Asbestos disease and compensation

Chapter 1
Asbestos disease and compensation

L’amianto era una cosa veramente subdola perché comunque sia non la si vede, magari non la si sente, però esiste, e adesso ultimamente una o due persone alla settimana muoiono tra i cittadini, tra gli ex-lavoratori. [Asbestos is a very sneaky thing: you can never see it, you can sometimes smell it, but it exists. Lately, one or two people have died every week among the residents of this town, among those who once worked with asbestos.] (Romana Blasotti)1

I grabbed his face and put it between my hands and said, “Honey, honey, honey!” I was screaming bloody murder, “Oh my God, he’s gone. He’s gone.” (Karen McQueen)2

Death in old age is inevitable, but death before old age is not. (Richard Doll)3

… toute la structure sociale est présente au coeur de l’interaction, sous la forme des schèmes de perception et d’appréciation inscrits dans le corps des agents en interaction. [The whole social structure is present at the heart of the interaction, in the form of schemes of perception and appreciation inscribed in bodies of the interacting agents.] (Pierre Bourdieu)4

Our problem is to work out a social organization which shall be efficient as possible without offending our notions of a satisfactory way of life. (John Maynard Keynes)5

… sans considérer que c’est toujours le mauvais côté, qui finit par l’emporter sur le côté beau. C’est le mauvais côté qui produit le mouvement qui fait l’histoire, en constituant la lute. [… irrespective of the fact that it is always the bad side that in the end triumphs over the good side. It is the bad side that produces the movement which makes history, by providing a struggle] (Karl Marx)6

Law and the dark side of industrialization

The poignant words of Romana Blasotti, a soft spoken 83-year-old woman and longtime resident of Casale Monferrato, a peaceful blue collar town in Piemonte in Northern Italy, set the stage for this book: the story of how victims of asbestos exposure have been compensated for injuries caused by this invisible killer. Ms. Blasotti lost her husband, her sister, her daughter, a nephew, and a cousin to asbestos.7 While Ms. Blasotti represents one of the most tragic accounts of how asbestos has killed throughout the years, her story is far from being unique. Victims throughout the world have been heard screaming “bloody murder” just like Karen McQueen did in San Antonio, Texas, after realizing that her beloved husband and father of two had just been killed by asbestos.8 Asbestos use has caused a global epidemic in which its deadly effects affected hundreds of communities, thousands of families, and tens of thousands of men and women throughout the world. Data on 82 countries published by the World Health Organization indicate that, from 1994 to 2010, 128,015 persons died of mesothelioma.9 An estimated 20,000 asbestos-related lung cancers and 10,000 cases of mesothelioma, an invariably deadly form of cancer, occur annually across the population of Western Europe, Scandinavia, North America, Japan, and Australia. The asbestos epidemic kills one person every two hours in the United States, one every four hours in the United Kingdom, three every day in Italy and Germany, two every day in France, Japan, and Australia, and one a day in the Netherlands.10

All these deaths were premature and certainly evitable, as Sir Richard Doll’s words suggest. Even worse: they were man-made because they were the result of the decision to use asbestos extensively in the course of the industrialization process that led to Fordist production of the twentieth century. Asbestos disease is a man-made epidemic and thus a social event, as Pierre Bourdieu argued, as it can be construed as an “inscription” of the social structure on human bodies. Indeed, the social structures that are involved in the making of this epidemic are primarily economic. It is capitalism with its inherent tension between profit and equity. Asbestos disease thus offers an opportunity to investigate the capitalist tension between profits and equity and resulting social struggle between victims and corporate powers. I am particularly interested in the mediating role of institutions and law. In fact, the rise of the asbestos epidemics has led to the emergence of an array of institutional mechanisms aimed at compensating the victims of the asbestos epidemic. While industrialized nations with experience of asbestos use have developed some form of asbestos compensation, norms, institutions, and procedures of asbestos compensation vary greatly across nations and across time.

This book presents a comparative study of the emergence and transformations of asbestos compensation in the past century in Belgium, England, Italy, and the United States. While grounded on an analysis of formal law, I construe and analyze these mechanisms as cultural responses to the rise of the asbestos epidemic. Legal redress for asbestos disease is seen as a social event, and more specifically a cultural practice that emerges from the cultural fabric of our societies and it contributes to its constitution. Engel and McCann defined a cultural approach to the study of law as emphasizing “the ways that legal practice is embedded within the larger framework of cultural norms, routines, and institutional relations.”11 This assumes that law is a cultural phenomenon. Throughout the book, asbestos compensation is thus understood as a set of cultural responses to the broader challenges of addressing risks generated by industrialization, its dark side, and assignments of responsibility, compensation, and obligation related to injury caused by exposure to asbestos. Framing asbestos compensation as a cultural phenomenon allows me to investigate and expose the deeper social tensions that compensation practices address, and in particular the tension between individual profits and social costs that is inherent to capitalism. Asbestos compensation emerged and developed as cultural response aiming to address this tension between efficiency and equity, or in Keynes’s words, as “a social organization” aimed to make our societies as “efficient as possible without offending our notions of a satisfactory way of life.” This book unfortunately shows that asbestos compensation failed to satisfactorily address the fundamental capitalist tension: compensation was bitterly contested, came too late, and did not include all victims of the asbestos epidemic. Furthermore, the individuals and organizations that significantly contributed to the emergence of the asbestos epidemic have for the most part escaped accountability. Asbestos disease is a dark side of industrialization that the laws of compensation failed to fully redress.

Asbestos is a naturally occurring mineral with such extraordinary insulating properties that, since the early days of its modern use, it was labeled as the “magical fiber.”12 Its remarkable insulating properties, as well as its abundant, relatively cheap availability and its adaptability, made this product an almost indispensable ingredient of industrialization. As a result of industrialists’ interest in the mineral, towards the end of nineteenth century, many asbestos mines were opened. A consortium of capitalists opened the Balangero mine in Northern Italy. Others looked at Québec and its vast reserves of chrysotile asbestos. In a matter of a few years, asbestos became available in large quantities and at a very reasonable cost. Other entrepreneurs processed asbestos fiber and created a brand new form of cement that was easy to install and allegedly indestructible when applied as a covering to boilers, steam pipes, hot blast furnaces, and stills. Others started traveling around the world, some to Russia and South Africa to purchase land that offered promising prospects of containing asbestos, and to Australia to set up pipe manufacturing plants. Even cities named after asbestos appeared on the map: Asbestos—a 7,000 resident town of Southeastern Québec, developed around the Jeffrey Mine, the world’s largest asbestos mine in the world (in 2005, Canada contributed 40 percent of the worldwide production of asbestos).13 Another example is Asbest City—a mining town in the Ural Mountains with a population of 71,000. The city continues to be the source of 25 percent of the chrysotile asbestos that is used worldwide.14

In a matter of a few decades, hundreds of applications were introduced, which propelled a flourishing industry.15 Asbestos truly became the “magical mineral” and contributed to the development of the industries that defined the economic growth that took industrial nations from the Second Industrial Revolution into the twentieth century. During these times, the remarkable insulating properties of asbestos were an essential ingredient of the widespread availability of electric power, internal combustion engines, and assembly lines. Insulating properties, versatility, and cheapness made asbestos a highly successful product, used in countless applications in countless industries: from shipbuilding to cars, from roofing to cigarette filters.

Unfortunately, the story of asbestos is not simply a tale of success: it is also a tragic story of death and suffering. In fact, it is now clear that asbestos is a highly toxic substance: exposure to asbestos fibers may cause various respiratory problems, eventually leading to death. A well-established body of medical evidence shows that asbestos may cause respiratory conditions, lung cancer, and mesothelioma—a rare and incurable form of cancer of the pleura and from which patients often die within a few months of diagnosis.16 Typically mesothelioma is diagnosed in victims who worked in asbestos mining but also in jobs in industries such as textiles, railroads, shipbuilding, car manufacturing, and construction. However, in recent years, victims are increasingly counted among “end-users often exposed when installing asbestos products or handling asbestos materials still in place (construction workers, electricians, plumbers, heating workers, etc.).”17 While pleural mesothelioma is a signature disease, the causes of lung cancer are various. Smoking in particular is responsible for a large proportion of cancers of the lung, and unfortunately many asbestos victims smoked during their lives. Attributing lung cancer to asbestos exposure is thus harder than in the case of mesothelioma.18

Besides the two forms of cancer discussed above, exposure to asbestos is also linked with other diseases of the lung. Among them, asbestosis occupies an important place. This chronic inflammatory and fibrotic medical condition affecting the tissue that surrounds the lungs is caused by the inhalation and retention of asbestos fibers and is dose dependent: the greater the cumulative dose, the higher the incidences of asbestosis. Asbestosis is a condition that causes impairment and presents significant symptoms. It is usually associated “with dyspnea, bibasilar rales, and changes in pulmonary function: a restrictive pattern, mixed restrictive–obstructive pattern, and/or decreased diffusing capacity.”19 Epidemiologists agree that asbestosis in nonsmokers may increase by six times the risk of developing lung cancer.20 A review of 15,557 deaths occurring to workers listed on the Great Britain Asbestosis or Mesothelioma Registers between 1971 and 2005 shows that “[t]he majority of asbestosis cases (76%) did not have asbestosis as the underlying cause of death. Lung cancer was the underlying cause of death in over 40% of the asbestosis cases.”21 Because of its responsiveness to the dose exposure, asbestosis cases were much more frequent in the past when asbestos was more frequently used and when workers were exposed to higher quantities.

Finally, asbestos exposure may finally cause calcified and noncalcified pleural plaques, diffuse pleural thickening, and rounded atelectasis. They are mostly non-fatal, and descriptions in the literature are less prominent than asbestosis and asbestos cancers. Indeed, labeling them as diseases is controversial. From a medical point of view, pleural plaques are the most common and earliest manifestation of asbestos exposure. “These plaques develop slowly over time, with a previously reported average latency of twenty to thirty years from first exposure before they become detectable on chest radiographs.”22 Pleural plaques consists thus in evidence of pleural and parenchymal consequences of asbestos exposure. They often cause difficulties in breathing because of a restrictive ventilation pattern, especially in cases where the plaques are calcified.23 Diffuse pleural thickening makes breathing difficult, painful, and overall harder. In some patients, pleural plaques develop in a fibrosis of the visceral pleura that is fused to the parietal pleura, often covering a wide area of the lungs. Clinical practice defines as diffuse pleural thickening.24 Symptoms of diffuse pleural thickening are more severe than pleural plaques, and include localized chest pain, significant restrictive ventilatory impairment, and a diminished vital capacity and total capacity of the lungs.25 Finally, some asbestos sufferers develop rounded atelectasis, a unique form of pleural thickening that causes the collapse of part or all of a lung. It is caused by the inflammation and subsequent fibrosis in the most superficial layer of the visceral pleura. As the fibrous tissue matures, the pleura buckles into the lung and causes the collapse of part or all of a lung. It is often asymptomatic, but occasionally it may cause chest pain, cough, and difficulty in breathing.26

This book focuses on asbestos use in four countries: Belgium, England, Italy, and the United States. All these countries have made great use of asbestos and experienced the asbestos epidemic to a considerable degree. Data on mesothelioma incidence show that Belgium and Great Britain have very high incidence of mesothelioma cases. In Belgium, “about 300 mesothelioma cases are yearly diagnosed” with a corresponding “crude incidence rate of 29 cases per million.”27 The crude incidence rate for Great Britain is “about 30 cases per million.” Italy belongs to a “second group of countries [with] annual crude incidence rates of mesothelioma … comprised between 11 and 20 cases per million.”28 The United States belongs to a “group of countries whose annual crude incidence rates of mesothelioma are below 11 cases per million.”29 However, since “mesothelioma case distribution exactly reflects the location of using asbestos industries,”30 some regions in the United States have incidence of mesothelioma similar to Great Britain and Belgium.

Belgium imported and consumed high volumes of asbestos. A former imperial power, Belgium’s industrialization took place in the twentieth century during the golden years of the magical mineral. With no domestic mines, asbestos was primarily imported in Belgium and then used to manufacture products that will be sold on the domestic market and abroad. Cyprus and South Africa were the main source countries. An efficient system of ports and transportations supported asbestos imports (it also exposed many transportation workers and neighboring communities to asbestos dust as the magical mineral killer was transferred from the port of entry to the manufacturing sites). The production of asbestos took place primarily at Eternit’s plant in Kapelle-op-den Bos, a small town with a railroad and canals, which also hosted smaller asbestos manufacturers. Eternity’s significance however goes beyond Belgium: during the golden years of asbestos production, the firm became the world’s second largest seller of the magical mineral, with significant market shares in Europe and Asia. It was connected to a network of asbestos-cement producers in Europe and exported its asbestos production to Brazil and India. Asbestos was also used by those traditional industries in which it had become commonplace. Shipbuilding in particular played an important role in industrial development of this rather small country. Despite the history of asbestos use, very few epidemiological data are available. As Bianchi and Bianchi put it in their 2007 review of the global incidence of mesothelioma, “[s]carce data are available for Belgium.”31 In part, this is due to the fact that Belgian authorities do not release individual information from death certificates and that no mesothelioma registry has ever been established, contrary to the common practice of other European countries including Italy and England. Nonetheless, there is evidence of asbestos disease cases. In 1980, Lacquet and colleagues studied the annual chest radiographs, work history and mortality of 1,973 workers in an asbestos-cement factory. They reported one death due to pleural mesothelioma and 29 cases of asbestosis.32 More clear data come from the Belgian Fund for Occupational Diseases: between 2000 and 2004 the Fund attributed 203 deaths to asbestos exposure. Based on this data, Nawrot and colleagues estimated an asbestos mortality of about eight per million men per year,33 which is a figure higher than in any of the 33 country studies by Lin and colleagues.34 In 2013, after fieldwork conducted as part of litigation, the Belgian victims’ association reported that, in the two major asbestos towns (Mons and Kapelle-op-den-Bos), 381 individuals were deceased due to asbestos exposure.35

England also has a long and intense history of asbestos use. The country was a heavy importer of asbestos and producers of products incorporating the “magic mineral.” Although no asbestos mine was opened on the British Islands, two of the largest asbestos firms around the world flourished in England: Turner & Newall and Cape. Founded in 1871, the leading asbestos manufacturer Turner & Newall grew to be one of the largest asbestos companies in the world. The firm became involved with asbestos in 1879 when it became the first business in the United Kingdom to weave asbestos cloth with power-driven machinery. Over time, the company expanded its asbestos business. For over seven decades Turner & Newall was synonymous of an industrial group which owned asbestos mines, operated foreign subsidiaries with asbestos interests, and sold asbestos products or franchises overseas. Overall, the group owned and operated fourteen plants in Great Britain and owned 16 businesses overseas, including asbestos mines at Havelock in Bulembu in the Kingdom of Swaziland, Southern Africa. By 1939, the firm controlled 20 percent of the asbestos trade in the United Kingdom. However, Turner & Newall experienced tremendous business success after WWII as its share in asbestos trade peaked to 60 percent of the market in 1965. Now owned by the US multinational Federal-Mogul, the firm faced significant hurdles in dealing with its asbestos liabilities. The firm was the largest British employer in the asbestos industry and therefore the number of asbestos victims that could link their diseases to exposure to asbestos dust at Turner & Newall is very robust. On October 1, 2001, Federal Mogul filed for voluntary Chapter 11 reorganization in the US and administration under the UK Insolvency Act of 1986, and Turner & Newall ceased paying asbestos claims. Cape was the second major asbestos firm. Incorporated in England in 1893 under the name Cape Asbestos Company Limited, the firm’s main business was to mine and process asbestos as well as selling products containing asbestos. The London-based holding company controlled interests that extended from South African mines of blue and brown asbestos as well as various manufacturing plants located in various regions of the world including South Africa, England, the United States, France, Germany, and Italy. Over time Cape conquered the slice of the English asbestos market that was not under the control of Turner & Newall. As manufacturing and sales expansion reached its peak after World War II, thousands of asbestos workers were exposed daily to the killer dust. Exposure caused disease and ultimately legal liabilities that have engaged Cape for many years. Later in this book, I will discuss Turner & Newall’s and Cape’s records of asbestos litigation and compensation in detail. The legacy of the presence of these two firms in England is tragic. England has one of the highest rates of asbestos diseases among industrialized nations. The number of annual cases of mesothelioma is high and on the rise. Since 1968, the year in which the British Mesothelioma Register was established, mesothelioma deaths have risen rapidly, with deaths in 2001 12 times higher than in 1968.36 A person dies every five minutes due to mesothelioma. By 2050, there will have been approximately 90,000 deaths from mesothelioma in Great Britain, 65,000 occurring after 2001.37 Asbestos disease is distributed in many parts of the country, in urban and coastal communities, in blue collar and white collar workers, in England as well as in all other regions of the United Kingdom.

Italy’s history is also intertwined with asbestos. Its relationship with the magical mineral is longstanding. For most of the twentieth century, Italy was the second largest producer of asbestos in Europe, behind Russia. The Balangero mine was the most important mine in Europe. Chrysotile asbestos was mined there from 1918 and 1990, date of closure of the mine. Italy had an active asbestos manufacturing industry and exported less than half of its asbestos production. The key asbestos production was asbestos-cement applications, which was produced in various plants, the largest being located not far from Balangero and owned by Eternit Switzerland. Furthermore, the naval industry prospered in part by heavily relying on the magical mineral: 811 mesothelioma cases were diagnosed between 1968 and 2008 in the Northeast of Italy, along a narrow coastal strip with a strong presence of the shipbuilding industry in the Trieste and Monfalcone districts.38 Data on asbestos deaths have been collected for many years, thanks to a first rate group of epidemiologists to recording committed to studying occupational diseases and unraveling on the asbestos epidemic. Data show that 8,868 cases of mesothelioma were entered into the National Mesothelioma Registry between 1993 and 2004 (exposure to asbestos was validated for 6,603 of them).39 Roughly 10 percent of the cases occurred because of environmental or household exposure to asbestos dust.40 Epidemiologists predict that, at the peak of the epidemic, approximately 800 individuals will die from mesothelioma annually.41

Asbestos has been used in the United States since the middle of the nineteenth century. “The manufacture of asbestos products in the US began just before the Civil War with simple versions of asbestos paper, textiles, and packing being made in small workshops.”42 Slowly its use grew as American businesses invested in asbestos mines in Québec. One of them, Johns-Manville, with its large plant located in Manville, NJ, soon became one of the world’s leading building materials and insulating companies. The other major asbestos firm in the early use of asbestos was US Steel. Together they “were major suppliers to the building, automobile, and railroad industries and both sold most of their products to buyer specifications” and had a close relationship with J.P. Morgan.43 As America developed its industrial force, these two companies amassed large profits. The use of asbestos grew from 20,000 metric tons per year in 1900 to 170,550 in the 1930s and 672,900 in the 1950s.44 Asbestos use peaked in 1973, up to 803,000 metric tons per year.45 Asbestos was extensively mined in the United States. One of the chrysotile asbestos mines was located near Coalinga, California, USA (now a US EPA Superfund reclamation area). The world’s largest vermiculite mine was located near the town of Libby, Montana.46 The mine opened in 1923, and was owned and operated by the W.R. Grace & Company from 1963 until it closed in 1990. Finally, the Great Valley of California hosted at least 26 asbestos mines or asbestos prospects.47

The making of the asbestos epidemic

Although some evidence that asbestos was dangerous had been documented in pre-modern times, its toxicity was established only decades after the modern rise of the material. Asbestos toxicity became known gradually. In 1899, “government factory inspectors in Britain singled out asbestos because of its ‘easily demonstrated danger’ to the workers’ health.”48 Asbestos deaths were first noted in 1906 when “medical experts fully described the ill effects of breathing asbestos particles.”49 The first medical paper on asbestosis was in fact published in the British Medical Journal in 1924.50

Evidence of a causal link between asbestos exposure and lung cancer become public only decades after in 1955. Evidence of the link slowly grew in the 1930s and 1940s. Cases of lung cancer among asbestos workers were reported in the 1930s in England among Turner & Newall’s employees. Turner & Newall’s internal compensation process registered cases of death for lung cancer, as Tweedale reports.51 In 1931, the Trades Union Congress “was warned of a possible link between asbestos and lung cancer.”52 Further evidence that asbestos could cause lung cancer was gathered in the 1940s in Germany. Alerted by the emergence of such evidence, the Nazis decided in 1943 to list lung cancer as an occupational disease for Aryan asbestos workers.53 The Nazi imprint on lung cancer as an occupational disease might have worked against public health in the post-World War II era. As an attorney suggested during an interview, the fall and the unraveling of the atrocities committed by the Nazi regime discredited the evidence that a link between asbestos and lung cancer had been proven. The governments of the countries that prevailed at war wanted a fresh start, which unfortunately included refuting whatever the fascists regimes that were defeated during the war, had done. Evidence that asbestos caused lung cancer followed that path. Ten years passed since the end of the war before new evidence was published. This happened in 1995 when Sir Richard Doll published the paper “Mortality from lung cancer in asbestos workers” in the British Journal of Industrial Medicine.54 The study concluded that “lung cancer was a specific industrial hazard of certain asbestos workers and that the average risk among men employed for 20 or more years has been of the order of 10 times that experienced by the general population.”55 In 1964, Selikoff and colleagues furtherer supported Doll’s findings: of the 632 insulation workers that comprised Selikoff’s cohort, “forty-five died of cancer of the lung or pleura, whereas only 6.6 such deaths were expected.”56

Scientific knowledge of the link between pleural mesothelioma and asbestos was published only in the 1960s. The credit for exposing the deadly consequences of asbestos goes to J.C. Wagner, a determined scientist appointed by the South Africa Department of Mines to explore occupational diseases in asbestos mines.57 While initially his research explored the link between the magical mineral and asbestosis, over time Wagner realized that an off-the beaten path idea was very promising: the link between asbestos and cancer. He collected data on mesothelioma cases among men and women who had lived close to the mines. He included in the study thirty two cases with proven exposure to asbestos. Interestingly, only eight victims had experienced occupational exposure. The remaining victims grew up and lived in the surroundings of the mines, a highly polluted environment. Dr. Wagner’s groundbreaking findings were published in 1960 in the British Journal of Industrial Medicine58 in a paper that “changed the understanding of the dangers of asbestos and suggested a nexus between work, the environment, and cancer.”59 However, Wagner’s career in South Africa came to an end: his research made the industry worried that knowledge of asbestos cancerogenicity would put a halt to toxic mining activities in South Africa and he found it more convenient to move back to Great Britain and work as a pathologist.

Evidence of asbestos toxicity would have become public much earlier. The delay was caused by the industry’s active efforts to conceal it. Business historians have demonstrated that the surge in asbestos disease in modern times is attributable to asbestos companies’ conspiracy. The industry has concealed, misrepresented, underplayed, and manipulated evidence of asbestos toxicity since the early twentieth century.60 Evidence of asbestos toxicity thus became public despite industry efforts to conceal it.