who began to file claims.
Enter Chapter 11
Starting with the Manville case, the bankruptcy judge showed more concern with protecting the company's profitability than with alleviating the asbestos victim's loss of livelihood, medical costs, and pain and suffering. Judge Burton Lifland welcomed a proposal to divide Manville into two parts: anew, profitable company with absolutely no liability to the asbestos victims and a "Trust" which —in order to emerge from bankruptcy—Manville funded, almost entirely, with insurance money and tax deductions. The insurance companies got off paying a fraction of their liabilities.
Judge Lifland pressured the victims' lawyers into going along with the plan to protect the greater part of Manville's assets from victim claims by threatening to end the contingency fee system (which is their livelihood). He also placed some of the victims' lawyers on the boards of both the new company and the Trust fund. Thus they felt they'd be in a powerful place—administering the funds. At the same time he was browbeating the victims' lawyers, Judge Lifland never questioned corporation lawyer fees. He gave twice as much as was asked to the lawyer who hatched the "plan" to divide Manville.
By arbitrarily limiting to 100,000 the number of claims to be expected over the next twenty years—disregarding Dr. Nicholson's careful study—Judge Lifland rationalized funding the Trust with only $2.5 billion. This was to cover compensation due to past, present and future victims. Hardly surprisingly, 155,000 claimants filed by June 1990. The Trust ran out of cash on hand.
Since the Trust's emergence from bankruptcy, Judge Jack Weinstein, who now has jurisdiction over Manville, said the Trust had been overly generous.
Rejecting this new opportunity to demand more money from Manville and the insurance companies, the judge proposed cutting cancer-victim compensation to approximately 20% of historic averages. (Judge Weinstein put into question whether non-malignant disease victims will receive anything at all.) The appeals court has just ratified his proposal. But the victims are still waiting.
Asbestos victims are termed "unsecured creditors," meaning they have no legal document to prove that the companies owe them anything for their loss of health, earning power, life. When a company allegedly lacks resources to pay all of its bills, "unsecured creditors" come at the end of the line. But to protect capitalist assets, Judge Weinstein (who also clobbered Agent Orange victims) went even further. He came up with the innovative idea of "limited-fund class actions." This means that a court would approve a company's request to sequester its profits only from its asbestos victims—but would go on paying all other creditors.
When the appeals court vetoed this, the company in question became the sixteenth asbestos company to follow Man-vile into bankruptcy.
On another front, Congress and state legislatures keep threatening to abolish the contingency fee system. Some legislators push to ban personal injury lawsuits outright, substituting instead a national workers' compensation insurance system whose costs can be calculated and paid for by product prices. This is what happened to Black Lung victims, with dire results. Abolishing the right to sue would reinforce the cutbacks that states are already introducing into workers compensation systems.
Further Legislative Threats
It didn't take long for politicians and judges—never concerned with trying to bar further asbestos exposure—to start "blaming the victim" for "clogging the courts." In fact the reason trials drag on is that the companies, under cover of demanding "due process," insist on repeating the identical evidence in trial after trial. Victims' right to timely compensation is forgotten.
Rarely has a judge ruled, as did occur in a Texas court, that "The question of whether asbestos-containing insulation products are defective and unreasonably dangerous, the adequacy of warnings... should not be relitigated again." Rarely have steps been taken to expedite matters as in a trial of 8,555 cases in Baltimore where a full trial was conducted to establish the asbestos companies' guilt for six claims (the jury took only eight hours to decide), with subsequent juries facing simpler questions: whether victims have/had an asbestos-caused disease and what will be the size of the award.
State workers' compensation systems have also been cutting awards, accepting employer claims of "worker fraud" and "contributory negligence." In addition, the whole system is under attack as costing too much.
New York's governor and state legislature have just imposed a "pilot program" of managed competition on workers' compensation medical care-15% of the workforce (1.2 million workers)—which heretofore had not been limited. Also in this case employer-picked doctors (who'll be shielded from having to face the victims lawyers' questioning in open hearings) will gain exclusive power to determine the diseased or injured worker's level of wage replacement, if any.
Did You File?
As the compensation that asbestos victims can win for the real wrongs done them becomes slimmer and slimmer, new forms of attack are emerging. Some Against the Current supporters have phoned me to report seeing ads on TV (in the midst of football games), or in the sport sections of newspapers, advising future victims (anyone exposed to on-the-job asbestos and their family members who had not filed a claim by January 15,1993) of a class action suit giving them a "great opportunity" to avoid the long delays that come with jury trials and company appeals.
In the ad (or in the packet obtainable by calling an 800 number), while giving an argument "pro" this arrangement, what they don't explain is the overwhelming number of "con" reasons. What's this all about, anyway?
On January 15, 1993 two prominent victim law firms filed in Judge Weiner's court a class action complaint for nine future victims and "for all other similarly situated" (anyone already exposed or not who had not yet started an asbestos personal injury lawsuit) against the Center for Claims Resolution (CCR) and its twenty financially very solvent member companies. They demanded a jury trial. The defendants denied everything and filed against eighty-seven insurance companies, demanding that they pay all liability costs.
The two victim law firms, the twenty asbestos companies and their insurers asked Judge Charles Weiner in federal district court in Philadelphia to impose this settlement, on which they'd already agreed ("collusively," say other lawyers) on the whole class of future victims. These parties, who usually represent two different sides, are asking that the judge impose a ten-year agreement on anyone who may become a future victim—whether or not they now know of their exposure, or have been exposed, or are sick, or even born yet!
Anxious to get all but the "serious cases" out of the court system (allegedly "necessary" in order to have something to give the really sick at the same time as protecting the asbestos companies) Supreme Court Chief Justice Rehnquist and the "Judicial Panel on Multi-District Legislation" in 1991 assigned jurisdiction over all 26,639 pending federal asbestos personal injury cases to Judge Weiner. They hoped to find a formula to dispose of the federal, and then state, cases quickly. None of the cases have gone to trial. Judge Weiner is simply sitting on them.
Asbestos companies aren't paying a penny for "wilfully, knowingly, and fraudulently causing asbestos-containing products to be placed in the stream of … commerce with the result that all Plaintiffs ... were exposed ...." as the original complaint in this case read.
February 22, 1994 is the date on which Judge Weiner (and/or his assistant, Judge Lowell Reed) have scheduled a "fairness" hearing to hear arguments on the terms of this agreement The terms include:
(1) The agreement sets a monetary compensation range even lower than the courts are allowing "bankrupt" Manville.
(2) The medical and exposure criteria required to qualify for any award are so strict that it's estimated they will eliminate 40% of those victims a court trial would compensate. The agreement excludes "non-impaired" people whose lungs are scarred with pleural plaques, whose asbestos is is not completely debilitating, even some with cancer.
(3) The defendant companies will be the judges of whether or not they injured the claimants. Future victims assigned to this system will forever forfeit their rights to have their claims against these twenty companies heard by a jury or judge, if Judge Weiner so decides. He also has the power to extend the ruling to other companies.
(4) No matter how many workers sicken or die over the ten-year term of the agreement, only a total of 100,000 awards is allowed.
(5) Punitive damages are eliminated.
(6) Each company will be liable only for its individual share, not for the share of any other CCR company that defaults—as until now has been the customaiy practice under "Joint and several Liability." Thus still lower values may be put on the taking of human lives.
In return for this "futures" deal, the two law firms obtained CCR agreement to settle all their pending cases, with materially higher awards than those for future victims, with compensation for people just as "unimpaired" as "futures" who will be excluded. The firms will get their 33% cut.
The companies will gain "certainty about their asbestos liability' which will be lowered considerably. The power of other plaintiff lawyers to bargain for their clients will shrink Downward pressure on compensation to asbestos victims from any source will increase. All other claims for product liability and toxic torts will be jeopardized.
Unfortunately, the AFL-CIO has signed on to this deal as a co-sponsor, presumably in return for a little publicity.
OSHA was won two decades ago by the miners' Black Lung movement Without accompanying and on-going shopfloor organization, protection of workers health hasn't been enforced. Yet workers' fears for their lives and health and citizen concern for the environment—not subject to employer blackmail—seem to turn into action only when catastrophe strikes.
Congress passed the Asbestos Hazard Emergency Response Act (AHERA) in 1986. AHERA requires that every public and private elementary and secondary school in the United States be inspected to find if asbestos is present and that a plan appropriate to the condition of any existing "in place" asbestos be drawn up. Only asbestos that can be easily crumbled and consequently breathed must be removed, but it all needs to be inspected regularly.
How ineffectively enforced that legislation has been was dramatically revealed in New York City when the news spilled (reportedly via a parent, not a "responsible" official) that much of the asbestos thought to have been removed from NYC's 1,069 schools, at a cost of $200-$300 million, remained—in some schools "in such quantities that it poses an imminent hazard to health."
"A leaky roof at a decrepit, 95-yearold public school in Chinatown ... led to the discovery that years and millions of dollars had been wasted on negligent or fraudulent asbestos inspections...." (New York Times. 8i7/93)
People have been calling the White Lung Asbestos Information Center's phone, asking: "What are employee rights?" "Can parents believe the Board of Ed when they tell us a school is safe?"
Alice Holloway, chapter chairwoman of Brooklyn's Intermediate School 320, reported "The teachers are furious." "Asbestos is virtually everywhere": five teachers died within the last year, a veteran lunchroom worker was diagnosed with mesothelioma only a week before she died, the district superintendent ordered the school opened even though the School Construction Authority forbade it "They don't give a damn about these minority youngsters."
On the question of whether or not the opening of the schools should have been delayed, some parents—with no alternate plans for child care during working time—were vociferously opposed. Others pleaded that no school should open until all were certified safe; some, together with environmental and medical experts, seek to provide parents and teachers with technical training. They demand that the Board of Education and the School Construction Authority be accountable to parents and teachers and that the AHERA regulations be enforced.
Since these parents and experts will have to contend not only with school bureaucrats "who don't give a damn about anything except their own jobs" (according to two involved doctors), but also with the Board of Education and other political structures, the going will be tough. There are reports that the Environmental Protection Agency (EPA), as well, hasn't fulfilled its enforcement responsibility.
Parents at PS 156, an Oceanhill-Brownsville school whose students were bused from school to school while it was closed for asbestos removal, organized a sit-in after the first floor was clean, and demanded a permanent solution. They perceive that the only way to get the Board of Education's attention is to cut off state school attendance funds by keeping the children out of school.
What are the unions doing about it? The United Federation of Teachers (UFI) hired NYCOSH's industrial hygienist to monitor the damage control, but told teachers they had to go to work in spite of dust and other dangers. The New York Teacher even published a feature suggesting "the asbestos threat was overblown."
Given that a Mt Sinai study found from 26-61% of custodians (depending on length of exposure) to be suffering from asbestos-caused lung abnormalities, the custodians' union is taking steps to mobilize them in their own defense. A busload joined the January 24 protest in front of Judge Weiner's Philadelphia courthouse and promised to return for the protest scheduled for February 22.
Industry on the Offensive
The NYC crisis would not have happened if the asbestos companies had not been pushing their product Having already paid tens of millions of dollars to settle personal injury and property damage lawsuits, the industry is actively seeking to protect its assets by defeating lawsuits and asbestos control efforts.
Former asbestos manufacturers Celotex, W.R. Grace, U.S. Gypsum and others have set up a front group calling itself the "Safe Buildings Alliance" (SBA) to mount a multi-million national publicity and lobbying campaign, insinuating that (1) AHERA-type legislation requires the removal of all asbestos, (2) removing asbestos (which scatters fibers if done sloppily) is always more dangerous than leaving it in place, (3) chrysotile, the most frequently-used type of asbestos, poses no danger; (4) asbestos fiber concentrations found in buildings are no higher than in outside air; (5) the lifetime risk for children exposed to asbestos is one death in 100,000, a risk far less than most other commonly experienced environmental risks," like exposure to tobacco smoke. (Whenever you read these charges in a "news" story, recognize the source.)
SBA has convinced some juries to turn down school board suits that demand reimbursement for the cost of removing asbestos and convinced some states and localities that they shouldn't "waste" their money on asbestos inspection and control. Since statutes severely limit the time frame in which a suit can be brought once there is knowledge of the damage, the industry is permanently foisting the social costs of its private gain onto the public.
In New York City an AHERA-model "in place" bill initially had the backing of a broad alliance, including Mayors Koch and Dinkins as well as the Real Estate Board. Since, in the long run, the asbestos companies might have to ante up to pay the costs, the "Safe Buildings Alliance" set out—successfully—to convince large and small real estate owners that the cost to them would be prohibitive. So far they have blocked the City Council from passing the bill.
The SBA campaign has included financing a 1988 by-invitation-only symposium held at Harvard—whose proceedings Harvard published with a disclaimer of the views expressed. Articles reflecting these views appeared in the New England Journal of Medicine and Science magazine. This misinformation was picked up by mass circulation newspapers nationally.
In November '93 SBA financed a "workshop" on the "health risks of chrysotile asbestos," on the same dosed basis. The workshop was formally sponsored by the International Commission on Occupational Health in collaboration with the International Program on Chemical Safety (IPCS), a subdivision of the World Health Organization.
Though IPCS receives U.S. government funds, the National Institute for Occupational Safety and Health (NIOSH) recently ceased participation because "by basing its evaluation of chemicals on work prepared by scientists with close ties to industries involved in the manufacture or sale of the substances under evaluation, the IPCS greatly compromises its scientific objectivity."
This "workshop" was clearly designed—just as was the 1988 "symposium"—to support the industry line that chrysotile isn't life-threatening despite "the fact that at least 300,000
American citizens have died over the past five decades of diseases caused by asbestos ... 90% of the asbestos to which they were exposed was chrysotile," Dr. Philip Landrigan, chairman of Mt Sinai's Department of Occupational and Community Medicine protested to the U.S. State Department's Undersecretary for Environment.
Asbestos and NAFTA
Suing under the U.S.-Canada Free Trade Agreement, Canada convinced a U.S. court in 1991 to throw out the EPA's ban on using asbestos in auto parts (brakes, clutch facings and other friction products) on the grounds that less burdensome alternatives hadn't been evaluated. That ruling stands.
Canada is aggressively marketing its asbestos: half directly to Third World countries, most of the rest to Japan, which processes it into building materials and re-exports it. Financing by the World Bank makes possible the sales of asbestos cement pipe banned in the United States. The second largest exporter after Canada is the CIS, on whose asbestos sacks the only warning reads "Use no hooks."
In response to the industry's aggressive propaganda campaign, the Oil, Chemical and Atomic Workers Union (OCAW) and Mt Sinai's Department of Occupational and Community Medicine, supported by NIOSH's acting director, convened meetings in December '93 and January '94 in Washington. Attended by research scientists, unions, and environmental as well as asbestos victim groups, the meetings began formulating a counterstrategy. Funding is being sought for research (including in the former USSR) to furnish definitive proof of the deadliness of chrysotile and for both scientific and popular reporting.
Asbestos is an issue where occupational and environmental concerns converge. The chances of winning "justice" for people who have already suffered and died from exposure are getting close to invisible. To protect present and future generations will require a movement with enough energy to win and enforce stronger EPA and OSHA regulations not just in the United States but—in the era of NAFTA and GAIT—internationally.
If we think only on a local or national level, the progressive legislation will be ruled illegal as a "restraint" of trade. The self-mobilization of workers currently exposed to asbestos and to the many other poisons is key to developing the potential energy of the struggle. Pensioners, workers forced out on disability and the community as a whole will be crucial allies. Workers' lives can only be saved by the workers themselves.
March/April 1994, ATC 49