§Mesothelioma as a percentage of all deaths

§Mesothelioma as a percentage of all deaths

† National Institute for Occupational Safety and Health (NIOSH), May 2003, Work- Related Lung Disease Surveillance Report 2002, Section 7, Table 7-1, Division of Respiratory Disease Studies.

Moreover, although the South Carolina factory used a small amount of crocidolite 2,000 pounds (0.03%). Yet 12% of the asbestos fibers found in the pulmonary tissue of South Carolina chrysotile workers were crocidolite (Pooley, F.D., Mirtha, R., 1986. “Fiber Types, Concentrations and Characteristics Found in Lung Tissues of Chrysotile-Exposed Cases and Controls,” 1 Accomplishments in Oncology 1-10) suggesting that crocidolite was the cause of their mesothelioma.

In contrast to the failure to find many mesotheliomas among miners of chrysotile asbestos, mesotheliomas were easily found in cohorts exposed to amphibole asbestos. Wagner, J.C., Sleggs, C.A., Marchand, P., (1960) “Diffuse Pleural Mesothelioma and Asbestos Exposure in North Western Cape Province,” 17 Brit. J. Industr. Med. 260-271, were able readily to identify 33 mesothelioma cases (40% having only non-occupational exposure) from crocidolite exposure, while it took more than 30 years to find a similar number among the Quebec chrysotile miners and millers. Although the United States has consumed at least 24.5 million tons of chrysotile asbestos since 1931, the best epidemiology available indicates there any excess of mesothelioma associated with high cumulative exposure is small and may be due to confounders.

Since any effect of a pollutant will be proportional to RR-1, chrysotile asbestos is at least 21 times less likely to cause mesothelioma than amphibole asbestos (Table 3) Since the exposure in the chrysotile mines is nearly 10 times higher than in the amphibole cohorts, the difference is even more dramatic (Table 3).

Table 3. Mesothelioma mortality in ten epidemiologic cohort studies of individuals exposed to crocidolite, amosite, actinolite asbestos and tremolite asbestos where general causation is well established. The average cumulative exposures are from Hodgson and Darnton, 2000 while the Risk Ratios (RR) has been added. Only the cohorts with occupational exposure to amphibole asbestos were useful for establishing causation.

Fiber type	Name and Location	Mesotheliomas /all deaths (%)	Exposure f/ml x years §	Risk Ratio (RR) Observed/Background
Crocidolite	Miners
	South Africa(SA)	20/423 (4.7%)	16.4	29(4.7/0.16)
	Wittenoom, Australia	72/719(10%)	23	62(10/0.16)
	Factory Workers
	Massachusetts	5/28 (17.8%)	120	111(17.8/0.16)
Summary______97/1,170(8.3%)___53'>Summary		97/1,170(8.3%)	53	52 (8.3/0.16)
Amosite	Paterson, NJ
	Workers	17/740(2.3%)	65	14(2.3/0.16)
	Household	4/115 (3.5%)	Unknown	22(3.5/0.16)
	Neighborhood	1/780(0.13%)	Unknown	0.8(0.13/0.16)
	Tyler, TX	6/222(2.7%)		17(2.7/0.16)
	Uxbridge, UK	5/333(1.5%)		9(1.5/0.16)
	South African Miners	4/648(0.6%)	23.6	4(0.6/0.16)
Summary		37/2,838(1.3%)	47	8(1.3/0.16)
Tremolite-Actinolite Asbestos	Miners, Libby, MT†	12/286 (4.2%)		26(4.2/0.16)
Mean for four amphibole asbestos minerals		146/4,294 (3.4%)		21(3.4/0.16)

†McDonald, J.C., Harris, J., Armstrong, B., (2004)” Mortality in a Cohort of Vermiculite Miners Exposed to Fibrous Amphiboles in Libby, Montana,” 61 Occup. Environ. Med. 363-366.

Specific Causation from Gasket Changing
The discussion of general causation can be the first step in discussing specific causation. As noted above, we have selected in the discussion of general causation a group whose average exposure is the highest which we know about, approximately 600 fibers/ml x years (Table 1).

We make an assumption, usually believed to be pessimistic, that the risk is approximately proportional to the exposure and dose. Even if marginal general causation were to be accepted, (Risk Ratio =2) the increase in the risk at the highest exposure of 600 fibers/ml x years would be about one thousandth of the background mesothelioma risk in the general population (Table 2). The risk of mesothelioma at a lower chrysotile exposure would then be equal to:

Chrysotile Miners and Millers Risk x Lower Exposure in f/ml x yrs

divided by (600 f/ml x years)

As we proceed to estimate the maximum possible exposure of Mr. Norris from observing gasket changing the Risk Ratio would be closer to unity and the Probability of Causation closer to zero.

Estimate of Mr. Norris’ Exposure from Observing Gasket Changing

Mr. Norris’s exposure was indirect and incidental as he walked past when others were changing chrysotile-containing gaskets and valve packing. Those crew members who actually changed the valves and gaskets must have had a considerably higher exposure, perhaps ten­fold, than a mere observer, yet there is no evidence that the asbestos exposure among this group (either by direct measurement or simulation) is sufficient to increase their risk of asbestosis or asbestos-related cancer.

The calculation of exposure that can occur from gasket changing shows that it is small. We therefore estimate that Mr. Norris’s chrysotile exposure would increase his risk of mesothelioma from a background of 1 to less than 1.0009, and much less than the risk ratio which would seem necessary to satisfy the demand of “more likely than not”.

There have been cohort studies of persons changing gaskets, some by use of personal monitors, and some by simulated gasket repair. These have very recently been listed and reviewed in Madl, A.K., Clark, K., Paustenbach, D.J., (2007) “Exposure to Airborne Asbestos During Removal and Installation of Gaskets and Packings: A Review of Published and Unpublished Studies, “ 10 Journal of Toxicology and Environmental Health 259-286 (“Madl, et al. 2007”). Their Table 5 is attached here as our Table 4 for convenience.

ATTACH TABLE 5 from MADL here.
With one exception, these cohort studies, listed in Madl, et al. 2007’s Table 5, show that the average over an 8-hour period the time-weighted average (TWA) is less than 0.01 fibers per mL. The exception is when a gasket was cut up on the side, resulting in exposure that was 100-fold greater than merely observing the changing. There is no evidence that the plaintiff observed the cutting up of gaskets. On the contrary, the evidence suggests that the exposure of the persons changing the gaskets (to which the plaintiff was exposed only as a bystander) was in the lower exposure category. Assuming a very extreme case that the worker changed gaskets every day of a 40 year working life, the cumulative exposure would have been 0.4 fiber/ml x years. This is 1,500 times less than the 600 fibers /ml x years exposure in the Quebec mining and milling studies. The (Risk Ratio – 1) is approximately proportional to dose so that it would be reduced from the hypothetical 2 in the Quebec Mining cohort to 1.007 and the Probability of Causation would be 0.007%.
Therefore, even if the three extreme arguments are made that General Causation is (marginally) satisfied, (which amici do not believe) that the exposure of someone who merely saw gasket changing had the same exposure as a worker changing the gaskets, and that the worker saw gasket changing every day of a 40 year working life, the requirements of specific causation are very far from satisfied.
Moreover, plaintiffs’ evidence showed that there were many other – and larger – sources of asbestos on the ship than was contained in Crane’s valves. The primary source was asbestos-containing insulation, which released large quantities of dust when it was removed, when the ship vibrated or when sailors bumped into or brushed by the insulation. This insulation was amphibole asbestos, see RT 716:21-718:3, a substance that is a potent cause of mesothelioma, with a much higher risk ratio than the chrysotile asbestos in Crane’s valves. Studies presented by plaintiffs’ expert Richard Hatfield suggested that exposure levels from insulation work were 13 to 15 times greater than those from work on valves: See RI 1028:23-103l: 19. This demonstrates that there were at least “confounding factors” that could have caused Mr. Norris injuries. Plaintiffs experts conceded that Mr. Norris was exposed primarily to asbestos from insulation, see RT 1012:6-1012:17, and that this exposure was by itself sufficient to cause Mr. Norris ‘s mesothelioma, see RT 738:1-738:5, 759:12-759:24.

Given the minimal or nonexistent exposure to chrysotile asbestos from Crane valves, any conclusion that asbestos from those valves was a substantial factor in increasing Mr. Norris’s risk are based on assumptions which are not supported by the record or upon factors which are speculative, remote or conjectural. See In re Lockheed Litig Cases, (2004) 115 Cal. App. 4th 558, 563(“Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value.")

CONCLUSION

Amici believe the claim that exposure to chrysotile asbestos while observing persons changing gaskets, caused increased risk of mesothelioma cannot be maintained. The risk is so small that even under pessimistic assumptions it must be assumed to be de minimis, the

judgment entered below should be reversed.

Dated: Larchmont, New York January 30, 2008 Respectfully submitted,

Martin S. Kaufman ATLANTIC LEGAL FOUNDATION

Attorneys for amici curiae

2309 Palmer Avenue (Suite 104) Larchmont, NY 10538 (914) 834-3322

CERTIFICATE AS TO WORD COUNT

Pursuant to CRC 8.204(c)(l), I hereby certify that the foregoing brief contains 7,155 words, calculated using the word count feature of WordPerfect 12, excluding (pursuant to CRC 8.204(c)(3)) the tables and this certificate.

Martin S. Kaufman Counsel for amici curiae

PROOF OF SERVICE

[Norris v. Crane Co., BC 3404131] STATE OF NEW YORK, COUNTY OF WESTCHESTER } I am employed in the County of Westchester, State of New York. I am over the age of 18 and not a party to the within action. My business address is 2039 Palmer Avenue, Suite 104, Larchmont, New York 10538. On the date set forth below, I served the foregoing document(s) described as:

BRIEF AMICUS CURIAE OF PATRICIA A. BUFFLER, JOHN DUFFUS, RONALD HART, STEVEN LAMM, RODNEY NICHOLS, ROBERT P. NOLAN, EMANUEL RUBIN, and RICHARD WILSON

on all interested parties in this action by placing a true copy thereof enclosed in a sealed

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Executed on February ____ at Scarsdale, New York.

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SERVICE LIST

[Norris v. Crane Co. - BC 3404131]

John Langdoc, Esq. (SBN 235509) BARON & BUDD, P.C. 3102 Oak Lawn Avenue, Suite 1100 Dallas, Texas 75219 Tel: 214-521-3605 Fax: 214-520-1181 Email:jlangdoc@baronbudd.com

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