Recent Developments in Asbestos Litigation

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The Pittsburgh
Corning Bankruptcy
The Babcock &
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The SV40 —
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Owens-Illinois vs.
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Recent Developments

The Pittsburgh Corning Bankruptcy

Pittsburgh Corning filed for bankruptcy in the year 2000, taking itself out of the tort system. There may be a couple of hundred million dollars that will at least theoretically be available to compensate sufferers of mesothelioma, lung cancer, and asbestosis who have been exposed to Pittsburgh Corning's Unibestos pipecovering.

Unibestos was one of the few high-temperature thermal pipe insulations that could be applied to pipes made from stainless steel (ordinary calcium silicates cause stainless steel to corrode). It was, therefore, used heavily in applications like nuclear submarines (the reactors have pipes made of stainless steel), chemical plants, and refineries. As it is composed primarily of amosite asbestos, Unibestos was one of the more lethal products to hit the pipe insulation market, especially when it comes to causing mesothelioma.

Those who will be most affected are workers whose primary exposure was to Unibestos, and those who have difficulty proving exposure to the asbestos-containing products of other manufacturers which are not, as of yet, in bankruptcy.

The Babcock & Wilcox Bankruptcy

For over a century, Babcock & Wilcox (B&W) has been and remains the preeminent manufacturer of heavy-duty industrial and marine boilers in the world. For example, most U.S. Navy Destroyers from World War II on have B&W "M Type" boilers. Most power stations have B&W boilers. The only other companies worth mentioning in this field are Combustion Engineering, Foster-Wheeler and, to a lesser extent, Riley Stoker. Until the 1970s, these boilers contained both asbestos-containing insulation and asbestos-containing refractory materials, exposing the workers who installed and maintained them.

Babcock & Wilcox and its insurance companies made a decision early in the litigation that they would attempt to settle, rather than litigate, mesothelioma and other asbestos disease claims. This saved a bundle in lawyers' fees, and lowered transaction costs all the way around. At the time B&W filed for bankruptcy, they had over a billion dollars in insurance coverage remaining, and asbestos litigation did not appear to be having an adverse impact on the company's day-to-day business operations, which is somewhat disturbing.

Bankruptcy delays the resolution of claims for years, and the process of bankruptcy chews up vast quantities of money that could be going to sick people and their families. Many folks are watching to see how this comes out.

The SV40 — Mesothelioma Controversy

There is a lot of blather going on about "SV40". Some of it is interesting, and much of it is self-serving baloney generated by asbestos-industry cheerleaders and public-relations flacks.

Briefly, in the 1950s and 1960s, after the creation of polio vaccine, there was a massive effort to vaccinate everyone, and especially young people, against polio. I had a classmate from Greece in elementary school who had contracted polio as a toddler. Believe me, it was a horrible, crippling disease that has, for all intents and purposes, been wiped from the face of the earth. This is a good thing.

The problem is, the virus to make the vaccine was cultured in monkey kidneys — vast quantities of monkeys were exported from Africa for this purpose. Some of these monkeys were carriers of something called "Simian Virus 40", which (like the HIV virus that also made the species jump at some point) is harmless to monkeys. Some of this virus made its way into batches of the polio virus that was administered to humans, and as a result SV40 entered the human population.

There has been research in recent years, including recent work done at Loyola University, suggesting that SV40, among populations exposed to asbestos, may increase the likelihood of contracting mesothelioma. The research that I am aware of does not suggest that SV40 alone causes mesothelioma, and it is certain that asbestos-exposed individuals were dying of mesothelioma prior to the advent of polio vaccine.

Needless to say, these results are still controversial, and some respected scientists remain skeptical. What is beyond controversy is that asbestos defendants are trying to put a public relations "spin" on these results, and are attempting to assert an "SV40 defense" in minimal-exposure mesothelioma cases. Thus far, they have failed.

The truly interesting idea is that there might one day be a mesothelioma vaccine for asbestos-exposed individuals who test positive for SV40. That is, obviously, a long way off.

Owens-Illinois vs. Turner & Newall

This is one of the most curious lawsuits in the history of asbestos litigation, if not in the history of litigation itself.

Owens-Illinois (OI), who manufactured Kaylo insulation from 1944 until selling the product line to Owens Corning in May of 1958, has filed a lawsuit against Turner & Newall (T&N), a British company that manufactured a sprayed-asbestos insulation called Limpet for the better part of the twentieth century. Turner & Newall was a part of Cape Asbestos, which mined and exported asbestos from South Africa (the Cape is the province that is at the bottom tip of Africa, hence the name, shared with that of the provincial capitol, Capetown). The first widely publicized medical research linking mesothelioma to asbestos came from studies done on workers in the South African asbestos industry.

OI has sued T&N for several billion dollars, on the theory that T&N knew more about the hazards of asbestos than OI did, and that therefore T&N should reimburse OI for all the money it has had to pay out in mesothelioma and other asbestos disease claims, which amounts to a couple billion dollars.