Bill Before Legislature Would Further Harm State’s Asbestos Victims

Washington, D.C. — While the national mortality rate for asbestos disease is 4.9 deaths annually per 100,000 residents, in Anderson County, the rate more than doubles to 11.1 deaths per 100,000, according to a new report by Environmental Working Group Action Fund.

The annual rate in the city of Knoxville is the same as the state average of 4.2, however, like Anderson County, several other neighboring counties – Roane County, Loudon County and Blount County – have much higher rates than both the state and nationwide averages, jumping to 10.6, 9.5 and 9.2 deaths per 100,000, respectively.

All told, between 1999 and 2013, roughly 840 residents from the nine counties that make up the Knoxville Metropolitan Area have succumbed at the hands of asbestos-caused diseases, including at least 260 from Knoxville alone.

Hamilton County, home to Chattanooga, has seen more than 300 of its residents die from diseases caused by asbestos exposure during the same period, while Davidson County (Nashville) and Shelby County (Memphis) have lost 280 and 254 people respectively.

EWG Action Fund researchers estimate nearly 4,000 residents of the Volunteer State died in the 15-year period from diseases caused from asbestos exposure.

The analysis combines federal records of deaths from mesothelioma and asbestosis from the U.S. Centers for Disease Control and Prevention (CDC) with a formula developed by international cancer researchers with the World Health Organization for estimating lung cancer deaths from asbestos.

Asbestos use in the United States has declined significantly since the late 1970s after the serious health risks associated with the fiber became clear. However, asbestos was once widely used in a number of industries and professions that have substantial footprints Tennessee, including aerospace and defense, automobile manufacturing, construction, pulp and paper production and electronics.

“While asbestos is no longer used at the levels it once was, it is still legal and remains a threat to many in the state,” said Alex Formuzis, VP for strategic campaigns at EWG Action Fund. “Even the smallest amounts of asbestos can cause deadly diseases later in life.”

Unfortunately for those in Tennessee who are suffering from asbestos-caused diseases or will face diseases and cancers, including mesothelioma and asbestosis, in the future, bills pending action in the state legislature – S.B. 2062 in the Senate and H.B. 2234 in the House – would erect a series of roadblocks that could delay or deny compensation to those who are sick and dying.

Specifically, both bills would:

• Force plaintiffs to disclose confidential settlement negotiations;
• Give asbestos defendant companies the authority to delay litigation, which would see many victims succumb to their illnesses before their day in court; and
• Erect serious hurdles to the courthouse by drastically altering pleading standards in litigation, letting asbestos corporations responsible for poisoning plaintiffs off the hook.

Most significantly, this legislation would require asbestos plaintiffs to produce supporting documents and sworn statements establishing their claims at the time they file their complaint, effectively requiring them to prove their case before trial. While most courts require only a short, plain statement alleging the grounds for relief, this legislation would implement significant and burdensome pleading standards specifically for asbestos cases.   In particular, the legislation would require plaintiffs to file the following at the initiation of the lawsuit:

• Name, address, date of birth, social security number, marital status, occupation and employer. This requirement goes far above and beyond traditional pleading practices.
• “Specific location and manner of each alleged exposure . . .;beginning and ending dates of each alleged exposure; and the identity of the manufacturer of the specific asbestos product for each exposure[.]” This information must be corroborated with supporting documentation. Unfortunately, many plaintiffs are unaware of the exact nature of their exposure and rely heavily on the discovery process to build their case. The legislation would prohibit these victims from seeking compensation for their injuries.
• Radiological and pathological evidence establishing the plaintiff’s illness.
• A detailed “medical, social, and smoking history.”
• Evidence of 15-year latency period between the plaintiff’s first asbestos exposure and symptoms. We now know that some victims succumb to asbestos-triggered diseases within only a few years of exposure. This provision would bar them from recovery.
• Sworn statement from the plaintiff’s treating physician including a “detailed narrative medical report and diagnosis” as well as an assertion that the asbestos exposure was a “substantial factor” in the plaintiff’s illness. No treating physician wants to be dragged into litigation; this legislation would force victims to choose between keeping their doctor and getting compensation for their families.

The proposed legislation would then allow the defendant an opportunity to challenge the sufficiency of this evidence before trial and require the court to dismiss the action if found insufficient. If the case survives these initial hurdles, the plaintiff then faces an insurmountable burden of proof at trial under this legislation, and must quantify the dose—the number of invisible asbestos fibers—to which the plaintiff was exposed for each defendant’s product and prove that a particular exposure was a “substantial factor in causing the plaintiff’s disease.”

The federal Occupational Safety and Health Administration (OSHA) warns that there is no “safe” level of asbestos exposure, adding that, “[a]sbestos exposures as short in duration as a few days have caused mesothelioma in humans.”

The Civil Justice Subcommittee in the House is expected to take action to advance H.B. 2234 on Wednesday, February 17.

“This is a cynical attempt by the asbestos industry to meddle with the lives of its victims in Tennessee by running out the clock so they die before their cases make it to trial,” Formuzis said.

Asbestos can linger in the body for decades before illness strikes. Patients who develop asbestos-related diseases today were often exposed a generation ago, when the asbestos industry was fully aware of the dangers but failed to warn and protect industrial workers and others handling the deadly mineral.

Asbestos-related diseases disproportionately impact one group of Americans—our veterans. Members of the military, especially in the Navy, were heavily exposed to asbestos for decades through its use in ships and other military equipment and buildings. While veterans make up about 8 percent of the U.S. population, they account for roughly 30 percent of all deaths from mesothelioma.

Mesothelioma, a type of cancer that is only caused by asbestos, attacks the lining that surrounds the lungs, stomach and other organs. Those diagnosed with the disease usually die within months.

The U.S. Department of Veterans Affairs estimates between 350,000 and 550,000 veterans live in Tennessee.

Legislation similar to the bill in Tennessee is currently moving through the U.S. Congress. The so-called FACT Act – H.R. 526 in the House, which passed in January, and S. 357 that awaits consideration in the Senate – is strongly opposed by 17 national veterans organizations.

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 EWG Action Fund is a 501(c)(4) organization that is a separate sister organization of the Environmental Working Group. The mission of EWG Action Fund is to protect health and the environment by educating the public and lobbying on a wide range of environmental issues. Donations to EWG Action Fund are not tax-deductible.