Loss of loved one inspires mesothelioma awareness

Recent Blue Cross Broad Street run in Philadelphia included members of one family on a singular mission: to carry out last wishes of their late father, James “Chalk” Thompson.  Following their run, family and friends of Thompson’s gathered for a benefit to raise funds for Mesothelioma Applied Research Foundation.
Thompson died after battling mesothelioma cancer, a rare and aggressive disease affecting about three thousand Americans each year. Thompson wanted desperately to spread the word about his disease in hopes of raising awareness about mesothelioma and its cause, asbestos. Sadly, due to his condition, he was unable to undertake such a task. His family and friends, though, are stepping up in his memory. Thompson’s daughter-in-law, Leslie Gabor, said, “He said, ‘Promise me that you will get awareness out there and . . . tell people the signs so they can get checked.’”
Mesothelioma is a harsh disease, mercilessly attacking healthy tissues protecting lungs, heart and other abdominal cavities. Characterized by a latency period spanning several decades, mesothelioma is difficult to diagnose until its final and most aggressive stage. Following diagnosis, mesothelioma life expectancy is short and grim.
Thompson believed his mesothelioma was a result of his fifty-three years as an insulator in and around Philadelphia, Pennsylvania. Like Thompson, many individuals who develop mesothelioma have no idea they were ever exposed to its cause, toxic chemical asbestos, until it is too late to treat with any hope of survival. Common to many workplace environments, employers often do not know, or do not say, that asbestos is a present hazard. Asbestos exposure, both accidental and intentional, has cost thousands of lives.
In recent years regulations have been put in place to protect employees and the general public from the threat of asbestos, but violations continue to happen.  Prized for its fire resistance, durability and stabilizing qualities, and with a high cost on asbestos abatement training and licensure, many companies ignore the regulations and proceed without protecting their employees or clients. Asbestos has been used so heavily for the past hundred years in America and around the world, opportunities for exposure are countless and widespread. A peak in mesothelioma cases is expected in future as latency periods beginning after establishment of asbestos regulations, come to an end.
Thompson’s son, Jim, said of his late father, “He wanted to go to the union halls . . . and try to get the word out to other guys about getting checked, but it didn’t work out that way, so now we’re picking up the pieces and trying to run with it. Hopefully, anybody that wants to know will be able to get information.  If we could save one person from going through what my father went through, it would be well worth it.”

This entry was posted on Tuesday, May 31st, 2011 at 10:21 AM and is filed under General, News. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed. 

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Why Can’t Mesothelioma Victims Sue the Government?

There have been a couple of posts about individual dockworkers in the United Kingdom suing their own national government for compensation. The basis for this compensation is that business of unloading ships is, in the UK, a government enterprise. This then raises the question of why mesothelioma victims who were exposed to asbestos through some governmental enterprise (e.g., building ships for the US Navy) in this country not able to sue their government? The reason is an ancient doctrine, known as “sovereign immunity” that came to this country’s legal system from its ancestor, ironically, the UK.
The theory behind sovereign immunity is that the sovereign, or government, be it King, President, etc, cannot be sued it its own courts. The idea is that the courts come from the government and that the government therefore cannot be a defendant in a court system that owes its very existence to that same government. Early on, this proved to be unworkable; no one with any sense would make a contract to be performed in the future or loan money to an entity that could not be sued in court. The solution was to pass statutes that allowed the government to be sued in specific circumstances, like for breach of contract or failure to repay debts (governments do a lot of borrowing, which you may have noticed recently). If, however, you were injured by the negligence (in other words, a tort) of the government and its personnel, you were still out of luck. In the late 1930′s while the newly activist federal government was busy fixing the depression and preparing for WWII, they addressed the problem by passing something known as the Federal Tort Claims Act, or FTCA. The catalyst for finally passing the FTCA in 1945 was the crash of the B-25 bomber, lost in the fog, into the side of the Empire State Building.
In finally establishing tort liability against the federal government, the drafters of the FTCA had to keep in mind the reason for sovereign immunity in the first place–governments do a lot of stupid things (start wars, fail to repair levees, etc.) that hurt people, and if folks were able to sue in court for all that stuff it would be totally impractical–the government would be bankrupt and couldn’t make sound decisions. It is, after all, the ultimate responsibility of government to strike a balance between competing interests–someone usually benefits and someone else gets hurt. On the other hand, if an IRS agent, in the performance of his or her official duties, goes through a red light and hits your car, Uncle Sam should have to pick up the tab as the employer of the lousy driver.
The solution was arrived at by dividing all government actions into two categories–discretionary and ministerial. This is sometimes referred to as the “discretionary function” test. A discretionary function would be, for example, the decision by the US Air Force to haul jet fuel on public highways in tank trucks. The ministerial function would be doing the actual hauling. So if the Air Force personnel leaves the fill cap loose and the jet fuel leaks all over an exit ramp and causes accidents (this is a case I actually had) the air force is responsible for that. If however, it turns out that using the public highways to haul jet fuel in general is a bad idea, the air force cannot be liable for that, because it is based on a policy decision about how fuel should be hauled. In short, it is negligence in the execution, not the planning, that creates governmental tort liability.
The new FTCA got almost an immediate workout. On April 16, 1947, a ship loaded with ammonium nitrate fertilizer for the Marshall Plan spontaneously blew up in the port of Texas City, Texas, setting off a nearby ammunition ship, other ships, and fuel storage tanks on shore. Over 500 people were killed, and the harbor at Texas City itself was reduced to a smoldering ruin. The entire scheme about storing and shipping both the fertilizer and ammunition had been undertaken and supervised by the federal government, everybody consequently sued under the FTCA. They lost. The US Supreme Court ruled that even if the plaintiffs could prove that the federal planning had been really, really stupid (which it was) it all fell under the umbrella of “discretionary function” decision making, therefore the feds didn’t have to pay squat. The outcry was so great that congress passed special legislation to compensate the victims in Texas City. But congress left the FTCA intact.
When the asbestos litigation started in the late 1970s’ many of the workers who were getting asbestos cancer, asbestosis and lung cancer had been exposed doing work that involved the federal government. The were suing companies like Johns-Manville, Raybestos, Eagle Picher and Owens-Illinois that had supplied asbestos-containing thermal insulation products under federal contracts and to federal specifications. These companies tried to sue the feds under FTCA, and they lost for the same reason that the good people in Texas City lost–the decision to use asbestos is a discretionary one. Of course, it didn’t help that these companies had helped write the very specifications that they were now trying to hide behind. Nor did it help that they had vastly superior knowledge to that of the federal government in the area of the health hazards of asbestos. The effort to sue the Federal Government had petered out by the early 1980′s.