In this podcast, Paul Kelley talks with John Maher about the role of corporate responsibility in asbestos lawsuits. He explains the different ways that corporations attempt to evade responsibility so they don’t have to pay injury claims.
John Maher: Hi, I’m John Maher. I’m here today with Paul Kelley. Paul is a partner with the Kentucky personal injury law firm, Satterley & Kelley, which has over 30 years of collective experience in handling cases involving mesothelioma and asbestos exposure. Today we’re talking about the role of corporate responsibility in mesothelioma lawsuits. Welcome Paul.
Paul Kelley: Hi, John. How are you doing today?
John: Good, thanks. Yeah. So Paul, can you explain a little bit first about what causes mesothelioma and how it’s affected people in the workplace?
Paul: Sure. So it’s universally accepted in the medical and scientific literature that really the sole cause of mesothelioma is asbestos exposure. And I’ll concede that some of my adversaries say otherwise. And there’s a little bit of controversy in the literature usually created by corporate money that other things cause mesothelioma. But everybody agrees that asbestos is the primary cause of nearly all mesotheliomas in the United States and throughout the world.
And since the 1930s and really all the way through the present, there have been people that have been exposed to asbestos in the workplace in a variety of different ways. I mean, you have people who worked in the manufacturing plants where products were made to contain asbestos, and they were exposed to raw asbestos fibers. We’ve seen people that worked in factory settings that took an asbestos product and incorporated it into some other product. So think of a vehicle that was manufactured with asbestos containing brakes. Think about panel box like your electrical box at your house that was manufactured with asbestos products. And then that box was incorporated into some other bigger product. There are numerous products like that.
People have been exposed. There’s the brake worker who performs brake work who’s exposed to asbestos in a number of different ways. There are insulators who had to install and remove asbestos containing insulation from pipes and boilers and turbines and all kinds of other equipment over the course of their life. There are roofers who installed asbestos containing shingles, electricians that worked with asbestos containing products. So for a long time, asbestos was something that mostly the heart and soul of America, our blue collar workers, our skilled laborers, tradespeople were exposed to heavy levels of asbestos.
In the United States that’s been diminished greatly in a lot of respects. However, something that’s very prevalent right now is talc, and talc is a product that is a naturally occurring product. It’s similar to asbestos, which is also a naturally occurring product. And there are people that work in talc mines and talc processing plants that are still exposed to asbestos in 2023. And then perhaps not germane to what we want to talk about today, but all throughout the world, I mean India, China, several other countries, they don’t have the same restrictions on asbestos as what we do in the United States and what other countries do. So worldwide, people are still being exposed to harmful, harmful levels of asbestos even in 2023.
John: So how does corporate responsibility impact the way that companies handle asbestos exposure in a mesothelioma lawsuit?
Paul: John, that’s a really interesting question. It’s all over the board. We have a lot of companies that we deal with, and I don’t want to name names in this particular podcast. It’s probably not appropriate. But there are a lot of companies that are pretty forthcoming with us, and we’re able to establish that our client was exposed to their product, they accept responsibility and they want to do the right thing and try to come to a fair and reasonable resolution of whatever controversy we have.
There are other companies that no matter what the evidence is, no matter who the plaintiff is, or under what circumstances the exposure occurred, they deny, they fight, they do everything in their power to avoid facing any responsibility whatsoever. It’s a really big problem with what we do because the evidence usually is overwhelming that these companies were aware when they sold asbestos containing products that they contained asbestos.
I mean, of course they knew. They intended for the product to be there. They were aware that asbestos was a carcinogen. They were aware that asbestos caused fatal cancers in people. And when we still see companies today that have faced literally thousands of lawsuits and have killed thousands of people, and they treat every case like it’s new and it’s different, it’s a clean slate and throw their hands up in the air and say, we’re not responsible, it certainly makes our job more difficult but that’s what we’ve been hired to do, is to deal with companies like that. But it also is a really cynical and manipulative way of facing their obligations as being a good corporate citizen. It doesn’t matter that they stopped making these products decades ago, they made lots and lots of money.
I mean hundreds of millions, billions of dollars if you brought it up to kind of the current present value. I mean, tens of billions of dollars from these products, and they still don’t want to face any responsibility for it. And instead, what they’ve done, they’ve gone the other way. They have paid for science to undermine all of the legitimate sources of science that are out there that say that asbestos causes disease or their asbestos causes disease.
And we see a lot of that. We just didn’t see 25, 30 years ago. It used to be that they would at least acknowledge that their product was capable of causing mesothelioma. Now, they don’t even do that now. Now they fight us every step of the way. Now that’s corporate responsibility from kind of a litigation standpoint. There’s another level of corporate responsibility. And what are they doing now? What are they doing now to try to prevent exposures from occurring in the future? Most asbestos products, or most cases that I deal with were for products that were made back in the 50s, 60s, 70s, that companies don’t make anymore.
And so I mean, for whatever reason, I wouldn’t pat them on the back and say they’re being good corporate citizens, but they’ve stopped making the products. So moving forward, people shouldn’t be harmed by those products. But there are products today that still contain asbestos, and we talked about it a moment ago, talc is something.
So corporations have a choice today, do we continue to sell this product? Do we take it off the market? If we continue to sell the product, do we warn about the product? Do we work with the FDA and other regulatory agencies to develop a testing protocol for the product, or do we lone wolf it and try to hide from the public what the potential risks of the product are? And so from a litigation standpoint, I believe that the ultimate exposure that a defendant has in terms of what a jury might do depends on decisions that they made 30 years ago and depends on decisions that they’re making today.
If it’s a product that they’re still selling, it’s a different world today, and they cram that concept down my throat in cases and say, you can’t judge people by 2023 standards for products that were made in the 70s because things were different back then. I don’t necessarily agree with that, but I certainly understand why they would say that. Well, what about the company that’s making the product in 2023? Can we judge that company by the 2023 standard? Of course we can.
So corporate responsibility is a big issue. I think it has a big impact, not just on litigation, but it has a big impact on the safety of people. And my job, I have two responsibilities. One is to the particular client that I have to try to recover for whatever injuries that they’ve suffered as a result of a bad corporate actor. But the other job we have is to try to stop it from happening in the future.
And if it’s something that’s being made today, it shouldn’t be. And if it is, warnings should be provided and people shouldn’t have to guess when they go to the grocery store or the drugstore and pull something off the shelf. They shouldn’t have to worry is there something in there that’s not only capable of causing me cancer, but there’s a pretty darn good shot that it will cause me cancer.
John: So in terms of the way that companies approach their corporate responsibility in mesothelioma cases changing over the years, you mentioned that now you’re seeing more and more companies, the companies that do sort of fight the issue and say, no, our product doesn’t contain asbestos, or whatever you said.
Previously, they would maybe admit that, yeah, our products did contain it. Now you’re saying they’re even going so far as to fund sort of fake science to try to prove that it doesn’t contain asbestos and almost going overboard to try to go the other direction. Are there other ways that you see that things have changed over the years in terms of the way that companies approach their responsibility?
Paul: I think that, again, a lot of companies take polar opposite views of how they should deal with things. And we’ll see some companies that will fess up and say, yeah, if we knew then what we know today, there’s not a chance we would’ve put this product on the market. We would’ve provided warnings. Maybe it was in a setting where their employees used asbestos products. We would’ve taken more safeguards, we would’ve done more.
And whether that’s genuine or not, it’s impossible to say, but they’re certainly saying the right things. And the way they treat litigation at least gives me some indication that that’s how they feel. There are other companies that literally go out of their way to try to recreate history, and they try to recreate it in a number of ways. And we mention the science. And the science is really interesting because up until probably 2000, 2005, I mean, there was no controversy about asbestos causing disease. There was none. And these are decades old studies.
What was also no question about is that most companies stopped making asbestos-containing products long before 2000. And certainly by 2000, and again, without naming any names in particular, you’ve got brake manufacturers who at the very latest stop manufacturing asbestos containing brakes in around 2000, 2001. Well then fast-forward to 2015, 2020, those same brake manufacturers are paying for studies that the ultimate conclusions are “you couldn’t get enough exposure to this product either in its new unaltered state or in the kind of consumed state, there’s no way you could get enough exposure to get disease.”
And I understand why they would do those things from a litigation standpoint. There is no reason to fund those studies from a health-based standpoint or from an industry standpoint because you’re not making the product anymore. You’re literally not making the product. So you’re not saving anybody today by warning them or providing any information whatsoever about a product that hasn’t been made for 20 years. So you have to come to the conclusion that those studies are being created for litigation, for the courts. So that-
John: Right. For the sole purpose of trying to avoid their responsibility?
Paul: Absolutely. Yeah. And we’ve seen some defendants were a lot more savvy back in the 60s and 70s, and I think they kind of foreshadowed that they would end up in this litigation. And so they started creating some of these defenses back in even those days and started littering here and there, the medical and scientific literature.
And then as technology has really taken off, I mean, it’s just so much easier. I mean, there are litigation expert companies, for lack of a better term, I mean big corporations, and you’ll have an arm that’ll be the research and the publication arm, and then you’ll have an arm that’ll be the testifying arm. And they try not to cross them over too much so that there can be some, I guess, indicia of lack of bias or being unbiased.
John: An appearance that they’re separate entities and that they’re not related to each other.
Paul: That’s right. And so it’s really changed a lot. I’ve been doing this for 21 years now, my partner’s been doing this for more than that, and there were just a lot of things that we took for granted based on science. And we see it in a lot of different contexts now that there’s been a rejection of conventional science and conventional consensus.
And now it makes it to the point where you have to have somebody that’s been doing this for a long time because we have such access to transcripts from 25 years ago where an expert said in 1998, this product under certain circumstances could cause mesothelioma. And then in 2023, they write a report and say it can’t, there’s no circumstance. And so we have access to information where we can call them on it and say, well, that’s not what you said.
And they can come up with any reason they want. They can say, oh, I’ve done more research, I’ve read more, but it doesn’t look good when the basis for your change happens to coincide with you starting to work for defense companies. You are starting to make more money than what you did when you said something else years ago. But corporate responsibility to me, it’s kind of a hot button topic in that companies don’t really change who they are for the most part.
If they were a fighter and they were willing to bury things back in the 50s, 60s, and 70s, they are not willing to concede these things in the 21st century, and they’re never going to agree. And that’s why the court system exists. That’s why we do what we do. Because if they won’t accept responsibility, then we have to get a jury to make them responsible.
John: Right. Well, what do you think the role of government regulations is in terms of ensuring that companies are held accountable for their actions regarding asbestos exposure?
Paul: So government regulations have been interesting as well. It really started with state governments. You’ve heard, I’m sure most of our listeners have heard, OSHA, EPA. Those are federal agencies. OSHA, for example, didn’t really exist until 1971. The OSHA emergency standard was enacted for asbestos in December of 1971, and then the official standard became official in 1972 and exists today. And those standards have changed over the years, but it was really state governments that began to regulate things like asbestos.
Going back into the 1930s, a lot of states had workers’ compensation laws that they called occupational disease acts that regulated the amount of exposure that people could have in the workplace to asbestos, silica, benzene, a wide variety of chemicals. Then you fast-forward into the 1940s and 50s, a lot of state governments impose what are called threshold limit values for exposure to asbestos and other things.
Back in those days, it was measured in something called particles per cubic foot. So the threshold limit value for asbestos in most states in the United States prior to 1971 was 5 million particles per cubic foot. Now you’re probably sitting there thinking as well as many people would, that sounds like an awful lot of asbestos. That sounds like an incredible amount of asbestos. 5 million particles per cubic foot of asbestos sounds like you could be exposed to a lot of it.
I wish I had it with me right now to show, but we had an expert years ago measure 5 million particles per cubic foot and put it into a vial. So imagine a vial the size of an average writing pen, and probably only a couple, maybe an inch of that vial would comprise 5 million particles per cubic foot of asbestos. So that’s not a lot. And those were the workplace standards for many years until 1971.
And then in 1971, OSHA came along and said, we’re really seeing a prevalence of workers dying from cancer, asbestosis, all kinds of cancers, but particularly mesothelioma, and we need to regulate this. But the problem is industry fought it, and employers had been using asbestos for decades. They weren’t taking measurements, they weren’t really… State governments, while they had the standard, they weren’t coming into the plants and taking measurements, they weren’t issuing citations.
So really it was kind of meatless regulations that were occurring. So when OSHA came in, and I think OSHA did mean business and said, we’re going to regulate this, but industry wasn’t ready to just quit cold turkey. They couldn’t do it. And standard asbestos products like insulation, which was huge back in those days… It was in every manufacturing plant built before 1972, any Powerhouse built before 1972.
And it’s just a horrible friable material. I mean that if you touch it with your hand, it would crumble immediately. It would produce all kinds of dust. So the industry negotiated with OSHA on those standards. And the initial emergency standard was 12 fibers per cubic centimeter. That’s about what that 5 million particles per cubic foot amounted to. But that’s a lot of asbestos. 12 fibers per CC is really a lot of asbestos is horribly unsafe.
So that was a standard that was going to be in place for six months. And then December, it was lowered… Oh, I’m sorry. In June of ’72, it was lowered to five fibers per CC, and that’s over an eight-hour time weighted average. So over the course of an eight-hour day per the regulation, you could have five fibers per CC of exposure over the course of your day, and that was acceptable per the regulation. So the reason why I’m giving this history is the answer, the question is the regulations were well intended, but they didn’t work because it was too much asbestos.
John: They didn’t go far enough.
Paul: Absolutely. At five fibers per CC, dozens of people per thousand workers were going to get mesothelioma. So they already knew in 1972 that they were going to automatically by operation of… they were going to reduce that level to two fibers per CC in 1976. Okay, that’s great. We’re going to lower it. That was going to give industry four years to eliminate asbestos or develop better industrial hygiene methods in order to reduce the exposure.
Again, the problem is that the two fibers per CC is way too high, and it was never going to prevent people from getting mesothelioma. Ultimately, in 1986, it was reduced to 0.2, and then in 1994, it was reduced to 0.1 fiber per cc, and that’s basically about as low as what they could regulate because it’s hard to measure at those levels, and it would be very, very hard to measure and determine compliance below 0.1.
However, in 1986, when OSHA reduced the levels to 0.2, OSHA said, even at this level, there’s going to be a statistically significant number of people who are still going to develop mesothelioma from workplace exposure. So OSHA never said at any point in time that if you keep people at these levels that they’re not going to get disease.
John: That this is a safe level, right?
Paul: That’s absolutely right. And if you go to OSHA right now, if you go to their website, if you read papers from OSHA, OSHA will still say today, the only safe level of exposure to asbestos is zero, no exposure. There is no safe level. The problem that we face as lawyers and the problems that our clients face is the defendants want to use OSHA as a sword instead of a shield. And they frequently go to courts, go to judges, go to juries, and they say, look, we had every reason to believe that the OSHA level was safe, that if we kept levels below those, that people wouldn’t get sick, and that was safe.
And our job is to point out the numerous things that not only OSHA said, but also it was all throughout the medical and scientific literature as well as by the way, corporate documents, many of our defendants agree in 1976 that the OSHA limits weren’t safe. But today, when they have lawyers representing them, the lawyers say, we had every reason to believe that if we followed the OSHA regulations, we would be safe. And that’s not the case.
And the literature certainly did not support that notion. It’s just that’s what the government could do, and the government had to negotiate heavily to get to that point in order to regulate it at all. And sadly, the government is still in that position today with a lot of things. I’ve talked about talc today and the FDA doesn’t regulate talc. Talc comes within the FDA’s jurisdiction, but the FDA doesn’t test talc. It hasn’t imposed any exposure limits on talc. All it says is there shouldn’t be asbestos in talc, but it really doesn’t do anything to make any determinations.
So government regulations are always a good thing, always a good thing. But government regulations have limitations. And at the end of the day, satisfying government regulations does not protect everyone. Will it reduce the number of people who get cancer and has it reduced that number? Absolutely. I mean, if OSHA hadn’t been enacted, my goodness, there would be so many more people that would’ve died of asbestos cancers. It would be devastating to see how many people would’ve died.
But government regulations aren’t the sole answer, and they haven’t eradicated it. The only thing that would eradicate these cancers is for companies to say, We’re done. We’re never going to manufacture any product with any type of asbestos, no matter how small we think the exposure would be. It’s guaranteed that if you make something with asbestos in 20 years, somebody’s going to get cancer from it.
John: Absolutely. All right. Well, that’s really great information, Paul. Thanks again for speaking with me today.
Paul: Oh, thanks John. I appreciate it.
John Maher: And for more information about mesothelioma and asbestos exposure, visit the law firm of Satterley & Kelley at satterleylaw.com or call 855-385-9532.