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Asbestos Attorneys Square Off on Gaskets’ Role in Mesothelioma During HB Teleconference

Among the subsets of asbestos litigation are claims arising from shipyard workers exposed to asbestos in gaskets as they installed or removed them.   Two attorneys faced off on the issue during a Jan. 22, 2009 teleconference produced by HB Litigation Conferences, formerly Mealey’s Conferences.

One point of contention is whether gaskets play a role in the causation of mesothelioma.   Below are excerpts from the transcript where the attorneys presented their positions. 

First are the comments from asbestos plaintiff attorney Wes Wagnon, a trial lawyer with Paul & Hanley, LLC.  Wagnon has substantial experience handling personal injury cases arising from defective products.  Attorney Robert Rich, who has 15 years of asbestos litigation experience representing Global 100 clients, provides the defense pespective.  Rich is a partner with Gordon & Rees in the firm’s Environmental and Toxic Tort Practice Group.

The Plaintiffs’ Perspective

Here is some of what Wagnon had to say on the 100-minute call:

“. . . . Quite frankly, the literature favors the defense.  I will readily admit that.  Of course, much of the literature was financed by the defense, so from the plaintiffs’ perspective they got what they paid for in many instances.

“Let me explain how the plaintiffs view these cases.  One of the things that we start from is the view that all exposures to asbestos from any source are going to have contributed the development of the disease in the plaintiff.

wes-wagnon1“So, even if you have small contributors such as gasket manufacturers whose gaskets contributed, and that is small in relation to say the contribution of an insulation manufacturer, still there is a contribution.  And all contributions should be taken into account and all defendants who made a contribution to the injury should be paying their fair share in the litigation.

“We start from that perspective.  The second point that we start from is rather than viewing this from the standpoint of the manufacturer, we look at it from the standpoint of, ‘What was our client doing?’  Oftentimes, what our client was actually doing in the workplace was far different from what was simulated in these various studies.

“Specifically, for instance, let’s take the work practices at a shipyard such as Newport News.  The reason that the studies that were done at Newport News used grinders was because grinders were a standard issue to the pipe fitters and the people who were working with these gaskets and stuff every day.  They had these air-powered grinders in their kit bags.

“The reason they had them in their bags was because they were a handy, fast way to remove gasket residue when they needed to replace a gasket, whether it be a valve or some sort of a flange, in the field.  These grinders, which the studies show that the use of the grinders tends to produce very large amounts of fiber release; they were commonly used under these conditions.

“Secondly, workers under these conditions were typically working in small spaces that were poorly ventilated.  If you are going to test using a tenting or some sort of confined space, that is exactly the kind of working circumstance that these workers were working under.”

The Defense Perspective

Later in the call, defense attorney Robert Rich offered the following counter:

“You are right that some of the later studies that were done in the 1990s were financed either by plaintiffs or defendants . . . .  But most of the studies that I mentioned were not financed by the defense. 

“In terms of grinders being standard issue in kit bags for workers, I do take exception to that.  When people want to remove a gasket and the open up the flange, the first thing they do is they attempt to remove the gasket with a scraper, a flat tool of some sort.  Either the gasket comes off in total or they have to scrape it off and it removes it.

“If it doesn’t remove and the hand scraper doesn’t require a lot of energy, the amount of dust that is released is miniscule.  Now, if they can’t get all of it off with a hand scraper, then the next thing they would typically use is a hand wire brush, just a wire brush that they would scrape across the flange.  Some of the flanges had little concentric indentations in them that would help seal them.  The wire brush would be used to get any remnants of the stuck gasket out of the little indentations, the circular concentric indentations.

“If they were in a hurry and they didn’t want to use the wire brush, sometimes you hear people say that they used a power wire brush which is a wire brush that is hooked up to some air supply tool that vibrates and it moves quicker. 

robert-rich“The grinder studies are a different animal.  They are a tool that literally is not a scraper, not a hand wire brush, not a power wire brush, but a grinder that grinds whatever it is in front of you, whether it is a gasket or anything, into pixie dust.  In my experience when I read these plaintiff depositions, that is a very, very rare occurrence.  You rarely hear someone say that they did that.

“It is typically scrapers, wire brush, or even maybe a power wire brush. 

“In terms of your point, which is a good point, is that a lot of the gasket work is done in small compartments and therefore there is an opportunity for the dust to accumulate; that is true.  That has to be dealt with from the defense point of view.  But that is very different than grinder studies where a tent was placed directly over the gasket to capture that dust. 

“It is one thing to be in a ship compartment in a boiler room.  It is quite another to have a tent perhaps the size of a large toaster oven trying to capture all the dust, all the debris flying from this grinder, collecting it, and then putting it inside a measuring device to measure what the dust is which is what these grinder studies are doing.

“I agree with you that in a ship compartment the dust can collect, but that is very different from these grinder studies where they are really trying to collect the debris in a very small enclosure.

“You mentioned that power wire brushing will create higher dust levels than a scraper.  That is true, but you also have to take into account that the power wire brushing is only done for a few seconds to accomplish its goal.  Most of the gasket is removed by the scraper and may take a few seconds, 30 seconds, to get the remnants off with a power wire brush.

“Dose is a function of time multiplied by concentration.  Although you get slightly higher levels from power wire brushing, the time multiplied by the concentration, the time is very, very short . . .”

For more information on how to order the complete HB Audio Package for this teleconference, titled “Asbestos Gaskets:  Exposure and State of the Art,” which includes the recording, the presentations and the transcript, please contact HB Litigation Conferences LLC at Info@LitigationConferences.com