The United States Government’s Role in the Asbestos Mess

More Asbestos History

The role of the United States government in the asbestos mess is relatively unexplored historical territory.  Anti-asbestos zealots, including the “Lobby,” and the plaintiffs bar, have demonized industry for the failure to control asbestos health hazards.  The truth is very different.  (The term, “the Lobby,” comes from the insightful article by the late Prof. Liddell:  F. D. K. Liddell, “Magic, Menance, Myth and Malice,” 41 Ann. Occup. Hyg. 3 (1997).  Liddell’s article should be required reading for all judges with an asbestos docket, as well as all policy makers and legislators who tackle asbestos issues.)

Back in 2007, Walter Olson, wrote an important essay on government and risk, “Dangerous When In Power” Reason (Mar. 2007). Olson later followed up on this theme at Point of Law, where he wrote about “The U.S. Navy and the asbestos calamity.”  Olson published some observations I shared with him at the time:

“In the mid-1970s, amidst economic turmoil and declining military budgets, the US Navy found itself with a big problem. Payments to civilians under the FECA (Federal Employees Compensation Act), a statute that gives civilian employees of shipyards the equivalent of workers’ compensation benefits, came right out of the Navy’s budget for shipbuilding. The Navy had no insurance for FECA payments, and suddenly it found itself facing a large uptick in the number of claims made by civilians for asbestos-related injuries.

About the same time, many states adopted some version of strict product liability, some stricter than others. None was likely stricter than Pennsylvania’s version.

The FECA gives the government liens against any recovery in third-party actions. The JAG lawyers, faced with a blooming docket of FECA cases, started to encourage the workers compensation plaintiffs’ lawyers to file third-party actions. Indeed, in Philadelphia, the lawyers who stepped into the forefront of asbestos personal injury actions had been workers comp lawyers with a large FECA docket (Gene Locks; Joe Shein).

The cruel irony of the FECA (or workers’ comp) statutes is that the employer pays regardless of fault, that the employer can’t be sued in civil actions, and that the employer can recover ~80% of its payments from settlements or judgment proceeds from a civil defendant.

Ultimately, the plaintiffs’ bar found that recoveries and settlements were too certain to encumber themselves and their clients with government liens, and they stopped filing their FECA cases altogether.

The government’s role in fueling the explosion of asbestos civil actions has never, to my knowledge, been discussed in the media. When I was a young lawyer, my first trials were in defense of companies that were dragged into litigation over having sold asbestos products to the Navy, often pursuant to government specifications. These cases, filed in the late 1970s, up for trial in the mid-1980s, often had a letter in the claimant’s personnel file from the JAG officer, noting that the man had been diagnosed with asbestosis and urging him to seek legal counsel to consider a civil suit against the Navy’s suppliers. Unfortunately, I don’t have any of these documents anymore, but they may not be too difficult to obtain.

What a story is hidden away in those old files! Not only did the Navy know of the asbestos hazards, hide them from its civilian workers, but when those workers got sick, the Navy turned on its outside suppliers by encouraging its workers to sue the suppliers, while hiding behind the exclusive remedy provision of the FECA.”

The historical mythology of asbestos and its hazards was created in large measure with the active cooperation of the government and asbestos plaintiffs’ lawyers.  The government, acting through the plaintiffs’ bar, was able to keep its weapons budgets intact, by minimizing its own losses on FECA payments.  We should probably thus regard the asbestos litigation as an early form of the parens patriae suits that have become a commonplace.

In the late 1960s, some of the asbestos insulation manufacturers that were still in business, created their own mythology. In litigating the early,  Navy-inspired, failure-to-warn claims, these insulation manufacturers advanced the unfounded view that the dangerousness of asbestos to end users was somehow not known before Dr. Irving Selikoff publicized the hazard, with his work in 1964. The insulators union’s publication, Asbestos Worker, shows an awareness of the hazard before then; indeed, the union’s appreciation of the hazard was in large measure the reason that the union approached Selikoff to conduct epidemiologic studies on their membership. The U.S. Navy was also well aware of the hazards (and thus did not need to be warned by anyone), as can be seen in an article entitled “Asbestosis” by Capt. H.M. Robbins & W.T. Marr in the October 1962 issue of the Navy’s Safety ReviewSee also Walter Olson, “Asbestos awareness pre-Selikoff,” (Oct. 19, 2007).

Recently, a defense expert witness, Dr. Dennis Paustenach, published an historical review on the evolution of knowledge about asbestos.  Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011) (available for download free of charge).

Here is the authors’ abstract:

“We evaluated dozens of published and unpublished documents describing the knowledge and awareness of both the scientific community and governmental entities, particularly the US Navy, regarding the health hazards associated with asbestos over time. We divided our analysis into specific blocks of time: 1900–1929, 1930–1959, and 1960–1970. By 1930, it was clear that high occupational exposure to asbestos caused a unique disease (asbestosis). Between about 1938 and 1965, a considerable amount of exposure and epidemiology data were collected by various scientific and government organizations. Between 1960 and 1970, mesothelioma was clearly linked to exposure to amphibole asbestos. Nonetheless, the Navy continued to require the use of asbestos-containing materials on ships, but also recommended that proper precautions be taken when handling asbestos. We concluded that the Navy was arguably one of the most knowledgeable organizations in the world regarding the health hazards of asbestos, and that it attempted to implement procedures that would minimize the opportunity for adverse effects on both servicemen and civilians. Finally, it is apparent from our research that through at least 1970, neither the military nor the private sector believed that the myriad of asbestos-containing products considered “encapsulated” (e.g. gaskets, brakes, Bakelite) posed a health hazard to those working with them.”

The subject is well covered territory, but the article approaches its subject matter from the perspective of what was known by the United States Navy, which may well have been singlehandedly responsible for exposing the greatest number of men and women to asbestos in the United States.  Back in the 1980s, Dr. Sam Forman covered a similar theme, but only through War War II.  See Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988).

The focus on the Navy is a welcome change from the conspiratorial histories of Brodeur, Castleman, Rosner, and others whose writings suggest that “industry,” more or less specifically defined, withheld material knowledge from its customers.  In the case of the Navy, the withholding may have gone the other way around.

I leave it to readers to judge the bona fides and Franke and Paustenbach’s historical essay, but from my perspective, the article generally hits a more balanced and better supported view of the asbestos state of the art.

The article is, however, not without problems.

Here are some things that were either left out, or given incomplete or inadequate emphasis:

1. The Navy’s work rules that required asbestos insulation to be removed from its packaging on shore, before being taken on board ships.  This work rule deprived ship-board workers of the benefit of warnings.  (Whether package warnings could have made any difference to control exposures that required technical personnel with exposure measuring equipment is a whole other matter.)

2. The Navy had effective knowledge of working conditions through its ownership and control of the workplace.  In this respect, the Navy’s knowledge of the hazards created in its shipyards was vastly greater than that of remote suppliers.

3.  The Navy’s had no workers’ compensation budget per se.  Money paid to civilian employees under the Federal Employees’ Compensation Act (FECA) came directly from the Navy’s general revenues.  Navy legal counsel encouraged FECA plaintiffs’ counsel to sue the Navy’s vendors under emerging doctrines of strict liability.  In some states, such as Pennsylvania and New Jersey, the vendors, sued in strict liability, often could not point to the Navy’s negligence as a defense because the Navy was immune from a civil suit.

There are historical nits to pick with Franke’s article, as well.  Consider:

“the elevated risk of lung cancer was first formally discovered by Doll in 1955 (Doll, 1955).”

Id. at 2.  What does it mean to discover something formally?  Doll certainly did not present a mathematical proof, with Q.E.D. at the bottom line.  The men who had lung cancer in Doll’s cohort also had asbestosis, and his study suggested that there was a relationship between the diffuse interstitial pulmonary fibrosis and lung cancer, and not necessarily an association with the lighter, more intermittent exposures sustained by insulators.  Furthermore, although Doll’s cohort was impressive at the time, he had no control for smoking.  This oversight was remarkable given that Doll was working on the epidemiology of smoking and lung cancer at the very time he published his cohort study of asbestos factory workers.

And consider the authors’ statement:

“Crocidolite was not frequently used in products … .”

Id. at 3 (citing Rachel Maines, Asbestos and Fire (New Brunswick 2005). The authors do not provide a specific page reference so it is difficult to evaluate their citation of Professor Maines.  What is known, however, is that crocidolite was used in transite pipe and board products, as well as other products, used throughout the United States, including Navy shipyards.  After Johns-Manville went into bankruptcy, shipyard workers miraculously experienced a sudden, permanent loss of memory about their use of JM products.  A careful review of the pre-JM-bankruptcy testimony of key shipyard workers, however, shows that “big blue” was in Navy shipyards.

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