By Michael Horwin, MA, JD*
Deciding to pursue legal recourse and selecting an attorney to represent you in a mesothelioma or asbestos lawsuit are important decisions that should be made carefully. I have seen some families receive $500,000 and others be awarded nearly $30 million. I have seen some lawyers reject a case only to have another firm accept it and make a big success of it. And I have seen some families wait nearly three years to receive their first check while others received large checks within three months of filing a claim. The main reasons for these differences are the facts of the patient's situation and the law firm chosen.
The Facts of Your Situation
Some mesothelioma patients know they worked around asbestos, but many do not know how they were exposed or how often. In fact, many people are not sure if they were ever near this carcinogen. Unfortunately, there have been thousands of products that contained asbestos - cigarette filters, hair dryers, brakes, basement and roof materials, pipes, boilers, insulation, and many other products found throughout the home and at work. If you were diagnosed with mesothelioma it is more than likely that you were exposed to asbestos multiple times in your life and that this happened decades before your diagnosis.
In general, the value of your case depends on how many asbestos containing products you were exposed to, the number of identifiable defendants that still exist (many have declared bankruptcy), your age and earning capacity. And the speed of your case can depend on a number of variables including the state where you worked and lived when you were exposed to asbestos.
The Law Firm You Choose
When you have been given the news about this terrible disease, you may not feel that you have the time to deal with the legal questions - Should I talk to a lawyer? Should I file a claim? However, you should not wait too long to learn about your legal rights for at least three reasons:
1. Statutes of Limitations - There are statute of limitations which means you only have a limited time to file your case after diagnosis. The statute of limitations time period is set by individual states and varies. The clock usually starts ticking on the day of diagnosis.
2. Financial Pressure - A mesothelioma diagnosis can bring financial stress, less income, more expenses, and treatments that are not covered by insurance. Knowing that money may be on the way from filing a claim can bring financial relief.
3. Lawyers Can be Excellent Resources - The more experienced mesothelioma lawyers and law firms can often be excellent sources of information about various doctors and treatment options available for this disease.
But, picking a lawyer is serious business and you should not use TV ads as the reason to hire an attorney. Actual credentials are what counts. For example, what type of accomplishments has the law firm achieved? How committed are they to mesothelioma/asbestos cases? Are these cases a substantial part of their practice or just a small piece? How many other cases like yours have they handled?
Also, make sure you understand the fees being charges. Contingency is the term that means that the lawyer gets paid only after they collect money for you. The amount of the contingency fee that your lawyer can charge varies and is usually between 33% and 40%. It is important to discuss fees openly, ask what services they cover, how they are calculated, and whether there will be any extra charges.
Finally, for something as important as a mesothelioma lawsuit, your attorney should not only be experienced, skilled, and dedicated, but also a trusted partner who understands that your health needs always take precedence. The best lawyers are those that are not only expert at what they do, but are also caring, supportive, thoughtful and compassionate.
by Matt Miller published in TheDeal.com.
In mid-June, U.S. Bankruptcy Judge Judith Fitzgerald of the Western District of Pennsylvania in Pittsburgh is scheduled to convene her court and hold confirmation hearings on a complex, $1 billion reorganization plan for Federal-Mogul Corp., the Southfield, Mich., auto parts manufacturer stuck for more than five years in a long and troubled Chapter 11. If successful—and it's still possible some insurance companies will oppose confirmation—Federal-Mogul would become the latest in a string of major companies to reorganize over the past year after seeking bankruptcy protection for asbestos-related liabilities.
A handful of companies, most notably Columbia, Md.-based specialty chemicals and materials maker W.R. Grace & Co., remain dug into the bankruptcy trenches, with no end in sight. And a few current cases, such as Congoleum Corp., are textbook examples of poorly crafted plans that can languish for years. Meanwhile, smaller asbestos-related potential bankruptcy cases remain in the pipeline, say legal practitioners. These companies could file for Chapter 11 over the next several months.
For all of that, the Federal-Mogul case may mark the tail end of the quarter-century arc of what the Rand Institute for Civil Justice once called "the longest-running mass tort litigation" in U.S. history. With many of the biggest cases out of the way, it's a good time for stock taking. Did the use of Chapter 11 to resolve huge, multigenerational liabilities—the death and disease wrought by the use of asbestos—make sense? Is there a better way to reward litigants in winning class actions without destroying the jobs of workers and crippling the companies so they're unable to pay those claims? Should bankruptcy play a role at all?
Interviews with lawyers representing various perspectives on the great asbestos experiment understandably reveal sharp differences. Yet most agree on the following: What for the better part of two decades was a messy, wasteful and by all accounts grossly unfair process has improved significantly over the past two years or so. Some of these cases have shown it's possible for companies to reorganize in a way that allows them to retain or regain financial health and still set aside large pools of money for victims of asbestos-related diseases, both current and future. These cases are gaining speed and efficiency. The trust administration of the settlement is more efficient, fairer and more rigorous in who gets what. The most needy are finally getting a bigger share of the pot, sometimes as much as 90% of the total, more commonly around 70% of the pool. The stock market is rewarding companies that emerge from bankruptcy to such an extent that they can afford large settlements. "What has happened is beneficial for everybody," says Roger Frankel, Washington-based co-chair of the bankruptcy and debt-restructuring group for Orrick, Herrington and Sutcliffe LLP.
And despite the extremely mixed record of the earlier years of the crisis, progress is undeniable. "Yes, there's been a tremendous amount of benefit," says Natalie Ramsey, a Philadelphia-based partner at Montgomery, McCracken, Walker & Rhoads LLP. Ramsey litigates on behalf of cancer victims. "But I don't think we're all the way there yet."
A few of the most recent asbestos-related cases provide a model for dealing with mass tort liabilities, many lawyers now believe. Frankel, for one, cites the ability in asbestos-related bankruptcies to come up with plans that have both "some degree of predictability" and results acceptable to all parties. "The victims, present and future, and the commercial players have done very well, and that's the way it should be," says Frankel, who has represented both debtors and future claimants.
The bankruptcy case most often cited as successful for debtor and creditor alike involves—amazingly enough, given other controversies—two Halliburton Co. subsidiaries, DII Industries LLC and KBR, formerly Kellogg Brown & Root. Both were reorganized in January 2005 after a little more than a year in Chapter 11. In a settlement worth $5.3 billion, asbestos claimants got 100 cents on the dollar. (This compares with 5 cents on the dollar victims received in the earliest asbestos-related bankruptcy case involving the Johns-Manville Corp.) And these claimants received their money quickly. Halliburton "paid $2.7 billion in cash," says Michael Rosenthal, a Dallas-based partner at Gibson, Dunn & Crutcher LLP, who represents the trust that administers the settlement. The trust "paid it out the next day."
A trust for future claimants is just as well funded. It received 13% of Halliburton stock, which it sold for $2.6 billion. "The company operated from a position of strength. It cut deals. It spread money around," says Mark Plevin, a Washington-based partner at Crowell & Moring LLP, who represents insurance companies and has often been critical of the bankruptcy proceedings.
What's more, adds Jeffrey Rich, a New York-based restructuring partner at Kirkpatrick & Lockhart Preston Gates Ellis LLP, Halliburton didn't base its settlement on insurance coverage but, rather, chose to work it out with its own funds after attempting to collect from insurers. "Rather than arguing for the last penny, they kept their eye on the bottom line," says Plevin.
In all, 80 companies filed for Chapter 11 and cited asbestos liabilities as the reason, according to a report in Mealey's Asbestos Bankruptcy Report. Almost 30 of those filed during a three-year period from 2000 to 2002. After years of frustration and relatively few reorganizations, the logjam finally broke last year. Since early 2006, the following companies have all successfully reorganized: USG Corp., Owens Corning, Armstrong World Industries Inc., ABB Lummus Global Inc., Porter Hayden Co., Kaiser Aluminum Corp., J.T. Thorpe & Son Inc., Babcock & Wilcox Co., Combustion Engineering Inc., Plibrico Co. LLC and the non-U.S. subsidiaries of Federal-Mogul Corp.
"There is no question that the acme of Chapter 11 asbestos cases seems to have passed," says David Heiman, a Cleveland-based restructuring partner at Jones Day. "Winding down may be an apt way to put it."
It's been a long, hard slog. By the late 1970s, there was irrefutable evidence that exposure to asbestos could lead to debilitating and sometimes deadly diseases, including a particularly nasty form of cancer called mesothelioma, which is almost always fatal. But the gestation time between exposure and sickness could take years, if not decades, for symptoms to occur. Johns-Manville was the largest U.S. asbestos producer and supplier. By 1982, according to one estimate, the pace of litigation had so quickened that three cases per hour were being filed against the company.
That year, Johns-Manville became the first to declare bankruptcy in an unsuccessful—some would say disastrous—attempt to manage asbestos lawsuits. Those fashioning the reorganization completely underestimated the number and cost of claims. Johns-Manville reorganized in 1988. The fund it set up for victims lasted two years before it was depleted. The company was forced to re-enter bankruptcy. The second attempt wasn't much better. Even the sickest victims ended up getting pennies on the dollar in claims. "Manville ended up paying 5 cents on the dollar, so people were fighting over a limited pie," says Plevin.
In 1994, Congress amended the Bankruptcy Code to include a special provision on dealing with asbestos-related mass torts, Sec. 524(g), which provided a permanent injunction against asbestos-related liabilities as part of a reorganization plan.
The injunction came with a huge catch, however. Ostensibly to ensure justice for all litigants, Sec. 524(g) requires approval of 75% of all claimants, a supermajority. The unintended consequence: a small, but powerful cabal of lawyers representing thousands of healthy individuals, some with no symptoms and little evidence of exposure, could dictate terms and hold up proceedings. "524(g) is a killer because it gives the plaintiffs' lawyers total control," says Harvey Miller, a partner at Weil, Gotshal & Manges LLP and one of the deans of the bankruptcy bar.
"It was a badly written law," another lawyer says bluntly.
So just about everybody found themselves between the proverbial rock and hard place. If companies chose to defend each claim, the attorneys' fees climbed more rapidly than the national debt. According to one estimate, USG was spending $1 million a day in defense costs, roughly equivalent to its Ebitda.
The claimants who needed the money most fared no better. The courts were overwhelmed by claims, the vast bulk of which dealt with individuals who showed no signs of illness.
Early bankruptcy settlements were a cruel joke. According to information culled from "Mealey's Litigation Reporter: Asbestos," the 1996 reorganization of Amatex—now Norristown, Pa., specialty textiles producer Amatex-Norfab Corp.—called for mesothelioma victims to receive a mere $925 each.
About the only winners in this phase were lawyers—those representing tens of thousands of alleged victims and those defending corporations—and other legal and financial advisers.
What's happened in recent years reflects both judicial and legislative intervention, which has effectively reduced the clout of those plaintiffs' lawyers representing thousands of nonimpaired claimants, making the process more productive and timely. "As courts gained more experience with 524(g) and more certainty in their interpretations, they have strengthened a number of issues that needed to be addressed," Ramsey says.
Lawyers cite several judicial rulings, especially in the 3rd Circuit Court of Appeals in Philadelphia, that clarify corporate obligations, creditor priorities and, in general, establish guidelines for what can and can't be done. One such ruling, for example, made in December 2004 involved Combustion Engineering and a so-called two-trust model. The company, a subsidiary of Zurich-based ABB Ltd., formed a prepetition trust with assets enough to settle most claims, then filed for Chapter 11, hoping to establish another trust that deals with what remains, including future claims. The court nixed such a structure as being inherently unfair to claimants, who had yet to be compensated. ABB ended up putting an additional $232 million into the fund, and the reorganization was approved.
Several states, including former havens for lawsuits such as Mississippi, have passed laws that tighten medical standards and criteria that dictate where cases can be filed. The result: Plaintiffs' lawyers can no longer overwhelm the system with supposed victims who show no signs of illness, the so-called unimpaired claimants.
Judges have also weighed in on this issue. Most notably, in a scathing June 2005 ruling, Janis Graham Jack, a U.S. District Court judge for the Southern District of Texas, excoriated certain plaintiffs' lawyers, doctors and medical screeners for techniques used to bring thousands of new and often-dubious asbestos- and silica-related claims to court. "These diagnoses were driven by neither health nor justice; they were manufactured for money," she wrote in her 249-page decision.
Jack described in detail a ludicrous process that would magically uncover thousands of cases by setting up mobile testing centers in random parking lots. "A golfer is more likely to hit a hole-in-one than an occupational medicine specialist is to find a single case of both silicosis and asbestosis," she wrote. Yet supposed independent screeners "parked a van in some parking lots and found over 4,000 such cases."
The effect of all this combination of legislative and judicial review has been a dramatic decline in the number of new unimpaired claimants. "There has been a sea change," Heiman says.
According to one estimate, by 2001, there were 400,000 individual claimants and as many as 8 million claims. ("A typical claimant files claims against approximately 20 defendants," wrote Michelle White, a University of California, San Diego, economist in a 2002 paper.) In 2001 and 2002, there were upwards of 80,000 new claimants annually, according to another estimate. The number of new claimants fell to about 5,000 last year. "It's much more difficult for the [lawyers of] unimpaired or nonsick to prosecute claims," says Rosenthal. "It's less and less profitable to file unimpaired claims," so lawyers recruit fewer unimpaired claimants. "It's not worth the money."
Add to this trust administration, which is getting better, as Ramsey puts it, "insuring appropriate procedures for the people who deserve to be paid from the trust and paid promptly."
Another factor in the resolution of bankruptcy cases was the collapse in February 2006 of federal asbestos-related legislation, which had been years on the docket. As last crafted, the law would have established a $140 billion trust fund for victims in return for toughened criteria for claimants. When the legislation appeared on track, several companies refused to settle, thinking they could get a better deal by waiting it out and becoming part of the overall pool. After the bill died, there was greater incentive to settle. While many companies used their time in bankruptcy to build up cash reserves, refinance debt and clean up other liabilities, being in Chapter 11 limited activities, especially those companies interested in selling themselves or their assets off.
Bankruptcy lawyers themselves have learned to work around the limitations of 524(g), and some of the more recent success among practitioners reflects a better attuned, more collegial and less divisive effort. "We've all learned a lot along the way, how to work together," says Laura Davis Jones, a Wilmington, Del.-based partner at Pachulski Stang Ziehl Young Jones & Weintraub LLP and a veteran debtor counsel in numerous asbestos-related bankruptcies.
All this has led to resolution. "Companies saw the handwriting on the wall," Rosenthal says.
That was certainly the case with USG, whose $6 billion settlement last year combined cash, shares and insurance proceeds. Had asbestos legislation passed Congress, USG's share of the pool might have been $2 billion less.
Even so, the settlement is widely considered a success. "Everybody was satisfied. Everybody got a great result," says Heiman, who acted as debtor counsel, and who may, admittedly, be biased. Bank and trade "creditors got paid in full, plus five-year's interest, and shareholders retained all their interest." Asbestos victims also received 100% of their claims.
Part of that settlement, says Heiman, reflects the strengthening of Chicago-based USG, a major manufacturer of building materials, while in bankruptcy. Profit margins widened. The company's cash grew significantly. "For the USGs of the world, it wasn't only asbestos," says Rosenthal. "They used the case effectively to deal with other unfavorable financial arrangements. Plus, they're not paying legal expenses [involved in litigation], so they can deliver the same product at a lower cost."
USG's bankruptcy took five years to play out, during which victims got nothing. It was a protracted and often-contentious fight. "Had we known it would take so long, would we have filed?" Heiman asks rhetorically. "I'm not sure. But that five years proved very useful to the company."
Despite the success of USG and Halliburton, certain companies remain obstinate about what they will offer up to settle a bankruptcy. Grace, for example, rejects what has become the standard formula for assessing liability through the use of outside experts and formulas and insists it is liable for only a fraction of pending claims. The company has embarked on its own estimation procedure, which is both lengthy and hugely expensive.
One lawyer believes it boils down to a simple formula: Grace won't agree to anything that would dilute shareholder equity. The disconnect is striking. In the vast majority of Chapter 11 cases, equity holders lose everything. Meanwhile, in the Grace case, cancer victims get nothing. "Present claimants have not been paid in the six years since Grace filed," says Frankel. "It's an example of where the result has not turned out well."
Pittsburgh-Corning Corp. is another example. Parent PPG Industries Inc. tried to push through a plan that would absolve it not only of liabilities because of Pittsburgh-Corning, but of liabilities PPG had picked up on its own. Fitzgerald shot down that approach and nixed the reorganization plan. "The judge said, 'You can't do this,' " says Steven Kazan, whose Oakland, Calif.-based law firm, Kazan, McClain, Abrams, Fernandez, Lyons, Farrise & Greenwood PLC specializes in representing mesothelioma and asbestosis victims. "It was clear to everyone that Pittsburgh-Corning was doomed, with the parents trying to get a free ride."
The debtor asked the judge to reconsider. Assuming she doesn't reverse herself, the question now is whether various parties will negotiate a settlement quickly. Kazan isn't hopeful. "Now there will be another two to three years and God knows how many millions in court costs."
When it filed for Chapter 11 in December 2003, Congoleum touted its effort as a prepackaged bankruptcy. Instead, Congoleum provided an almost steady stream of miscues. Among other gaffes, the flooring materials manufacturer hired as adviser a firm that also represented asbestos claimants in the same case.
In January, Kathryn Ferguson, a U.S. bankruptcy judge in New Jersey, knocked back Congoleum's 11th effort to craft a reorganization. Practice didn't make perfect. That effort was rife with blatant loopholes and inequities. (The judge noted, among other problems, that mesothelioma victims would receive 5% of what similar victims negotiated with the company prepetition.) In addition to insurance coverage, the company offered a paltry $2.7 million promissory note. Congoleum's parent, American Biltrite Inc., would throw in $250,000 in cash. Congoleum also offered 3.8 million new shares to the trust, but only if bondholders voted their approval. If they didn't, bondholders and the trust would share. The exasperated judge pointed out that she couldn't even determine exactly what percentage of the reconstituted company those shares represented ? 22%, 31.5% or 67.5%.
What's more, Congoleum attempted to circumvent a provision within 524(g) that mandates a majority of shares in the reorganized company be pledged to the victims' trust or delineate certain contingencies that would trigger the transfer of those shares to the trust. In Congoleum's proposal, the only possible way the company could have defaulted on its promissory note is if the company was worthless. "There is no plausible scenario in which the plan trust would be able to convert the shares when they were still valuable," wrote Ferguson. "The debtors are freeing themselves of what they describe as crushing asbestos liability while offering what appears to be little more than insurance proceeds in return."
"It's a mess," says one lawyer not involved in the case.
While dynamics vary from case to case, the more successful reorganizations tend to be those companies whose health is fundamentally sound, with the exception of the asbestos overhang. The thinking goes something like this: Get rid of the liabilities once and for all, and the stock market will reward you. That certainly was the case in Halliburton.
Halliburton has no one to blame but itself for its asbestos-related liabilities. The company, then run by Vice President Dick Cheney, spent $7.7 billion acquiring Dresser Industries Inc. in 1998, knowing that the companies faced asbestos lawsuits.
Federal-Mogul has a similar history. It bought asbestos-laden companies in the belief that they were discounted more than potential liabilities would cost. Federal-Mogul, for example, acquired the publicly traded building supplies company T&N Ltd. in 1997. It was Britain's largest asbestos manufacturer and was being hammered by asbestos-related litigation. The strategy was disastrous on all counts. Federal-Mogul piled on billions of dollars in debt for acquisitions that turned out to be sinkholes of liabilities. Before the company went bankrupt, it spent more than $700 million settling more than 300,000 claims. "Federal-Mogul thought it had the magic formula for asbestos liabilities, buying companies no one else would buy," says Rosenthal. "They totally underestimated the claims."
The Federal-Mogul reorganization has an added twist. Under the plan, the victims get a tad more than half of the stock in the reorganized company. Carl Icahn, who owns a significant portion of the company's unsecured debt, also has an option under the reorganization plan to acquire from the asbestos victims' trust all the stock, save for 13% earmarked for U.K. victims. If he exercises his option, Icahn would pay $375 million in cash and $400 million in a note.
Not that Federal-Mogul is a model of bankruptcy efficiency. "Did you know the English manager billed more than was set aside for all British victims?" Kazan asks.
In his typically outspoken manner, Kazan begins a conversation about asbestos and bankruptcy by railing against some of the best-known debtor counsels, those in the plaintiffs' bar who have grown rich by representing unimpaired victims and the universe of professionals who have attached themselves to the bankruptcy cases. "Fee applications are so depressing, I stopped reading them," he says. "The amount of money spent is outrageous ? it's insane."
But even Kazan returns to the nonbankruptcy alternatives, which for years, he characterizes as "a race to the courthouse" pitting the very sick against a multitude of others. Some of the sickest victims, the kind he represents, could find themselves in line for trial for years. They may never live to see settlements.
"Bankruptcies suck. By definition, no one gets paid what he's owed," he says, then concedes that a few of the more recent reorganizations represent "the best of a bad situation."
That is something of an achievement all by itself.
In mid-June, U.S. Bankruptcy Judge Judith Fitzgerald of the Western District of Pennsylvania in Pittsburgh is scheduled to convene her court and hold confirmation hearings on a complex, $1 billion reorganization plan for Federal-Mogul Corp., the Southfield, Mich., auto parts manufacturer stuck for more than five years in a long and troubled Chapter 11. If successful—and it's still possible some insurance companies will oppose confirmation—Federal-Mogul would become the latest in a string of major companies to reorganize over the past year after seeking bankruptcy protection for asbestos-related liabilities.
A handful of companies, most notably Columbia, Md.-based specialty chemicals and materials maker W.R. Grace & Co., remain dug into the bankruptcy trenches, with no end in sight. And a few current cases, such as Congoleum Corp., are textbook examples of poorly crafted plans that can languish for years. Meanwhile, smaller asbestos-related potential bankruptcy cases remain in the pipeline, say legal practitioners. These companies could file for Chapter 11 over the next several months.
For all of that, the Federal-Mogul case may mark the tail end of the quarter-century arc of what the Rand Institute for Civil Justice once called "the longest-running mass tort litigation" in U.S. history. With many of the biggest cases out of the way, it's a good time for stock taking. Did the use of Chapter 11 to resolve huge, multigenerational liabilities—the death and disease wrought by the use of asbestos—make sense? Is there a better way to reward litigants in winning class actions without destroying the jobs of workers and crippling the companies so they're unable to pay those claims? Should bankruptcy play a role at all?
Interviews with lawyers representing various perspectives on the great asbestos experiment understandably reveal sharp differences. Yet most agree on the following: What for the better part of two decades was a messy, wasteful and by all accounts grossly unfair process has improved significantly over the past two years or so. Some of these cases have shown it's possible for companies to reorganize in a way that allows them to retain or regain financial health and still set aside large pools of money for victims of asbestos-related diseases, both current and future. These cases are gaining speed and efficiency. The trust administration of the settlement is more efficient, fairer and more rigorous in who gets what. The most needy are finally getting a bigger share of the pot, sometimes as much as 90% of the total, more commonly around 70% of the pool. The stock market is rewarding companies that emerge from bankruptcy to such an extent that they can afford large settlements. "What has happened is beneficial for everybody," says Roger Frankel, Washington-based co-chair of the bankruptcy and debt-restructuring group for Orrick, Herrington and Sutcliffe LLP.
And despite the extremely mixed record of the earlier years of the crisis, progress is undeniable. "Yes, there's been a tremendous amount of benefit," says Natalie Ramsey, a Philadelphia-based partner at Montgomery, McCracken, Walker & Rhoads LLP. Ramsey litigates on behalf of cancer victims. "But I don't think we're all the way there yet."
A few of the most recent asbestos-related cases provide a model for dealing with mass tort liabilities, many lawyers now believe. Frankel, for one, cites the ability in asbestos-related bankruptcies to come up with plans that have both "some degree of predictability" and results acceptable to all parties. "The victims, present and future, and the commercial players have done very well, and that's the way it should be," says Frankel, who has represented both debtors and future claimants.
The bankruptcy case most often cited as successful for debtor and creditor alike involves—amazingly enough, given other controversies—two Halliburton Co. subsidiaries, DII Industries LLC and KBR, formerly Kellogg Brown & Root. Both were reorganized in January 2005 after a little more than a year in Chapter 11. In a settlement worth $5.3 billion, asbestos claimants got 100 cents on the dollar. (This compares with 5 cents on the dollar victims received in the earliest asbestos-related bankruptcy case involving the Johns-Manville Corp.) And these claimants received their money quickly. Halliburton "paid $2.7 billion in cash," says Michael Rosenthal, a Dallas-based partner at Gibson, Dunn & Crutcher LLP, who represents the trust that administers the settlement. The trust "paid it out the next day."
A trust for future claimants is just as well funded. It received 13% of Halliburton stock, which it sold for $2.6 billion. "The company operated from a position of strength. It cut deals. It spread money around," says Mark Plevin, a Washington-based partner at Crowell & Moring LLP, who represents insurance companies and has often been critical of the bankruptcy proceedings.
What's more, adds Jeffrey Rich, a New York-based restructuring partner at Kirkpatrick & Lockhart Preston Gates Ellis LLP, Halliburton didn't base its settlement on insurance coverage but, rather, chose to work it out with its own funds after attempting to collect from insurers. "Rather than arguing for the last penny, they kept their eye on the bottom line," says Plevin.
In all, 80 companies filed for Chapter 11 and cited asbestos liabilities as the reason, according to a report in Mealey's Asbestos Bankruptcy Report. Almost 30 of those filed during a three-year period from 2000 to 2002. After years of frustration and relatively few reorganizations, the logjam finally broke last year. Since early 2006, the following companies have all successfully reorganized: USG Corp., Owens Corning, Armstrong World Industries Inc., ABB Lummus Global Inc., Porter Hayden Co., Kaiser Aluminum Corp., J.T. Thorpe & Son Inc., Babcock & Wilcox Co., Combustion Engineering Inc., Plibrico Co. LLC and the non-U.S. subsidiaries of Federal-Mogul Corp.
"There is no question that the acme of Chapter 11 asbestos cases seems to have passed," says David Heiman, a Cleveland-based restructuring partner at Jones Day. "Winding down may be an apt way to put it."
It's been a long, hard slog. By the late 1970s, there was irrefutable evidence that exposure to asbestos could lead to debilitating and sometimes deadly diseases, including a particularly nasty form of cancer called mesothelioma, which is almost always fatal. But the gestation time between exposure and sickness could take years, if not decades, for symptoms to occur. Johns-Manville was the largest U.S. asbestos producer and supplier. By 1982, according to one estimate, the pace of litigation had so quickened that three cases per hour were being filed against the company.
That year, Johns-Manville became the first to declare bankruptcy in an unsuccessful—some would say disastrous—attempt to manage asbestos lawsuits. Those fashioning the reorganization completely underestimated the number and cost of claims. Johns-Manville reorganized in 1988. The fund it set up for victims lasted two years before it was depleted. The company was forced to re-enter bankruptcy. The second attempt wasn't much better. Even the sickest victims ended up getting pennies on the dollar in claims. "Manville ended up paying 5 cents on the dollar, so people were fighting over a limited pie," says Plevin.
In 1994, Congress amended the Bankruptcy Code to include a special provision on dealing with asbestos-related mass torts, Sec. 524(g), which provided a permanent injunction against asbestos-related liabilities as part of a reorganization plan.
The injunction came with a huge catch, however. Ostensibly to ensure justice for all litigants, Sec. 524(g) requires approval of 75% of all claimants, a supermajority. The unintended consequence: a small, but powerful cabal of lawyers representing thousands of healthy individuals, some with no symptoms and little evidence of exposure, could dictate terms and hold up proceedings. "524(g) is a killer because it gives the plaintiffs' lawyers total control," says Harvey Miller, a partner at Weil, Gotshal & Manges LLP and one of the deans of the bankruptcy bar.
"It was a badly written law," another lawyer says bluntly.
So just about everybody found themselves between the proverbial rock and hard place. If companies chose to defend each claim, the attorneys' fees climbed more rapidly than the national debt. According to one estimate, USG was spending $1 million a day in defense costs, roughly equivalent to its Ebitda.
The claimants who needed the money most fared no better. The courts were overwhelmed by claims, the vast bulk of which dealt with individuals who showed no signs of illness.
Early bankruptcy settlements were a cruel joke. According to information culled from "Mealey's Litigation Reporter: Asbestos," the 1996 reorganization of Amatex—now Norristown, Pa., specialty textiles producer Amatex-Norfab Corp.—called for mesothelioma victims to receive a mere $925 each.
About the only winners in this phase were lawyers—those representing tens of thousands of alleged victims and those defending corporations—and other legal and financial advisers.
What's happened in recent years reflects both judicial and legislative intervention, which has effectively reduced the clout of those plaintiffs' lawyers representing thousands of nonimpaired claimants, making the process more productive and timely. "As courts gained more experience with 524(g) and more certainty in their interpretations, they have strengthened a number of issues that needed to be addressed," Ramsey says.
Lawyers cite several judicial rulings, especially in the 3rd Circuit Court of Appeals in Philadelphia, that clarify corporate obligations, creditor priorities and, in general, establish guidelines for what can and can't be done. One such ruling, for example, made in December 2004 involved Combustion Engineering and a so-called two-trust model. The company, a subsidiary of Zurich-based ABB Ltd., formed a prepetition trust with assets enough to settle most claims, then filed for Chapter 11, hoping to establish another trust that deals with what remains, including future claims. The court nixed such a structure as being inherently unfair to claimants, who had yet to be compensated. ABB ended up putting an additional $232 million into the fund, and the reorganization was approved.
Several states, including former havens for lawsuits such as Mississippi, have passed laws that tighten medical standards and criteria that dictate where cases can be filed. The result: Plaintiffs' lawyers can no longer overwhelm the system with supposed victims who show no signs of illness, the so-called unimpaired claimants.
Judges have also weighed in on this issue. Most notably, in a scathing June 2005 ruling, Janis Graham Jack, a U.S. District Court judge for the Southern District of Texas, excoriated certain plaintiffs' lawyers, doctors and medical screeners for techniques used to bring thousands of new and often-dubious asbestos- and silica-related claims to court. "These diagnoses were driven by neither health nor justice; they were manufactured for money," she wrote in her 249-page decision.
Jack described in detail a ludicrous process that would magically uncover thousands of cases by setting up mobile testing centers in random parking lots. "A golfer is more likely to hit a hole-in-one than an occupational medicine specialist is to find a single case of both silicosis and asbestosis," she wrote. Yet supposed independent screeners "parked a van in some parking lots and found over 4,000 such cases."
The effect of all this combination of legislative and judicial review has been a dramatic decline in the number of new unimpaired claimants. "There has been a sea change," Heiman says.
According to one estimate, by 2001, there were 400,000 individual claimants and as many as 8 million claims. ("A typical claimant files claims against approximately 20 defendants," wrote Michelle White, a University of California, San Diego, economist in a 2002 paper.) In 2001 and 2002, there were upwards of 80,000 new claimants annually, according to another estimate. The number of new claimants fell to about 5,000 last year. "It's much more difficult for the [lawyers of] unimpaired or nonsick to prosecute claims," says Rosenthal. "It's less and less profitable to file unimpaired claims," so lawyers recruit fewer unimpaired claimants. "It's not worth the money."
Add to this trust administration, which is getting better, as Ramsey puts it, "insuring appropriate procedures for the people who deserve to be paid from the trust and paid promptly."
Another factor in the resolution of bankruptcy cases was the collapse in February 2006 of federal asbestos-related legislation, which had been years on the docket. As last crafted, the law would have established a $140 billion trust fund for victims in return for toughened criteria for claimants. When the legislation appeared on track, several companies refused to settle, thinking they could get a better deal by waiting it out and becoming part of the overall pool. After the bill died, there was greater incentive to settle. While many companies used their time in bankruptcy to build up cash reserves, refinance debt and clean up other liabilities, being in Chapter 11 limited activities, especially those companies interested in selling themselves or their assets off.
Bankruptcy lawyers themselves have learned to work around the limitations of 524(g), and some of the more recent success among practitioners reflects a better attuned, more collegial and less divisive effort. "We've all learned a lot along the way, how to work together," says Laura Davis Jones, a Wilmington, Del.-based partner at Pachulski Stang Ziehl Young Jones & Weintraub LLP and a veteran debtor counsel in numerous asbestos-related bankruptcies.
All this has led to resolution. "Companies saw the handwriting on the wall," Rosenthal says.
That was certainly the case with USG, whose $6 billion settlement last year combined cash, shares and insurance proceeds. Had asbestos legislation passed Congress, USG's share of the pool might have been $2 billion less.
Even so, the settlement is widely considered a success. "Everybody was satisfied. Everybody got a great result," says Heiman, who acted as debtor counsel, and who may, admittedly, be biased. Bank and trade "creditors got paid in full, plus five-year's interest, and shareholders retained all their interest." Asbestos victims also received 100% of their claims.
Part of that settlement, says Heiman, reflects the strengthening of Chicago-based USG, a major manufacturer of building materials, while in bankruptcy. Profit margins widened. The company's cash grew significantly. "For the USGs of the world, it wasn't only asbestos," says Rosenthal. "They used the case effectively to deal with other unfavorable financial arrangements. Plus, they're not paying legal expenses [involved in litigation], so they can deliver the same product at a lower cost."
USG's bankruptcy took five years to play out, during which victims got nothing. It was a protracted and often-contentious fight. "Had we known it would take so long, would we have filed?" Heiman asks rhetorically. "I'm not sure. But that five years proved very useful to the company."
Despite the success of USG and Halliburton, certain companies remain obstinate about what they will offer up to settle a bankruptcy. Grace, for example, rejects what has become the standard formula for assessing liability through the use of outside experts and formulas and insists it is liable for only a fraction of pending claims. The company has embarked on its own estimation procedure, which is both lengthy and hugely expensive.
One lawyer believes it boils down to a simple formula: Grace won't agree to anything that would dilute shareholder equity. The disconnect is striking. In the vast majority of Chapter 11 cases, equity holders lose everything. Meanwhile, in the Grace case, cancer victims get nothing. "Present claimants have not been paid in the six years since Grace filed," says Frankel. "It's an example of where the result has not turned out well."
Pittsburgh-Corning Corp. is another example. Parent PPG Industries Inc. tried to push through a plan that would absolve it not only of liabilities because of Pittsburgh-Corning, but of liabilities PPG had picked up on its own. Fitzgerald shot down that approach and nixed the reorganization plan. "The judge said, 'You can't do this,' " says Steven Kazan, whose Oakland, Calif.-based law firm, Kazan, McClain, Abrams, Fernandez, Lyons, Farrise & Greenwood PLC specializes in representing mesothelioma and asbestosis victims. "It was clear to everyone that Pittsburgh-Corning was doomed, with the parents trying to get a free ride."
The debtor asked the judge to reconsider. Assuming she doesn't reverse herself, the question now is whether various parties will negotiate a settlement quickly. Kazan isn't hopeful. "Now there will be another two to three years and God knows how many millions in court costs."
When it filed for Chapter 11 in December 2003, Congoleum touted its effort as a prepackaged bankruptcy. Instead, Congoleum provided an almost steady stream of miscues. Among other gaffes, the flooring materials manufacturer hired as adviser a firm that also represented asbestos claimants in the same case.
In January, Kathryn Ferguson, a U.S. bankruptcy judge in New Jersey, knocked back Congoleum's 11th effort to craft a reorganization. Practice didn't make perfect. That effort was rife with blatant loopholes and inequities. (The judge noted, among other problems, that mesothelioma victims would receive 5% of what similar victims negotiated with the company prepetition.) In addition to insurance coverage, the company offered a paltry $2.7 million promissory note. Congoleum's parent, American Biltrite Inc., would throw in $250,000 in cash. Congoleum also offered 3.8 million new shares to the trust, but only if bondholders voted their approval. If they didn't, bondholders and the trust would share. The exasperated judge pointed out that she couldn't even determine exactly what percentage of the reconstituted company those shares represented ? 22%, 31.5% or 67.5%.
What's more, Congoleum attempted to circumvent a provision within 524(g) that mandates a majority of shares in the reorganized company be pledged to the victims' trust or delineate certain contingencies that would trigger the transfer of those shares to the trust. In Congoleum's proposal, the only possible way the company could have defaulted on its promissory note is if the company was worthless. "There is no plausible scenario in which the plan trust would be able to convert the shares when they were still valuable," wrote Ferguson. "The debtors are freeing themselves of what they describe as crushing asbestos liability while offering what appears to be little more than insurance proceeds in return."
"It's a mess," says one lawyer not involved in the case.
While dynamics vary from case to case, the more successful reorganizations tend to be those companies whose health is fundamentally sound, with the exception of the asbestos overhang. The thinking goes something like this: Get rid of the liabilities once and for all, and the stock market will reward you. That certainly was the case in Halliburton.
Halliburton has no one to blame but itself for its asbestos-related liabilities. The company, then run by Vice President Dick Cheney, spent $7.7 billion acquiring Dresser Industries Inc. in 1998, knowing that the companies faced asbestos lawsuits.
Federal-Mogul has a similar history. It bought asbestos-laden companies in the belief that they were discounted more than potential liabilities would cost. Federal-Mogul, for example, acquired the publicly traded building supplies company T&N Ltd. in 1997. It was Britain's largest asbestos manufacturer and was being hammered by asbestos-related litigation. The strategy was disastrous on all counts. Federal-Mogul piled on billions of dollars in debt for acquisitions that turned out to be sinkholes of liabilities. Before the company went bankrupt, it spent more than $700 million settling more than 300,000 claims. "Federal-Mogul thought it had the magic formula for asbestos liabilities, buying companies no one else would buy," says Rosenthal. "They totally underestimated the claims."
The Federal-Mogul reorganization has an added twist. Under the plan, the victims get a tad more than half of the stock in the reorganized company. Carl Icahn, who owns a significant portion of the company's unsecured debt, also has an option under the reorganization plan to acquire from the asbestos victims' trust all the stock, save for 13% earmarked for U.K. victims. If he exercises his option, Icahn would pay $375 million in cash and $400 million in a note.
Not that Federal-Mogul is a model of bankruptcy efficiency. "Did you know the English manager billed more than was set aside for all British victims?" Kazan asks.
In his typically outspoken manner, Kazan begins a conversation about asbestos and bankruptcy by railing against some of the best-known debtor counsels, those in the plaintiffs' bar who have grown rich by representing unimpaired victims and the universe of professionals who have attached themselves to the bankruptcy cases. "Fee applications are so depressing, I stopped reading them," he says. "The amount of money spent is outrageous ? it's insane."
But even Kazan returns to the nonbankruptcy alternatives, which for years, he characterizes as "a race to the courthouse" pitting the very sick against a multitude of others. Some of the sickest victims, the kind he represents, could find themselves in line for trial for years. They may never live to see settlements.
"Bankruptcies suck. By definition, no one gets paid what he's owed," he says, then concedes that a few of the more recent reorganizations represent "the best of a bad situation."
That is something of an achievement all by itself.
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# A 64 year old gentleman from Buffalo, New York was diagnosed with pleural malignant mesothelioma in early 1998. He underwent the extra-pleural pneumonectomy by Dr. Sugarbaker, followed by three (3) chemotherapy and fifteen (15) radiation treatments in July of 1998. In September, doctors discovered the mesothelioma had spread to his healthy lung. He was given two (2) months to live. He learned of the IAT clinic from his neighbor and traveled to the Bahamas in December. "I should be dead! But here I am! I feel good and I plan on feeling good for a long time."
# A 77 year old gentleman, also from Buffalo, was diagnosed with pleural malignant mesothelioma in September of 1997. He was offered no treatment and given radiation only to the biopsy wound. His family researched the Internet and local libraries in search of alternative treatments. They discovered the IAT clinic while reading about alternative therapies in a book. He traveled to the Bahamas in September of 1998. "I had to quit working because of the mesothelioma. All my life I got up in the morning and went to work." After going to the IAT clinic, he no longer gets tired "just sitting around." He is able to walk his dog, pull weeds in his yard and, as he puts it -- he has been blessed with the privilege of living.
# Cori Harth was first diagnosed with malignant mesothelioma in 1997 at the age of 49. She is continuing to live a strong and active life. "Having been told I probably would not make it to my 50th birthday, and having celebrated my 51st in the Bahamas doing fantastic, I have ample reason to be very thankful. The mesothelioma is no doubt still "there", but between the laetrile and IAT and stem cell, plus continuing my usual juicing, vitamins and minerals, regular exercise, as well as a good attitude, faith and prayer, my immune system is giving the tumor one heck of a run for its money!!!! All I can say is that it is not anecdotal - they treat many different types of cancers there, and believe me, all you would have to do is spend some hours in the clinic talking to patients from all walks of life. And Dr. Clement is totally open to having anyone talk to the patients, and most patients are happy to do so."
# Two men, ages 45 and 38 respectively, who suffered from peritoneal mesothelioma. Both were diagnosed in 1980. The 45 year old underwent conventional chemotherapy (cytoxan, adriamyein, etc.) prior to arriving at the IAT Clinic. The 38 year old had several of the tumors surgically removed. Both started receiving sera treatment in 1980. As of 1988, both reportedly "were in good health." The brochure is undated.
# A 79 year old liver cancer patient from Minnesota who was diagnosed over one year ago. He joked: "I look pretty good for being dead. My doctors gave me six weeks to live. I've been to more places and seen more things than most people, but I was not ready to give up." This patient learned of the clinic from a friend of his ex-wife.
# A 50 year old breast cancer patient from the East Coast. She was diagnosed two years ago. Her doctors gave her no hope for a cure. She learned of the IAT clinic through her veterinarian. We met a 65 year old prostate cancer patient from Colorado who diagnosed in 1990. His urologist told him of the clinic. He is doing very well.
# An 80 year old breast cancer patient from New York. She was diagnosed five years ago and underwent several chemotherapy treatments. Her doctors told her she was to begin radiation treatments as soon as she "got her health back." She did not wait and traveled to the clinic. Now, she is "too busy with my life to find time to play golf, which I love!"
# A 50 year old breast cancer patient from Huntsville, Alabama. She was first diagnosed in 1981 and was told of the clinic by a friend who was being treated for brain cancer. She stopped taking the treatments in 1991. In 1994, she was diagnosed with liver cancer and offered the same conventional treatment as was offered by her doctors in 1981. She went back to the clinic and resumed taking the sera. Today, she is active and leading a "normal" life.
# A 60 year old leukemia patient from New York. She was diagnosed in the early 1970's. In fact, she was the third patient ever treated with the sera by Dr. Burton.
# A doctor from Scotland who is in complete remission after being diagnosed fifteen (15) years ago. A doctor from St. Louis, Missouri was diagnosed with colon cancer eight (8) years ago, a doctor from Seattle, Washington diagnosed with prostate cancer nine (9) years ago. Each was advised by their personal doctors that their tumors were beyond the reach of conventional medicine.
Nowak AK, Lake RA, Kindler HL, Robinson BW. New approaches for mesothelioma: biologics, vaccines, gene therapy, and other novel agents. Semin Oncol. 2002 Feb;29(1):82-96.
University Department of Medicine, University of Western Australia, Verdun St Nedlands, Australia.
Although malignant mesothelioma is not a classically immunogenic cancer, there is abundant evidence for immune recognition. The relative ease of obtaining tumor tissue makes mesothelioma ideal for studying surrogate biomarkers such as lymphocytic infiltration or expression of transduced genes. There is evidence that malignant mesothelioma patients as well as asbestos-exposed persons without mesothelioma have impaired immune responsiveness. Substantial progress has been made in animal models using several biological and immunological techniques, but clinical application has been problematic. Systems studied have included lysis by interleukin-2 (IL-2)-activated lymphokine-activated killer (LAK) cells, tumor necrosis factor-alpha (TNF-alpha), a p16-expressing adenovirus vector, suicide gene therapy using the herpes simplex virus-tyrosine kinase (HSV-tk) followed by ganciclovir, and immunomodulatory gene therapy with IL-2, IL-4, interferon-gamma (IFN-gamma), IFN-alpha, TNF-alpha, granulocyte-macrophage colony-stimulating factor (GM-CSF), IL-6, and IL-1beta transfected into tumors. Vaccinia virus has been studied as a vector for cytokine gene transfer. Suicide gene therapy has been combined with a tumor vaccine. The University of Western Australia is initiating a pilot study of autologous vaccination in malignant mesothelioma. Novel agents under study include the angiogenesis inhibitors SU5416, bevacizumab, and thalidomide. ZD1839, an orally administered, highly selective inhibitor of the epidermal growth factor receptor (EGFR) tyrosine kinase, is being tested in a phase II trial. Since platelet-derived growth factor (PDGF) is thought to be an autocrine growth factor for mesothelioma STI-571 (Gleevec; Novartis, Basel, Switzerland), a highly selective inhibitor of the PDGF receptor tyrosine kinase, is being tested in a phase II trial. The development of more active cytotoxic combinations in this disease should facilitate further studies of chemoimmunotherapy. It seems likely that no single treatment modality will be effective by itself. Copyright 2002 by W.B. Saunders Company.
Eradication of intraperitoneal and distant tumor by adenovirus-mediated interferon-beta gene therapy is attributable to induction of systemic immunity. Cancer Res. 2001 Aug 15;61(16):6201-12.
Odaka M, Sterman DH, Wiewrodt R, Zhang Y, Kiefer M, Amin KM, Gao GP, Wilson JM, Barsoum J, Kaiser LR, Albelda SM. Thoracic Oncology Research Laboratory, Division of Pulmonary, Allergy, and Critical Care Medicine, University of Pennsylvania Medical Center, Philadelphia, Pennsylvania 19104, USA.
Malignant mesothelioma remains an incurable disease for which immune-modulatory therapies, such as exogenous cytokines, have shown some promise. One such cytokine, IFN-beta, has potent antiproliferative and immunostimulatory activity in vitro, but its in vivo use has been limited by toxicity. We thus conducted studies evaluating intracavitary delivery of a replication-deficient adenoviral (Ad) vector encoding for the murine IFN-beta gene (Ad.muIFN-beta) in mouse models of malignant mesothelioma. In contrast to multiple injections of recombinant protein, a single i.p. injection of Ad.muIFN-beta into animals with established tumors elicited remarkable antitumor activity leading to long-term survival in >90% of animals bearing either AB12 or AC29 i.p. mesotheliomas. A control adenovirus vector had minimal antitumor effect in vivo. Significant therapeutic effects were also seen in animals treated with large tumor burdens. Importantly, treatment of i.p. tumor also led to reduction of growth in tumors established at a distant site (flank). A number of experiments suggested that these effects were attributable to an acquired CD8(+) T-cell-mediated response including: (a) the induction of long-lasting antitumor immunity; (b) loss of efficacy of Ad.muIFN-beta in tumor-bearing, immune-deficient (SCID, SCID/beige) mice; (c) detection of high levels of specific antitumor cytolytic activity from unstimulated splenocytes harvested from Ad.muIFN-beta-treated animals that was abolished by CD8(+) T-cell depletion; and (d) abrogation of antitumor effects of Ad.muIFN-beta in tumor-bearing CD8(+) T-cell-depleted animals. These data show that intracavitary IFN-beta gene therapy using an adenoviral vector provides strong CD8(+) T-cell-mediated antitumor effects in murine models of mesothelioma and suggest that this may be a promising strategy for the treatment of localized tumors such as mesothelioma or ovarian cancer in humans.
# A 77 year old gentleman, also from Buffalo, was diagnosed with pleural malignant mesothelioma in September of 1997. He was offered no treatment and given radiation only to the biopsy wound. His family researched the Internet and local libraries in search of alternative treatments. They discovered the IAT clinic while reading about alternative therapies in a book. He traveled to the Bahamas in September of 1998. "I had to quit working because of the mesothelioma. All my life I got up in the morning and went to work." After going to the IAT clinic, he no longer gets tired "just sitting around." He is able to walk his dog, pull weeds in his yard and, as he puts it -- he has been blessed with the privilege of living.
# Cori Harth was first diagnosed with malignant mesothelioma in 1997 at the age of 49. She is continuing to live a strong and active life. "Having been told I probably would not make it to my 50th birthday, and having celebrated my 51st in the Bahamas doing fantastic, I have ample reason to be very thankful. The mesothelioma is no doubt still "there", but between the laetrile and IAT and stem cell, plus continuing my usual juicing, vitamins and minerals, regular exercise, as well as a good attitude, faith and prayer, my immune system is giving the tumor one heck of a run for its money!!!! All I can say is that it is not anecdotal - they treat many different types of cancers there, and believe me, all you would have to do is spend some hours in the clinic talking to patients from all walks of life. And Dr. Clement is totally open to having anyone talk to the patients, and most patients are happy to do so."
# Two men, ages 45 and 38 respectively, who suffered from peritoneal mesothelioma. Both were diagnosed in 1980. The 45 year old underwent conventional chemotherapy (cytoxan, adriamyein, etc.) prior to arriving at the IAT Clinic. The 38 year old had several of the tumors surgically removed. Both started receiving sera treatment in 1980. As of 1988, both reportedly "were in good health." The brochure is undated.
# A 79 year old liver cancer patient from Minnesota who was diagnosed over one year ago. He joked: "I look pretty good for being dead. My doctors gave me six weeks to live. I've been to more places and seen more things than most people, but I was not ready to give up." This patient learned of the clinic from a friend of his ex-wife.
# A 50 year old breast cancer patient from the East Coast. She was diagnosed two years ago. Her doctors gave her no hope for a cure. She learned of the IAT clinic through her veterinarian. We met a 65 year old prostate cancer patient from Colorado who diagnosed in 1990. His urologist told him of the clinic. He is doing very well.
# An 80 year old breast cancer patient from New York. She was diagnosed five years ago and underwent several chemotherapy treatments. Her doctors told her she was to begin radiation treatments as soon as she "got her health back." She did not wait and traveled to the clinic. Now, she is "too busy with my life to find time to play golf, which I love!"
# A 50 year old breast cancer patient from Huntsville, Alabama. She was first diagnosed in 1981 and was told of the clinic by a friend who was being treated for brain cancer. She stopped taking the treatments in 1991. In 1994, she was diagnosed with liver cancer and offered the same conventional treatment as was offered by her doctors in 1981. She went back to the clinic and resumed taking the sera. Today, she is active and leading a "normal" life.
# A 60 year old leukemia patient from New York. She was diagnosed in the early 1970's. In fact, she was the third patient ever treated with the sera by Dr. Burton.
# A doctor from Scotland who is in complete remission after being diagnosed fifteen (15) years ago. A doctor from St. Louis, Missouri was diagnosed with colon cancer eight (8) years ago, a doctor from Seattle, Washington diagnosed with prostate cancer nine (9) years ago. Each was advised by their personal doctors that their tumors were beyond the reach of conventional medicine.
Nowak AK, Lake RA, Kindler HL, Robinson BW. New approaches for mesothelioma: biologics, vaccines, gene therapy, and other novel agents. Semin Oncol. 2002 Feb;29(1):82-96.
University Department of Medicine, University of Western Australia, Verdun St Nedlands, Australia.
Although malignant mesothelioma is not a classically immunogenic cancer, there is abundant evidence for immune recognition. The relative ease of obtaining tumor tissue makes mesothelioma ideal for studying surrogate biomarkers such as lymphocytic infiltration or expression of transduced genes. There is evidence that malignant mesothelioma patients as well as asbestos-exposed persons without mesothelioma have impaired immune responsiveness. Substantial progress has been made in animal models using several biological and immunological techniques, but clinical application has been problematic. Systems studied have included lysis by interleukin-2 (IL-2)-activated lymphokine-activated killer (LAK) cells, tumor necrosis factor-alpha (TNF-alpha), a p16-expressing adenovirus vector, suicide gene therapy using the herpes simplex virus-tyrosine kinase (HSV-tk) followed by ganciclovir, and immunomodulatory gene therapy with IL-2, IL-4, interferon-gamma (IFN-gamma), IFN-alpha, TNF-alpha, granulocyte-macrophage colony-stimulating factor (GM-CSF), IL-6, and IL-1beta transfected into tumors. Vaccinia virus has been studied as a vector for cytokine gene transfer. Suicide gene therapy has been combined with a tumor vaccine. The University of Western Australia is initiating a pilot study of autologous vaccination in malignant mesothelioma. Novel agents under study include the angiogenesis inhibitors SU5416, bevacizumab, and thalidomide. ZD1839, an orally administered, highly selective inhibitor of the epidermal growth factor receptor (EGFR) tyrosine kinase, is being tested in a phase II trial. Since platelet-derived growth factor (PDGF) is thought to be an autocrine growth factor for mesothelioma STI-571 (Gleevec; Novartis, Basel, Switzerland), a highly selective inhibitor of the PDGF receptor tyrosine kinase, is being tested in a phase II trial. The development of more active cytotoxic combinations in this disease should facilitate further studies of chemoimmunotherapy. It seems likely that no single treatment modality will be effective by itself. Copyright 2002 by W.B. Saunders Company.
Eradication of intraperitoneal and distant tumor by adenovirus-mediated interferon-beta gene therapy is attributable to induction of systemic immunity. Cancer Res. 2001 Aug 15;61(16):6201-12.
Odaka M, Sterman DH, Wiewrodt R, Zhang Y, Kiefer M, Amin KM, Gao GP, Wilson JM, Barsoum J, Kaiser LR, Albelda SM. Thoracic Oncology Research Laboratory, Division of Pulmonary, Allergy, and Critical Care Medicine, University of Pennsylvania Medical Center, Philadelphia, Pennsylvania 19104, USA.
Malignant mesothelioma remains an incurable disease for which immune-modulatory therapies, such as exogenous cytokines, have shown some promise. One such cytokine, IFN-beta, has potent antiproliferative and immunostimulatory activity in vitro, but its in vivo use has been limited by toxicity. We thus conducted studies evaluating intracavitary delivery of a replication-deficient adenoviral (Ad) vector encoding for the murine IFN-beta gene (Ad.muIFN-beta) in mouse models of malignant mesothelioma. In contrast to multiple injections of recombinant protein, a single i.p. injection of Ad.muIFN-beta into animals with established tumors elicited remarkable antitumor activity leading to long-term survival in >90% of animals bearing either AB12 or AC29 i.p. mesotheliomas. A control adenovirus vector had minimal antitumor effect in vivo. Significant therapeutic effects were also seen in animals treated with large tumor burdens. Importantly, treatment of i.p. tumor also led to reduction of growth in tumors established at a distant site (flank). A number of experiments suggested that these effects were attributable to an acquired CD8(+) T-cell-mediated response including: (a) the induction of long-lasting antitumor immunity; (b) loss of efficacy of Ad.muIFN-beta in tumor-bearing, immune-deficient (SCID, SCID/beige) mice; (c) detection of high levels of specific antitumor cytolytic activity from unstimulated splenocytes harvested from Ad.muIFN-beta-treated animals that was abolished by CD8(+) T-cell depletion; and (d) abrogation of antitumor effects of Ad.muIFN-beta in tumor-bearing CD8(+) T-cell-depleted animals. These data show that intracavitary IFN-beta gene therapy using an adenoviral vector provides strong CD8(+) T-cell-mediated antitumor effects in murine models of mesothelioma and suggest that this may be a promising strategy for the treatment of localized tumors such as mesothelioma or ovarian cancer in humans.
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Mesothelioma is a malignancy of either the pleura (the membrane that separates the rib cage from the outer surface of the lungs) or the peritoneum (the membrane that surrounds the abdominal cavity). Mesothelioma’s principal cause is exposure to asbestos.
The vast majority of mesotheliomas diagnosed in the United States are caused by asbestos exposure. Besides the severity of the disease, however, there is another significant difference between mesothelioma and the other asbestos-related diseases that have, historically, been the basis of most of the asbestos personal injury litigation in this country, namely asbestosis, pleural scarring and lung cancer. That difference can be called, for lack of better terminology, the exposure threshold. The other diseases, whose victims have generally made up the bulk of asbestos lawsuit plaintiffs, generally do not occur in the absence of relatively high “occupational” doses of exposure.
In other words, those are diseases that occur in people who were employed in shipbuilding, construction trades, or workers in factories that made asbestos-containing products. While these workers also contract mesothelioma at a rate many times that of general population, mesothelioma asbestos cancer is unique among asbestos-related diseases in that it can be caused by extremely low doses of exposure. It is, therefore, occurring at an increasing rate among people whose only exposure to asbestos was light or intermittent — the person may not be aware they were ever exposed.
The “next wave” of mesothelioma victims are people whose only exposure to asbestos may have been to work in or live in a building that had previously installed asbestos fireproofing or insulation present. These cases can be difficult to prosecute against the asbestos industry, because it is much tougher to establish the identity of the asbestos product to which the person was exposed. It can, however, be done in many cases if the proper effort is put into the investigation.
The vast majority of mesotheliomas diagnosed in the United States are caused by asbestos exposure. Besides the severity of the disease, however, there is another significant difference between mesothelioma and the other asbestos-related diseases that have, historically, been the basis of most of the asbestos personal injury litigation in this country, namely asbestosis, pleural scarring and lung cancer. That difference can be called, for lack of better terminology, the exposure threshold. The other diseases, whose victims have generally made up the bulk of asbestos lawsuit plaintiffs, generally do not occur in the absence of relatively high “occupational” doses of exposure.
In other words, those are diseases that occur in people who were employed in shipbuilding, construction trades, or workers in factories that made asbestos-containing products. While these workers also contract mesothelioma at a rate many times that of general population, mesothelioma asbestos cancer is unique among asbestos-related diseases in that it can be caused by extremely low doses of exposure. It is, therefore, occurring at an increasing rate among people whose only exposure to asbestos was light or intermittent — the person may not be aware they were ever exposed.
The “next wave” of mesothelioma victims are people whose only exposure to asbestos may have been to work in or live in a building that had previously installed asbestos fireproofing or insulation present. These cases can be difficult to prosecute against the asbestos industry, because it is much tougher to establish the identity of the asbestos product to which the person was exposed. It can, however, be done in many cases if the proper effort is put into the investigation.
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Webster’s Dictionary (1984 Edition) defines asbestos as “a fire-resistant, fibrous mineral used in fireproofing, electrical insulation, etc.”
Before asbestos became associated with disease in the public’s mind, most people thought of asbestos as something fireproof. This manifested itself in the popular culture from time to time. Mad magazine, for example, once featured the omnipresent Alfred E. Newman in the character of the Roman emperor Nero, with the epitaph: “sold asbestos togas while Rome burned.” This was in the late 1950s. A popular item for outdoor chefs in suburbia was a pair of asbestos barbecue mittens, and many homes had ironing boards with asbestos covers. In fact, that suburban home may also have had shingles and siding that were reinforced with asbestos, floor tiles with asbestos, a heating system and boiler insulated with asbestos, asbestos-containing acoustical plaster, wallboard and joint compound in the walls, and so forth. The cars in the garage would have had asbestos coated brake linings, and, if they had stick shifts, asbestos coated clutch surfaces. The water from the municipal water supply might have come through concrete pipes reinforced with asbestos. That is just some of the “etc.” from the dictionary definition quoted at the left. Most people did not (and still don’t) think of asbestos in these ways — if they thought about it at all they thought of the barbecue mittens.
To put it as plainly as possible, asbestos is a rock. That is where its “fireproof” quality comes from (just try to build a fire with rocks and see what happens). Like most rocks, its molecular structure is that of a crystal, like quartz and many other minerals. These crystalline minerals have a curious property — they fracture along the lines of the shape of the crystal. Quartz, for example, has a crystalline structure that is a cube. If you have big cube of quartz, and you bang it the right way with a hammer, it will fracture into four identical little cubes. Mica, another mineral, fractures into sheets which can actually be pried off with the blade of a knife. The molecular (crystalline) structure of asbestos is that of a fiber. If you pound asbestos fibers hard enough, they break down into narrower, thinner fibers. The fibers are also flexible. There is one other critical characteristic of asbestos — a result of it being a rock that is found in natural deposits in the ground — it is free. Of course, you have to dig it up and process it and all that, but its cost is very low, especially when compared to synthetic substitutes like fiberglass or rockwool (which are made by heating the glass or rock to a very high point so it turns into a thin liquid, and then blowing air through it — this is the way cotton candy is made, too; just look inside the cotton candy machine the next time you go the movies).
There are three types of asbestos fiber that have had commercial uses in this country: chrysotile, amosite and crocidolite. Chrysotile fibers are fundamentally different from the other two. Chrysotile fibers are called serpentine, because of certain characteristics they have. Amosite and crocidolite (and other mineral fibers, such as tremolite) are called amphiboles. Amphibole fibers are long, straight and rigid. Most of the amphibole fiber (the vast majority of it was amosite) used in the United States came from South Africa (some crocidolite also came from Australia). Mines in Quebec, Canada, supplied the chrysotile fiber used in the United States, except for a single mine in Vermont.
There is a body of medical opinion to the effect that amphibole fibers are more likely than chrysotile to cause mesothelioma. This is the foundation of what is known as the “fiber defense” in mesothelioma cases, used by certain companies whose products only contained chrysotile fiber. There is another body of medical opinion to the effect that all fiber types are carcinogenic and that all are implicated in mesothelioma.
The main usefulness of asbestos to industry is that it consists of essentially indestructible fibers. It is not, in fact, a particularly good insulator. What it does is give tensile strength to substances that are. This can be illustrated by looking at the use of steel-reinforced concrete in construction. Concrete has poor tensile strength. If you make a long, thin object out of concrete, it will break very easily. Concrete has what is called compression strength — a cube of solid concrete can support tremendous weight without breaking or flexing. Steel, on the other hand, has great tensile strength. That is why we make tools out of it. Its compression strength, however, is not that great, because it can flex, and will soften and melt when heated (that is why we can work with it). This is why, when you see a large building going up, the foundation will be made of concrete, and the frame will be made of steel.
Many applications, like bridges, pipelines and certain types of buildings (e.g., parking garages) or foundations on soft, swampy ground, require the use of something that has both tensile and compression strength. The substance that is used is steel-reinforced concrete. A structure of steel reinforcing rods (called “rebar”) is assembled, and the concrete is poured over it. When the concrete sets up, the resulting structure will be made of what looks like concrete, but it will be strong because it has steel rods inside it, supporting its structure and giving it tensile strength.
This is the same function performed by asbestos fibers in many of the products into which they were incorporated. Much pipe and boiler insulation, for example, was made out of magnesia at one time. Magnesia is an excellent insulator, but it is very brittle and crumbles easily, so you cannot make pre-molded pipe insulation out of pure magnesia. If, however, you mix asbestos fibers into the liquid magnesia, and then mold it, you will have a product that holds together and won’t break up so easily. This characteristic, in industrial parlance, is called handleability. The product was known as “85% Magnesia” or, in the field, “85 mag.” When calcium silicate gradually replaced magnesia as the preferred high temperature insulation in the 1950s, asbestos was again used to reinforce the product, in the same way, and for the same reason. Asbestos also has the advantage of not being affected by the high temperatures generated by some of the manufacturing processes involved (for more on this, see the Owens-Corning article).
Asbestos was also used as a reinforcing fiber in wallboard, siding, roofing shingles, gaskets, floor tiles and countless other products. It was used for its heat resistance in brake linings and other friction products, as well as in high-temperature applications like boiler cements. The list goes on. At one time every eighth grade science lab in the country had little asbestos squares for the students to put gas burners on. This is why there is so much asbestos exposure in our post-war industrial society, and why many mesothelioma patients say they were never exposed to asbestos — they are still thinking of the barbecue mitts.
Before asbestos became associated with disease in the public’s mind, most people thought of asbestos as something fireproof. This manifested itself in the popular culture from time to time. Mad magazine, for example, once featured the omnipresent Alfred E. Newman in the character of the Roman emperor Nero, with the epitaph: “sold asbestos togas while Rome burned.” This was in the late 1950s. A popular item for outdoor chefs in suburbia was a pair of asbestos barbecue mittens, and many homes had ironing boards with asbestos covers. In fact, that suburban home may also have had shingles and siding that were reinforced with asbestos, floor tiles with asbestos, a heating system and boiler insulated with asbestos, asbestos-containing acoustical plaster, wallboard and joint compound in the walls, and so forth. The cars in the garage would have had asbestos coated brake linings, and, if they had stick shifts, asbestos coated clutch surfaces. The water from the municipal water supply might have come through concrete pipes reinforced with asbestos. That is just some of the “etc.” from the dictionary definition quoted at the left. Most people did not (and still don’t) think of asbestos in these ways — if they thought about it at all they thought of the barbecue mittens.
To put it as plainly as possible, asbestos is a rock. That is where its “fireproof” quality comes from (just try to build a fire with rocks and see what happens). Like most rocks, its molecular structure is that of a crystal, like quartz and many other minerals. These crystalline minerals have a curious property — they fracture along the lines of the shape of the crystal. Quartz, for example, has a crystalline structure that is a cube. If you have big cube of quartz, and you bang it the right way with a hammer, it will fracture into four identical little cubes. Mica, another mineral, fractures into sheets which can actually be pried off with the blade of a knife. The molecular (crystalline) structure of asbestos is that of a fiber. If you pound asbestos fibers hard enough, they break down into narrower, thinner fibers. The fibers are also flexible. There is one other critical characteristic of asbestos — a result of it being a rock that is found in natural deposits in the ground — it is free. Of course, you have to dig it up and process it and all that, but its cost is very low, especially when compared to synthetic substitutes like fiberglass or rockwool (which are made by heating the glass or rock to a very high point so it turns into a thin liquid, and then blowing air through it — this is the way cotton candy is made, too; just look inside the cotton candy machine the next time you go the movies).
There are three types of asbestos fiber that have had commercial uses in this country: chrysotile, amosite and crocidolite. Chrysotile fibers are fundamentally different from the other two. Chrysotile fibers are called serpentine, because of certain characteristics they have. Amosite and crocidolite (and other mineral fibers, such as tremolite) are called amphiboles. Amphibole fibers are long, straight and rigid. Most of the amphibole fiber (the vast majority of it was amosite) used in the United States came from South Africa (some crocidolite also came from Australia). Mines in Quebec, Canada, supplied the chrysotile fiber used in the United States, except for a single mine in Vermont.
There is a body of medical opinion to the effect that amphibole fibers are more likely than chrysotile to cause mesothelioma. This is the foundation of what is known as the “fiber defense” in mesothelioma cases, used by certain companies whose products only contained chrysotile fiber. There is another body of medical opinion to the effect that all fiber types are carcinogenic and that all are implicated in mesothelioma.
The main usefulness of asbestos to industry is that it consists of essentially indestructible fibers. It is not, in fact, a particularly good insulator. What it does is give tensile strength to substances that are. This can be illustrated by looking at the use of steel-reinforced concrete in construction. Concrete has poor tensile strength. If you make a long, thin object out of concrete, it will break very easily. Concrete has what is called compression strength — a cube of solid concrete can support tremendous weight without breaking or flexing. Steel, on the other hand, has great tensile strength. That is why we make tools out of it. Its compression strength, however, is not that great, because it can flex, and will soften and melt when heated (that is why we can work with it). This is why, when you see a large building going up, the foundation will be made of concrete, and the frame will be made of steel.
Many applications, like bridges, pipelines and certain types of buildings (e.g., parking garages) or foundations on soft, swampy ground, require the use of something that has both tensile and compression strength. The substance that is used is steel-reinforced concrete. A structure of steel reinforcing rods (called “rebar”) is assembled, and the concrete is poured over it. When the concrete sets up, the resulting structure will be made of what looks like concrete, but it will be strong because it has steel rods inside it, supporting its structure and giving it tensile strength.
This is the same function performed by asbestos fibers in many of the products into which they were incorporated. Much pipe and boiler insulation, for example, was made out of magnesia at one time. Magnesia is an excellent insulator, but it is very brittle and crumbles easily, so you cannot make pre-molded pipe insulation out of pure magnesia. If, however, you mix asbestos fibers into the liquid magnesia, and then mold it, you will have a product that holds together and won’t break up so easily. This characteristic, in industrial parlance, is called handleability. The product was known as “85% Magnesia” or, in the field, “85 mag.” When calcium silicate gradually replaced magnesia as the preferred high temperature insulation in the 1950s, asbestos was again used to reinforce the product, in the same way, and for the same reason. Asbestos also has the advantage of not being affected by the high temperatures generated by some of the manufacturing processes involved (for more on this, see the Owens-Corning article).
Asbestos was also used as a reinforcing fiber in wallboard, siding, roofing shingles, gaskets, floor tiles and countless other products. It was used for its heat resistance in brake linings and other friction products, as well as in high-temperature applications like boiler cements. The list goes on. At one time every eighth grade science lab in the country had little asbestos squares for the students to put gas burners on. This is why there is so much asbestos exposure in our post-war industrial society, and why many mesothelioma patients say they were never exposed to asbestos — they are still thinking of the barbecue mitts.
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* About 4,000 People die from Mesothelioma every year, the rare cancer caused by asbestos exposure.
* There are currently about 3000 new cases of Mesothelioma diagnosed per year, mostly in men over the age of 40.
* It is estimated that 27.5 million Americans were exposed to asbestos between 1940 and 1979.
* Mesothelioma has a latency period of 20 to 50 years after the first exposure to asbestos.
* It is estimated that there will be about 250,000 cases of Mesothelioma before 2020.
* Through 2003, more than 700,000 People have filed claims against more than 6,000 Asbestos companies. These same companies knew of the dangers for many years before ever warning the public of those risks.
* During the 20th century, some 30 million tons of asbestos were used in industrial sites, homes, schools, shipyards and commercial buildings in the United States.
* Many asbestos-containing products remain in buildings, ships, industrial facilities and other environments where the fibers can become airborne.
* Statistics from the National Cancer Institute show that around 3000 cases of this malignant mesothelioma are reported each year in the United States, and this figure is on the increase.
* It is thought that around eight million people in the United States have been exposed to asbestos over the past half a century, and many more cases - are expected to be reported in the next 25 years.
* The first known asbestos lawsuit was in 1929 in New Jersey.
* Over 2,100 people were diagnosed with mesothelioma in the UK in 2003.
* There are currently about 3000 new cases of Mesothelioma diagnosed per year, mostly in men over the age of 40.
* It is estimated that 27.5 million Americans were exposed to asbestos between 1940 and 1979.
* Mesothelioma has a latency period of 20 to 50 years after the first exposure to asbestos.
* It is estimated that there will be about 250,000 cases of Mesothelioma before 2020.
* Through 2003, more than 700,000 People have filed claims against more than 6,000 Asbestos companies. These same companies knew of the dangers for many years before ever warning the public of those risks.
* During the 20th century, some 30 million tons of asbestos were used in industrial sites, homes, schools, shipyards and commercial buildings in the United States.
* Many asbestos-containing products remain in buildings, ships, industrial facilities and other environments where the fibers can become airborne.
* Statistics from the National Cancer Institute show that around 3000 cases of this malignant mesothelioma are reported each year in the United States, and this figure is on the increase.
* It is thought that around eight million people in the United States have been exposed to asbestos over the past half a century, and many more cases - are expected to be reported in the next 25 years.
* The first known asbestos lawsuit was in 1929 in New Jersey.
* Over 2,100 people were diagnosed with mesothelioma in the UK in 2003.
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mesothelioma-some facts
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More than 110,000 schools in the U.S. still contain some form of asbestos.
Welcome to the Mesothelioma Treatment Help Center. We have helped many people get experienced legal and medical help for their mesothelioma cancer and asbestos cancer cases. We will actually walk you the process of contacting an experienced mesothelioma lawyer that we have worked with to get you the best possible settlement for your mesothelioma case.
Welcome to the Mesothelioma Treatment Help Center. We have helped many people get experienced legal and medical help for their mesothelioma cancer and asbestos cancer cases. We will actually walk you the process of contacting an experienced mesothelioma lawyer that we have worked with to get you the best possible settlement for your mesothelioma case.
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