Asbestos legislation now proposed in the California threatens to crush the rights of all mesothelioma patients as well as the rights of other victims of asbestos exposure and their families. This is a very urgent matter: the first vote on Assembly Bill 597 (AB 597) is set for April 28 in the California Assembly Judiciary Committee. We at Kazan Law vehemently oppose this new asbestos legislation and urge you to help us defeat it. Please see how in the information below.

Asbestos Legislation’s Sponsor and Backers

This cruel and harmful asbestos legislative proposal was introduced by Assembly Member Ken Cooley (D- Rancho Cordova). But its real backers are groups that defend corporations. AB 597 is based on model legislation promoted nationwide by the American Legislative Exchange Council (ALEC). ALEC is the corporate-funded organization of conservative state legislators and private sector representatives that promotes limits on government with no regard to the fallout for workers or the environment. ALEC focuses on stripping consumers and workers of their rights in order to maximize profits for corporate members. It is funded by the Koch brothers, who own Georgia-Pacific, a major asbestos defendant.

AB 597, among other things, can eliminate the right of asbestos victims to a fair and speedy trial

AB 597 forces asbestos victims to jump through expensive and time-consuming legal hoops before bringing their case to trial. Delay is the point of this bill – delay which assures that those most ill will die before their case reaches judgment. Mesothelioma, for which the only known cause is asbestos exposure, is a fatal illness. Although it lies dormant for decades after the initial asbestos exposure, once it has progressed enough to be accurately diagnosed the sufferer typically has about a year left to live.

Why Justice Delayed Is Justice Denied For Asbestos Victims

For most victims who are dying from mesothelioma, justice delayed is justice denied. In California, unlike many other jurisdictions, if the person bringing a lawsuit for injuries dies before the case is complete, there is no financial award for the pain and suffering the victim endured. The victim’s family will receive far less in compensation. The corporate perpetrators who caused the victim’s agonizing death are shielded from full accountability and significantly benefit financially from the delays AB 597 creates.

Because mesothelioma victims die soon after diagnosis, they are often eligible for a speedy civil trial under current California law. But their right to a speedy trial will mean nothing if the victim is unable to prepare for trial or if the right to that speedy trial is removed by defendants because of new AB 597 requirements.

How Asbestos Legislation Harms Sick and Dying Asbestos Victims

The lethal hazards of asbestos have been well established since the 1930s. When workers, veterans and others are sick and dying from illnesses caused by asbestos exposure, they can sue in state court the product manufacturers, premises owners, and others who knew about the dangers of asbestos but failed to warn them or provide them with protection from this deadly toxin.

Many companies, in order to shield their assets from lawsuits filed by poisoned workers and their families, set up asbestos trust funds through the bankruptcy court system. Those trusts pay these workers a much smaller amount – pennies on the dollar — than they would have received if a jury decided the case.

The proposed California asbestos legislation forces asbestos victims to investigate and provide to the wrongdoers all information regarding claims for every possible trust – and there are over 60 of them – before the victims can proceed with their case. The actual victims will be required by AB 597 to submit statements under penalty of perjury verifying that they have looked into each asbestos trust for a potential claim. This will delay the trial because of the work involved searching for information – information the defendants already have! And should the victim miss just one of the potential trusts, the wrongdoers can seek delay of any trial date. And that means death before a court judgment can be reached.

How You Can Help Us Stop AB 597

At Kazan Law we are doing everything we can to defeat this new asbestos legislation that would be so detrimental to asbestos victims. But we need your help. Time is of the essence. This bill will be heard for the first time on April 28 and we want to stop it now by encouraging the author to drop the bill.

Please take a moment and write to State Assembly Member Cooley. There are three forms of letters you may find useful. Choose the one that reflects whether you are writing as an individual, a U.S. Armed Services veteran, or on behalf of an organization (the letter from organizations is pre-addressed to the Chair of the Assembly Judiciary Committee and if you send it there, your organization will be listed among the many others opposed to AB 597). All are available on our website. Simply click the link.

individual model letter

veteran model letter

organizational model letter

Asbestos Legislation Opposed By Many Organizations

The California Labor Federation, AFL-CIO; the State Building & Construction Trades Council of California; California Professional Firefighters and the Sacramento Central Labor Council are just some of the groups who are on record as officially opposed to this asbestos legislation. A list is available on our website here. Check back for updates.

Please join these important groups and all of us at Kazan Law in trying to defeat this bill that further hurts asbestos victims who already have been irrevocably hurt, and that further rewards big corporations who are getting away with murder.

The first asbestos court case, most people assume was one of the precedent-setting Johns-Manville cases in the late 1960s here in the U.S. They’re partly right. By the early 1970s, Kazan Law became involved with these asbestos cases and helped establish the groundbreaking legal remedy of filing a civil suit against a company in addition to workers’ compensation claims.

Unfortunately, this sea change in asbestos litigation occurred about fifty years too late for Nellie Kershaw, the very first documented asbestos court case.

Nellie Kershaw, an Asbestos Spinner

Nellie Kershaw’s short tragic life began in 1891 in the industrial northwest of England in a town near Manchester in a town called Rochdale. It was located in a region known as a center for the asbestos industry. She left school in 1903 at age 12 to work in a cotton mill. At the age of 26, she started working for Turner Brothers Asbestos. Her job title was that of a rover, and it involved spinning asbestos fibers into yarn.

Turner Brothers Asbestos was once the largest asbestos producer in the world. It owned mines in Canada and southern Africa as well as factories in the north of England. It was there that the mineral was processed into a spun yarn. In the early twentieth century the company boasted that ‘new uses for asbestos are constantly being discovered, the industry may be regarded as having touched only the fringe of its immense possibilities’. Nellie Kershaw’s death in 1924 at age 33 would begin to change that.

Asbestos Harm Denied By Employers

By the time she was 29 years old, Nellie began having the first symptoms asbestos-related disease. In 1922, she became too ill to work. By then she was married and had a little daughter born in 1920. A physician diagnosed that she was suffering from “asbestos poisoning.” Because her illness was related to her work, England’s National Health Insurance said she was ineligible for sickness benefits and told her she to seek financial support from Workers Compensation. But Turner Brothers feared setting a precedent that might lead other asbestos-sickened workers to ask them for money. They refused to pay any benefits to Nellie even as her situation became more desperate. Asbestos-related illness was not a recognized occupational disease then, and Turner Brothers instructed their insurance company to “repudiate the claim” as it would be “exceedingly dangerous” to accept “any liability whatever in such a case.”

Turner’s management wrote to Nellie’s doctor attacking his diagnosis. They wrote, “We repudiate the term “Asbestos Poisoning”. Asbestos is not poisonous and no definition or knowledge of such a disease exists. Such a description is not to be found amongst the list of industrial diseases in the schedule published with the Workmen’s Compensation Act.” But he did not back down.

Nellie herself pleaded in vain with her former bosses for compensation for her asbestos-related illness. In a letter that has been preserved she wrote, “What are you going to do about my case? I have been home 9 weeks now and have not received a penny – I think it’s time that there was something from you as the National Health refuses to pay me anything. I am needing nourishment and the money, I should have had 9 weeks wages now through no fault of my own.”

None ever came. She died in poverty on March 14, 1924 and was buried in an unmarked pauper’s grave.

Act of Parliament Gives Nellie a Posthumous Victory

Nellie’s premature death and her doctor’s insistence that it was due to “asbestos poisoning” forced the local coroner to initiate a formal inquest in court. Documents show that Turner Brothers instructed their attorney to attend the inquest and “evade any financial liability for Mrs. Kershaw’s death.”

Dr William Edmund Cooke, a pathologist and bacteriologist, called in during the autopsy to examine Nellie’s lungs, testified that he saw visible “particles of mineral matter … of various shapes, but the large majority have sharp angles.” When he compared these particles with samples of asbestos dust, Dr. Cooke concluded that the particles in Nellie’s lungs “originated from asbestos and were, beyond a reasonable doubt, the primary cause of the fibrosis of the lungs and therefore of death”.

Nellie’s death certificate, issued April 2, 1924 lists “Fibrosis of the lungs due to the inhalation of mineral particles” as the cause of her death.

What really brought the case to light was Dr. Cooke’s decision to write a full medical paper about it in 1927 and publish it in the British Medical Journal. In it, he gave Nellie’s disease the name by which it is still known: “pulmonary asbestosis.” It became the first asbestos case to be described in medical literature and the first published report of disease attributed to occupational asbestos exposure.

Dr. Cooke’s article prompted Parliament to call for a full investigation into the effects of asbestos. The results of the report led to Parliament passing the first Asbestos Industry Regulations in 1931.

However, Turner Brothers Asbestos never was made to accept liability for Nellie’s death, paid no compensation to her bereaved family and refused to contribute towards funeral expenses as it “would create a precedent and admit responsibility.”

This attitude continued, and spread to the US where it remains the practice of American asbestos defendants and their insurance carriers. But 40 years ago, specialized American trial lawyers like those at our firm began to stand up for asbestos company victims and lead the fight to get them justice. We have ’leveled the playing field’ and forced the asbestos industry to pay tens of billions of dollars to those they have hurt and killed. No wonder big business hates trial lawyers!

The Female Face of Asbestos Tragedy

England’s leading anti-asbestos advocate, Laurie Kazan-Allen, who heads International Ban Asbestos Secretariat and also happens to be my sister, recently wrote about Nellie Kershaw and other British female victims of asbestos exposure:

“Nowadays, Britain has the unwelcome distinction of having the world’s highest mortality rate from the asbestos cancer, mesothelioma. Historically, male mesothelioma deaths have dominated the statistics with, at times, six times as many male as female fatalities. Considering the lower death rate amongst British women, it is of interest to note that so many of the landmark cases through which the national asbestos reality has been revealed relate to the tragic experiences of female victims. In factories and schools, at home and at work, British women have paid with their lives for the asbestos industry’s profits.”

Mesothelioma patients did not choose to be exposed to asbestos and develop this disease. But every mesothelioma patient can and should choose the kinds of medical care they wish to receive as the disease progresses.

By deciding your options early, you can ensure your quality of life and avoid having your family guess your wishes or make critical medical care decisions for you under stress.

California law provides individuals a way to make their health care wishes known and considered when they become unable to make these decisions themselves. The Advanced Health Care Directive is the legal document that allows patients to make their end-of-life care choices ahead of time.

The Two Parts of the California Advance Care Directive

There are two basic kinds of health care documents everyone with mesothelioma should have. First, you need a document naming a trusted person to direct your health care if you are unable to do so yourself. This document is known as a durable power of attorney for health care. It does not give this person the right to make legal or financial decisions for you. That is a different kind of power of attorney.

Second, you need a document that specifies the types of medical treatment you would or would not like to receive in certain situations. This document is often known as a living will.

In California, these two documents are combined into a single form called an advance health care directive.

Writing an advance care directive may be difficult. You need to:

• Know and understand your treatment options
• Decide future treatment options you may want
• Discuss your choices with your family

Although this document does not need to be created by an attorney, you should already be working with an attorney to prepare an estate plan, usually including a family trust, and that attorney should include preparation of these forms as part of the services provided.

Why Mesothelioma Patients Also Need a POLST

Mesothelioma patients also need to complete a one-page document called the POLST, short for Physicians Orders for Life-Sustaining Treatment. You can request one from your doctor’s office.

The decisions documented on the POLST form include whether to:

• Attempt cardiopulmonary resuscitation,
• Administer antibiotics and IV fluids,
• Use a ventilator to help with breathing, and
• Provide artificial nutrition by tube.

Does the POLST form replace the Advance Care Directive?

The POLST form supplements advance care directive and is not intended to replace it. It is a medical order and can be used by paramedics and other first responders. It ensures that the preferences expressed in the advance care directive are actually carried out. You also need an Advance Directive to appoint a legal health care decision-maker.

Initiating an asbestos lawsuit can seem frightening and overwhelming. But it doesn’t have to be. Your mesothelioma / asbestos lawyer should take care of everything for you and spare you from the legal rigmarole as much as possible. But filing an asbestos lawsuit will seem less intimidating if you have a basic understanding of what is going on and know what to expect.

Providing Basic Information For Your Asbestos Lawyer

If you plan to file an asbestos lawsuit because you have been diagnosed with mesothelioma, a cancer caused by asbestos exposure, I am sorry. But it is urgent to start your asbestos lawsuit as soon as possible. You can expect to be asked to provide copies of your diagnosis from your doctor along with any proof you may have of being exposed to asbestos. It could be Social Security statements verifying where you were employed, military service papers or even packaging from insulation products in your home. Your asbestos lawyer will be able to help find official records for you.

Pre-Trial Steps in an Asbestos Lawsuit

Your asbestos lawsuit begins with the filing of an official complaint in the proper court; either in the county where you live or where a business you are suing is located. When you file a lawsuit of any kind, you are referred to as the plaintiff; the one who is bringing a complaint to court. The person or entity against whom the case is filed is often referred to as the defendant; the one who has to try to defend against the accusations stated in the complaint.

Many asbestos lawsuits are filed against several entities – manufacturers, distributors, suppliers, etc.- so in these cases there are multiple defendants.

The complaint states the plaintiff’s version of the facts, the legal concept under which the case is brought (negligence, for example), and asks for specific sums of money as damages or other relief. The plaintiff also files with the court clerk a request that a summons be issued to the defendants. This notifies the defendants that a lawsuit has been filed against them.

In many jurisdictions, the summons will be served by a deputy sheriff or special process server. In other jurisdictions, it may be served by mail. After being notified, the defendants have a certain period of time to file an answer admitting or denying the allegations made in the complaint.

More about how we file an asbestos lawsuit complaint here.

In a global first for mesothelioma litigation, Kazan Law has taken the lead to legally stop forced mesothelioma genetic testing. At issue is a recently discovered genetic mutation called BAP1 that reportedly signals higher risk for developing mesothelioma.

Kazan Law Files First Declaration Opposing Forced Testing for BAP1 Gene

Kazan Law Associate Andrea Huston filed a declaration here in Alameda County to oppose the forced mesothelioma genetic testing of a client, who is a mesothelioma patient, by the corporation alleged to have exposed her to asbestos causing her mesothelioma.

“I have represented asbestos plaintiffs for 15 years. Until about June 2014, I had never had a case in which any defendant raised any issue regarding BAP1 gene…Nor to my knowledge had anyone in my office had such a case before June 2014,”Andrea states in her declaration.

She mentions another one of our current cases in which the company accused of causing a client’s mesothelioma has requested a “blood sample” from our client so they can test it for the BAP1 gene.

There are several other cases in other parts of the U.S. where forced mesothelioma genetic testing is also currently a controversial issue.

Kazan Law Fight Against Forced Mesothelioma Genetic Testing Featured in Global Law Journal

Forced mesothelioma genetic testing is so new that our cases caught the attention of a prominent defendant-sponsored online blog site, GlobalTort.

The article highlights the declaration we filed and also how the issue of forced mesothelioma genetic testing marks a new phase for mesothelioma litigation.

“Thus, 2014 becomes the year mesothelioma litigation undeniably entered the age of precision scientific analysis aimed at a particular person’s genomics, and related molecular characteristics,” the article states.

BAP1 Gene Discovered in 2011

In 2011, researchers from the University of Hawaii Cancer Center reported that mutations in the BAP1 gene might predispose people with this mutation to develop mesothelioma when they are exposed to asbestos. The researchers are still studying whether BAP1 could help identify individuals at high risk of mesothelioma, and just how to use these findings in treating mesothelioma patients.

“More experiments are urgently needed to see whether BAP1 expression could be used in diagnostic, prognostic, or therapeutic settings,” the researchers noted in an abstract of the findings published in the Journal of Cancer Research and presented at the 2014 American Association for Cancer Research annual meeting.

In an analysis of 10,566 U.S. mesothelioma patients from 1973 to 2010 listed in the US Surveillance, Epidemiology, and End Results (SEER) program, the researchers reported that only 23 of them carried the BAP1 gene.

Corporate Misuse of Science

It sure didn’t take long for corporate lawyers to try to take the new discovery about BAP1 and turn it into something that to use against innocent people who are dying because of corporate greed and neglect. Knowingly exposing people to lethal asbestos is wrong regardless of anyone’s genetic make-up. Starting with the historic Johns-Manville case in the 1970s, our firm has had a history of successfully pioneering asbestos litigation so we are ready to fight this new 21^st century battle for our clients and asbestos victims everywhere.