By Alex Formuzis – VP, strategic campaigns, EWG Action Fund

The asbestos industry was well aware that asbestos was deadly. Yet, the companies that mined asbestos, and those that exposed workers, military personnel and consumers to it, and their insurers kept what they knew secret for decades – endangering hundreds of thousands of Americans; many of whom perished as a result.

Even in recent years, decades after the dangers of asbestos became widely known, some companies continue trying to cover up – even destroy – evidence of their products’ devastation to workers, their families and many others who have been sickened and died from asbestos diseases.

Today, some of the most well-known companies in the country are lobbying Congress to pass legislation that would tip the scales of justice heavily in their favor when facing lawsuits from people who are sick and dying.

Modern knowledge of asbestos’ dangers is well over a century old. In 1900, a London doctor discovered asbestos fibers in the lungs of a textile factory worker who died at the age of 33 from severe pulmonary fibrosis, leading the physician to believe asbestos was the cause of death.  By 1918, the U.S. Bureau of Labor Statistics noticed a growing number of unusual deaths for those who worked with asbestos. By the early 1930s a name was given to the disease, asbestosis, for those who died after being exposed to asbestos on the job.

While banned in more than 50 other countries, asbestos remains legal and used in the U.S. and the diseases it causes kill up to 15,000 Americans each year.

Industry Was Aware of the Asbestos Danger

In 1948, an internal memo from an insulation industry scientist warned that asbestos-based insulation caused asbestosis.

I realize that our findings regarding Kaylo (brand of insulation) are less favorable than anticipated.  However, since Kaylo is capable of producing asbestosis, it is better to discover it now in animals rather than later in industrial workers.

– Dr. Arthur J. Vorwald, director, Trudeau Foundation, November 16, 1948

 Hundreds of thousands of lives could have been saved and a national tragedy averted if the insulation industry responded appropriately to the science and removed asbestos from its products. It did not. Instead, it continued to manufacture one of the most widely used asbestos products without informing workers or the public.

A 1949  internal Exxon memo titled ‘Company Confidential” lists “Cancer of Lungs” as a disease likely caused by asbestos.

In 1958, an inter-office memo from the National Gypsum Co., which mined and used asbestos,  stamped “Personal & Confidential” reads: “Just as certain as death and taxes . . . if you inhale asbestos dust you get asbestosis.”  (M.C.M Pollard, National Gypsum Co. Sept. 22, 1958.)

 Hiding the Danger from Workers and the Public

Despite a litany of corporate memos acknowledging the medical literature on the affects of asbestos, most companies profiting from its use continued to expose workers and the public to it for decades.

One of the most notorious industry memos, from 1966, shows just how callous executives were toward factory workers who were being exposed to asbestos.

The director of purchases for the Bendix Corporation (now Honeywell) wrote in a memo to an official with the Canadian Johns Manville Co.:

My answer to the problem is: if you have enjoyed a good life while working with asbestos products why not die from it.

– E.A. Martin, Bendix Corporation, Sept. 12, 1966

Today, Honeywell is one of the biggest corporate backers of legislation, the so-called FACT Act, passed by the House and awaiting action in the Senate that would delay and deny compensation to those who have been sickened from asbestos disease. Between 2010 and 2015, the company contributed nearly $250,000 to a small number of House Republicans who were instrumental in moving the bill through Congress.

An August 7, 1978 memo by an official at Babcock and Wilcox, a company that designs, engineers and manufactures boilers and other power generation equipment, acknowledged the company was aware it was violating OSHA standards set to limit worker exposure to asbestos fibers. The company decided to investigate the problem but not to warn workers who were being exposed. Instead, the company official wrote:

The investigation is going to be handled as discreetly as possible. It is a concern of the meeting attendees that a labor violation such as a walkout or an OSHA citation would be forthcoming if the hourly labor force was aware of the apparent danger of asbestos exposure. . . . As the situation stands right now no one in the meeting wants the warning signs posted at this time.

– T.L. Wharton, Babcock & Wilcox, Aug. 7, 1978

 While the death toll from asbestos-triggered diseases continued to mount, the industry remained silent on what it knew to be the truth about the risk to workers. A 1971 memo from a Ford Motor Co. executive, unearthed by the Center for Public Integrity, argued that $1.25 per car was too much to spend on safer alternatives to asbestos brakes, concluding the “cost penalty” of switching to metal or carbon brakes “is severe.”

Another asbestos industry giant, Union Carbide, went on the offensive when OSHA issued its first asbestos regulations for worker safety in 1972. That same year, the company issued a memorandum to sales executives who might get angry calls from customers concerned about the new regulations.

If the customer is persistent and threatens to eliminate asbestos – a certain amount of aggressiveness may be effective.  Words and catch phrases such as “premature,” “irrational” or “avoiding the inevitable” will sometimes turn the table.

 The main objective is to keep the customer on the defensive, make him justify his position. . . . Change the mood before discussing anything pertinent about the new regulations. Alternating between an aggressive and submissive attitude is confusing and allows you to bide your time. . . . Don’t cover too much ground in one confrontation.  Even rabies shots are spaced at moderate intervals.

– B.L. Ingalis, Union Carbide June 22, 1972

Public Relations and Science for Sale

 A speech from an asbestos industry expert dated June 7, 1973, describes a plan to sway the U.S. press, which had been increasingly reporting on the health impacts of asbestos exposure.

The “good” that asbestos does in protecting lives and property is of no concern to the press. . .

 The press relations battle will therefore be won, not when the media starts to print positive or balanced articles about asbestos, but when the press ceases to print anything about asbestos at all. . .

 And now, having heard the bad side of the public relations problems, it’s time for some good news.  And the the good news is that despite all the negative articles on asbestos-health that have appeared . . . very few people have been paying attention.

 Matthew M. Swetonic, executive secretary, Asbestos Information Association/North American, June 7, 1973

In the early 1980s, as the U.S. Gypsum Company was being sued by public school districts seeking compensation for the removal of the company’s asbestos products, it hired the international public relations firm, Hill and Knowlton to help.  The firm designed a comprehensive communications strategy to dissuade other lawsuits and shift the public’s perception about asbestos and the asbestos industry.  In its plan, Hill and Knowlton called for the creation of a “third-party panel of independent experts to be available for testimony, commentary and technical support in appropriate markets and forums.”

By 1984 a number of asbestos companies adopted another recommendation by Hill and Knowlton and formed the front group, the Safe Buildings Alliance (SBA), that allowed the industry to pool resources to push back against its critics in a number of venues, including the media.  As Hill and Knowlton described in its recommendations, the SBA “could also act to deflect attention away from affected companies,” and “take the heat from activist industry critics.”

In 2001, the Ford Motor Company, concerned about mounting lawsuits brought by former auto workers who blamed their mesothelioma on the asbestos-laced brakes the company once made, decided to try and shift the science in its favor in order to sow doubt into the prevailing consensus that auto mechanics are at greater risk of becoming sick with mesothelioma – a disease that the only known cause is from exposure to asbestos.

The company hired a well-known industry consultant, Dennis Paustenbach and his then-firm Exponent and another, Cardno ChemRisk that Paustenbach started in the mid 1980’s, to conduct a series of studies, articles for publication as well as expert testimony.  Of course, Paustenbach’s work on behalf of Ford found that those who worked with or around brake pads were not at greater risk of being diagnosed with mesothelioma. All told, Ford spent more than $40 million between the two consulting firms.

In a Dec. 28, 2010 letter to a Ford attorney, Paustenbach extolled the benefits of his and his colleagues’ work to Ford writing that:

…the “asbestos related research which resulted in publications which have been enormously illuminating to the courts and juries. . . In my view, these papers have changed the scientific playing field in the courtroom.”

In 2005, Georgia-Pacific recruited Stewart Holm, then director of toxicology and chemical management at Georgia-Pacific, for a new position to be “specially employed to perform expert consulting services in connection with pending and anticipated litigation concerning alleged exposure to asbestos.” Holm was to study the harms of chrysotile asbestos, and his work was to be “directed solely by GP’s in-house counsel.” He agreed to keep his work confidential from anyone outside the company.

Between 2008 and 2011, Holm co-wrote four articles on asbestos published in the journal Inhalation Toxicology that minimized asbestos risks. The articles disclosed that Georgia-Pacific had funded the research. But what they did not disclose – and what Holm later acknowledged in an Oct. 14, 2011 letter in the journal – was that Georgia-Pacific had commissioned the research specifically to address issues that had arisen in asbestos litigation. And he belatedly disclosed that his co-authors were all consulting experts retained by Georgia-Pacific to conduct the research or prepare the articles.

Georgia-Pacific is owned by Koch Industries, which is one of the biggest financial supporters of the American Legislative Exchange Council, or ALEC, that is currently pushing state legislatures to adopt laws that would run out the clock on dying asbestos victims seeking compensation in court.

Several states, including Arizona, Nevada, Tennessee, Texas, Utah, Wisconsin and West Virginia have already passed versions of the ALEC-sponsored bill into law.

Fallout from BASF/Cahill Gordon Cover Up Still Unfolding

The Engelhard Company, which would later become a subsidiary of BASF, conducted tests of its talc in the 1970s and found samples contaminated with asbestos. However, not only did the mining and use of the contaminated talc continue, the tests remained secret until they were revealed during a deposition of an Englehard executive as part of a personal injury lawsuit brought in 1979 by the family of an employee who died from mesothelioma.

In his deposition taken Jan. 28, 1983, Glenn Hemstock, then Engelhard vice president of research and development, acknowledged for the first time under oath that the company knew the talc it mined and used to manufacture products was tainted with asbestos.

In 1984, after the 1979 case was settled and the family signed a binding non-disclosure agreement, Hemstock sent a memo directing employees in possession of any documents pertaining to the company’s talc and talc products to gather them up. Court documents suggest that Engelhard executives, as well as its attorneys, including those with Cahill, Gordon, & Reindel, destroyed and hid these documents. These documents suggest Engelhard and Cahill, Gordon & Reindel went to great lengths to bury any evidence of the problem and lie about asbestos that poisoned thousands – a brazen enterprise that continued well after BASF took over the company.

By 1989, company executives were regularly making claims under oath that the talc mined and used by the company was asbestos-free.  William H. Ashton, an expert witness for Engelhard, said in a sworn affidavit that “from the 1940s through the 1980s, talc mined in Vermont and specifically, the talc mined by Engelhard Corporation (and its predecessors) . . has been considered to be talc free from contamination by asbestos.”

Engelhard and its successor BASF and its lawyers used this affidavit in thousands of lawsuits for decades as evidence that it did not produce asbestos-containing talc and successfully pressured hundreds of victims of asbestos-related diseases to drop their cases against Engelhard. In 2008, Jennifer Riester, an attorney for BASF and two of its subsidiaries, urged the attorney representing a victim of asbestos exposure to voluntarily drop the lawsuits brought against both subsidiaries. Riester, in her letter to the plaintiffs’ attorney, noted that more than 500 claimants in six different states dropped their cases after seeing the 1989 Ashton affidavit.

Today, a class action lawsuit has been filed in federal court against both BASF and its former law firm, Cahill, Gordon & Reindel, alleging they conspired to destroy and manufacture evidence in thousands of asbestos injury cases brought against BASF and Engelhard over the years.

BASF and Cahill, Gordon & Reindel attempted to have the case dismissed, but a federal judge denied their request in April 2016.U.S. District Judge Jose Lineras of New Jersey wrote that the defendants:

[H]ad a duty to preserve evidence when it was relevant in a prior lawsuit, and where it was reasonably foreseeable that the evidence would be relevant to anticipated lawsuits of nearly identical subject matter and similarly situated adversaries.

The Judge then found BASF and Cahill, Gordon, & Reindel had a “legal obligation to disclose evidence in connection with an existing or pending litigation.” For the thousands of individuals exposed to Engelhard/BASF’s asbestos-laden talc, their quest for justice, denied for decades, has now gained new hope.

The Fight to Protect Americans from Asbestos and Ensure Accountability for Those Responsible Continues Today

These are only a few examples of the 70-year conspiracy of corporations and their lawyers to hide the risks presented from exposure to asbestos.

The asbestos industry isn’t finished.  It is now seeking to change the playing field in court.  A well-funded lobbying effort has been in full-swing at both the state and federal levels to get legislation passed that would make it much harder for asbestos victims and their families to recover compensation from these corporations responsible for their illnesses.

Roughly 15,000 Americans continue to die each year from diseases caused from asbestos inhalation, even though the amount used today is far less than was once used when the aforementioned companies and many others were mining and using asbestos.

Diseases triggered from asbestos, including asbestosis, mesothelioma and non-mesothelioma lung cancers, remain among the leading causes of occupational illness and death in the U.S.

With the long latency period of asbestos disease, many people exposed decades ago are being diagnosed today, and diagnoses and deaths from asbestos-triggered disease will likely continue at their current levels for years to come.

Unbelievable to many, asbestos, while no longer mined in the U.S., is not banned in this country and continues to be brought in by certain industries, and it can still be found in some consumer products, including those meant for children. In 2015, laboratory tests found asbestos in several crayon sets and toy crime scene fingerprint kits imported from China and sold in stores in this country.

As described above, many companies, industry lawyers and consultants knew the risks asbestos presented to workers and public health decades ago and kept it secret in order to protect profits and evade responsibility. And as a result, the fight to prevent asbestos exposures and ensure that all of the corporations responsible are held fully accountable continues to this day.