Response to Pleural Plaques Consultation Paper CP 14/08,

dated 9 July 2008

Submission Regarding Two Policy

Proposals Especially Relevant to “Industry”
This submission responds to two of the five policy proposals set out in the
Consultation. They are:

“Policy Option: 3 - Description: Changing the law of negligence so that

compensation can be claimed through the civil courts as was the case
before the Court of Appeal decision.”

“Policy Option: 5 - Description: Financial support in the form of a “no

fault” payment for those diagnosed with pleural plaques, due to workplace
exposure to asbestos, both before and after the House of Lords decision on
17 October 2007.”

1
 Introduction

To date, debate in the UK has been dominated by UK insurers and trade unions
advancing traditional UK arguments centered around whether or how much compensation is
payable in a particular setting. Indeed, in the recent Scottish Consultation on pleural plaques, the
vast bulk of the submissions were from trade unions and insurers, with only one brief paper from
“industry.” This submission seeks to present different issues and new information relevant for
some if not all employers and manufacturers that fall under the general label of “industry.” This
submission seeks to present issues relevant to “industry”

• by explicitly identifying “industry” concerns that are sometimes significantly

different from the interests of insurers; differences arise because some once dominant
EU insurers have failed financially, and other insurers are restructuring or using
schemes to limit their reachable assets, thereby actually or potentially leaving
“industry” to pay claims expenses that were thought to be insured;

• by showing that the Consultation does not acknowledge that Cape Industries and
Turner &Newall (T&N) were the overwhelmingly largest UK miners, manufacturers
and distributors of asbestos, and used vast amounts of the exponentially more “toxic”
blue and brown forms of asbestos fibers, but T&N is insolvent and Cape entities have
restructured to limit assets available to pay for injuries, thereby leaving current
members of industry to shoulder financial burdens that should in fairness fall on T&N
and/or Cape if plaques payments are to be made;

• by showing that there are lessons to be learned from the dismal experience in the
United States as its courts and industry were overwhelmed by waves of claims for
nonmalignant conditions, and by showing that the Government should take its
decision in light of the reality that litigation and claiming entrepreneurial now
involves global alliances among claimants’ firms and the industry is well-financed, as
is evidenced by Allianz and others raising pools of capital to invest in litigation, and

• by presenting scientific information to show that:

o the Consultation significantly underestimates the number of plaques cases that

will be identified using up to date science, and so significantly underestimates
the future expense of paying compensation for plaques under Policy Option 3
or 5;

o the Government should focus compensation and attention on the growing

wave of asbestos-related cancers instead of non-malignant conditions;

o in fact, rapid scientific advances already allow the identification of so many

“risk” factors and “markers” that sound social policy should not seek to pay
compensation for risks or “markers,” and the better policy instead would be
for the Government to consult with scientists, unions, industry and insurers on
how to invest in accelerating scientific research, treatments, and drugs that
offer real hope that the future may allow for at least some cancers to be
managed and/or delayed, if not actually “cured.”

2
I. The Consultation Omits Facts And Issues Regarding
Insurance Insolvencies And Schemes of Arrangement
1.1 Insolvent Insurers: The Consultation does not come to grips with the
consequences of the financial failure of insurers that issued Employers’ Liability
cover. One specific and important example of insurer insolvency arises from the
corporate restructuring and financial transfers that soon thereafter resulted in the
failure of the Iron Trades insurance entity. The failure of Iron Trades was
especially adverse for industry because Iron Trades had been for many years the
dominant EL insurer. The failure of Iron Trades caused thousands of employers
to lose their EL cover and so members of industry are now paying claims out of
their own pocket despite previously paying insurance premiums.1

1.2 Restructuring Insurers: The failure of Iron Trades arose after insurance entities
restructured and left the long-time insurer depleted of revenue generating
accounts and other assets, as previously shown to Parliament.2 The Government
needs to take its decision-bearing in mind that insurers can and are continuing to
restructure, with some choosing structures that eliminate or limit available assets.
Accordingly, insurance assets may continue to disappear, thereby leaving industry
to make all or most of any plaques payments. Moreover, the risk of involuntary
insurance insolvencies has to be considered in light of the near-failure of AIG and
other financial entities.

1.3 Solvent And Insolvent Insurance Schemes: PricewaterhouseCoopers and others

have taken well over 100 insurers into solvent and insolvent schemes that truncate
or completely block insurance recoveries, depending on whether and when
insurance claims are submitted. http://brsuk.pwc.com/solvent.asp (list of over 100
solvent schemes). According to the PwC website, some 15 additional schemes
are contemplated for solvent insurers. Any action to implement plaques
compensation should include terms to ensure that solvent and insolvent schemes
cannot be used to limit or avoid any form of insurance obligations related to
asbestos claims, including general liability and products liability coverage.

1.4 Industry In Any Event Pays Through Insurance Premiums: The Consultation
does not confront the reality that insurance premium increases for industry
inevitably will follow if Government action imposes on insurers payment
obligations related to pleural plaques. During September 2, 2008 testimony in
Scotland, some representatives of the insurance industry testified that increases in
premiums are likely if pleural plaques claiming is again allowed, but did not
testify to any amount. Others acknowledged the possibility that there would not
be any premium increase. See www.scottish.parliament.uk/s3/committees/
justice/or-08/ju08-1902.htm (testimony at Col. 1030 -32). But of course at that

1
An insolvency plan arising from Iron Trades will sometimes reimburse approximately 5¢ per claim dollar paid
out by an employer.
2
http://www.publications.parliament.uk/pa/cm200001/cmhansrd/vo010430/debtext/10430-27.htm (recounting
separation of assets from liabilities, and resulting failure)

3
time, the worst of the capital market liquidity problems had not yet arrived and so
insurers were not yet looking at the full consequences of the ongoing liquidity
situation. In sum, the indirect price to industry of insurance premium increases
will depend on the scope of Government action on pleural plaques, as well as the
effect on insurers of the recent financial system shocks that appear likely to
continue for some time. The Consultation’s cost estimates should be deemed
inaccurate and unreliable in that they do not confront the pass through costs that
inevitably will fall to industry through increases in insurance premiums if plaques
payments are legislated.

4
II. All “Exposures” Are Not Fungible
2.1 Exposures Are Not Fungible: The Consultation proceeds as if all “exposures” are
fungible and equally likely to cause plaques. In fact, however, “exposures” are not
fungible, as shown below.

2.2 Asbestos Fibers Are Not Alike - Most Plaques Arise From Amphibole Fibers:
The Consultation is unsound because it treats all asbestos fibers and exposures as
if they are alike, but in fact science indicates that amphibole asbestos fibers
caused many or most instances of pleural plaques. See Roggli, Oury & Sporn:
Pathology of Asbestos-Associated Diseases (2d Ed. 2004) at 178 (“By means of
tissue digests, it has been shown that it is primarily amphibole asbestos fibers that
are found in abnormal amounts in the lungs of patients with plaques.”). See also
Written submission from the Institute of Occupational Medicine, D20, at 2 (“It is
clear that there is generally a long time between being first exposed and the
appearance of plaques and that exposure to crocidolite (blue) and amosite
(brown) asbestos appears to be more likely give rise to plaques than chrysotile
(white) asbestos.”); Consultation at ¶11 (quoting findings of Dr. Rudd).
Nonetheless, the Consultation does not draw lines between fiber types and instead
treats all “exposures” as if they were equally risky even though that plainly is not
true. See also “A Meta-Analysis of Asbestos-Related Cancer Risk That
Addresses Fiber Size and Mineral Type,” Friday, August 8th, 2008, Critical
Reviews in Toxicolog, 2008 Aug 6:49-73. (Epub ahead of print), available at
http://www.mesothelioma-line.com/articles/2008/08/08/a-meta-analysis-of-
asbestos-related-cancer-risk-that-addresses-fiber-size-and-mineral-type/.

2.3 Actual “Exposure” Requires Inhalation Of Fibers: A building or machine may

contain asbestos materials but not cause an actual “exposure.” Simply put,
exposure requires actual inhalation of asbestos fibers, and actual inhalation does
not arise simply from working in a building or near a machine that contains
asbestos. http://www.cancer.gov/cancertopics/factsheet/Risk/asbestos (U.S.
national cancer Institute notes, in ¶3 that “exposure” only arises when fibers are
actually released and inhaled). This fact is significant since in some contexts, the
Consultation uses the term “exposure” loosely as if inhalation of fibers is always
occurring if asbestos is present in a building or other work site. But, that is not in
fact the situation, as is shown by studies establishing that fiber levels in buildings
with asbestos often are at or below the asbestos fiber levels found in every day
outdoor air. See Lee, R. J. and Van Orden, D. R., “Airborne Asbestos in
Buildings,” Regulatory Toxicology and Pharmacology, Vol. 50, Issue 2, 2008, p.
218-22. The abstract for the article states the following:

The concentration of airborne asbestos in buildings nationwide is

reported in this study. A total of 3978 indoor samples from 752
buildings, representing nearly 32 man-years of sampling, have
been analyzed by transmission electron microscopy. The buildings
that were surveyed were the subject of litigation related to suits
alleging the general building occupants were exposed to a potential
health hazard as a result the presence of asbestos-containing

5
materials (ACM). The average concentration of all airborne
asbestos structures was 0.01 structures/ml (s/ml) and the average
concentration of airborne asbestos P5 lm long was 0.00012
fibers/ml (f/ml). For all samples, 99.9% of the samples were <0.01
f/ml for fibers longer than 5 lm; no building averaged above 0.004
f/ml for fibers longer than 5 lm. No asbestos was detected in 27%
of the buildings and in 90% of the buildings no asbestos was
detected that would have been seen optically (P5 lm long and
P0.25 lm wide). Background outdoor concentrations have been
reported at 0.0003 f/ml P5 lm. These results indicate that in-place
ACM does not result in elevated airborne asbestos in building
atmospheres approaching regulatory levels and that it does not
result in a significantly increased risk to building occupants.

6
III. Two Dominant Entities Will Not Fully Shoulder Their
Responsibilities If Plaques Payments Must Be Made
3.1 The Consultation Does Not Confront The Reality That T&N And Cape
Dominated UK Asbestos Use And Extensively Mined, Used And Sold The Blue
And Brown Amphibole Fibers: The Consultation does not confront the massive
roles of T&N and Cape Industries with respect to the widespread mining, sale and
use of amphibole asbestos fibers in the UK. In fact, both companies played
enormous roles in all asbestos use in the UK and so in fairness should shoulder a
large share of any payment obligation.

3.2 Cape Industries used its South African mines to produce the vast majority of
amphibole fibers used in the UK and elsewhere in the EU. See Geoffrey
Tweedale, Asbestos Companies and the Corporate Veil: The Inside Story of
Adams v. Cape [1990] (copy attached as Exhibit 1). See generally Geoffrey
Tweedale, Piercing the Corporate Veil: Cape Industries and Multinational
Corporate Liability for a Toxic Hazard, 1950–2004, available at
http://es.oxfordjournals.org/cgi/content/abstract/khm023v1. Indeed, the name
“amosite” fiber arises from a crude acronym for Asbestos Mines of South Africa.

3.3 T&N is generally considered to have been the world’s second largest
manufacturer of asbestos products, and certainly was by far the dominant seller of
amphibole asbestos products in the UK. See, e.g., Geoffrey Tweedale, Magic
Mineral to Killer Dust: Turner &Newall and the Asbestos Hazard (Oxford Press
2000).

3.4 Mr. Tweedale and Mr. Jack McCullough have now authored a new book devoted
to facts gleaned from the archives of T&N, titled “Defending the Indefensible, The
Global Asbestos Industry and its Fight for Survival,” (Oxford Press 2008). In this
new book and the other publications described above, Messrs. Tweedale and
McCullough assert that T&N and Cape went to great lengths to obscure the full
extent of the hazards of amphibole asbestos fibers, thus throwing amphibole
asbestos risk onto the end user workers and their employers.

3.5 U.S. “Industry” Claims Against T&N: Much like Messrs Tweedale and
McCullough, corporations in the United States also have accused T&N, Cape and
Johns-Manville of withholding information from government, unions and industry
regarding the health effects of the amphibole fibers mined by Cape and used so
much by T&N, with T&N later having been purchased by Federal-Mogul.
Specifically, a U.S. insulation manufacturer known as Owens-Illinois filed suit
against T&N and alleged that information was hidden by T&N in order to mislead
government, workers, and industry customers. The lawsuit produced a $ 1.6
billion default judgment that was later vacated. The claim was then refiled in the
Federal-Mogul bankruptcy and ultimately was settled in the context of the
bankruptcy.

3.6 The Owens-Illinois lawsuit has been described online by a U.S. plaintiffs’ lawyer
who represents asbestos claimants, Mark Lanier. Ironically, Mr. Lanier and
another plaintiffs’ lawyer, Mr. Shepard Hoffman, ended up defending T&N
7
 against Owens-Illinois in order to try and preserve T&N’s money for claims by
individual asbestos plaintiffs. According to Mr. Lanier’s website,3 he and Mr.
Hoffman did not dispute the accusations against T&N as to its conduct. To the
contrary, Mr. Lanier’s website states: “But Lanier and Hoffman say they are
making no excuses for T&N’s alleged conduct, and did not defend it at the
hearing to set aside the default judgment - just the opposite. Hoffman says he
argued at the hearing that the judge should assume T&N “did everything it’s
accused of doing.”

3.7 According to the same article, Owens-Illinois alleged a conspiracy among T&N,
Cape and Johns-Manville to suppress information about what they knew from
their decades of work with amphiboles and other types of asbestos fibers:

Citing the Racketeer Influenced and Corrupt Organizations Act,

Owens-Illinois alleges T&N conspired with Johns Manville Corp.
and CAPE Asbestos, two other major asbestos manufacturers, from
the 1920s through the 1960s to create a worldwide cartel for the
sale of raw asbestos fibers.

T&N, which years ago got out of the asbestos business and is now
an automotive parts company, allegedly sold the fiber to
companies like Owens-Illinois, which used it in pipe insulation
products.

Owens-Illinois, which sold asbestos-containing products from

1948 until 1958, alleges that T&N knew in the 1940s of the health
risks that the fiber posed to end-users who handled asbestos
insulation, but withheld that information from the British
government, unions and customers. (emphasis added).4

3.8 Conclusion: In light of these facts, any compensation payment program will
frequently be inequitable as government, insurers and/or industry would be
paying out money that should otherwise be an obligation of T&N and/or Cape.5

3
http://www.lanierlawfirm.com/law_firm_news/asbestos_lawsuit.htm
4
Id.
5
As is discussed infra in Section IV, some modest payments will be available from the T&N trust for some period
of time. And, one presumes that some further monies will be extracted from Cape entities, but there is no presently
apparent reason to say that Cape will be fully called to account.

8
IV. Claiming Is Now A Well Financed Industry With Global Alliances
Among Lawyers And Organizers Aligned With Lawyers
4.1 Litigation Is Now A Well-Funded And Entrepreneurial Business: The
Government should weigh its actions bearing in mind that litigation today is
largely a global industry with global capital pools investing in litigation, and with
global litigation alliances among claimants’ lawyers and kindred organizations.
Thus, Allianz, hedge funds and others have publicly announced that they are
raising funds and investing in litigation. See, e.g., http://business.timesonline.co.
uk/tol/business/ law/article2688587.ece (18 October 2007) (describing Allianz
raising a commercial litigation investment fund; a different fund backing a $ 90m
accounting negligence claim; Herbert Smith creating a working group on the topic
of litigation financing; and describing the creation of strategic intermediaries
between litigants and funding sources.) Indeed, Herbert Smith is hosting an
upcoming 15 November 2008 conference on UK litigation funding. See
http://www.legalsupportnetwork.co.uk /news/newsview.asp?n=1975. In addition,
academics and others are advancing arguments for more UK class actions.
http://www.herbertsmith.com/NR/rdonlyres/57833CE1-1ABE-4524-B166-
545F413B5461/6788/ClassactionsArewemovingtowardanoptoutregime
27Feb.html. As a result, U.S. law firms now fund and prosecute tobacco litigation
in Nigeria, and a German firm buys and prosecutes antitrust claims. See
http://www.carteldamageclaims.com/ (press release regarding antitrust claims in
UK related to cement cartel; litigation prosecution entity known as Cartel Damage
Claims); http://www.butlerrubin.com/Web/br.nsf/0/0EEE6C70A5A38069862
5749C0053B071/$FILE/August+2008+OP+Article.pdf (article stating: “For
example, a lawsuit filed in Nigeria in 2007 seeks reimbursement for government
medical expenses arising from cigarette smoking. The lawsuit is truly a global
endeavor as it was filed by Nigerian lawyers, but is substantively backed by
plaintiffs’ lawyers from, among others, the SimmonsCooper law firm based in
Madison County, Illinois). As another example, Japanese-owned U.S. entities
face class action litigation in the U.S. arising from working conditions at a
sprawling, decades-old rubber plantation in Liberia. The litigation issues are
covered in some detail in a website devoted to the plantation and the litigation.
http://www.stopfirestone.org.

4.2 Entrepreneurs And Contingent Fees: Some say that entrepreneurial litigation
funding is bad, and some argue that it is good. (http://business.timesonline.co.uk/
tol/business/law/corporate_law/article2738493.ece). The important point here is
that the Government needs to weigh its steps bearing in mind that litigation is now
an industry with ample financial backing, and so it should not assume away the
probability that plaques compensation will turn into an entrepreneurial process.
And, Government needs to recognize that contingent fees are not just a creature of
the U.S. system, and instead they are permitted in a wide range of countries. See
http://www.polisci.wisc.edu/~kritzer/research/contfee/ wulq2002.htm. Those
rules, combined with the Clementi reforms to ownership in law firms, set the
stage for plaques compensation to serve as the platform from which the American
approach to entrepreneurial litigation will imbed itself in the UK.

9
4.3 Unions Are Forming Global Alliances: The Government needs to take its
decision-bearing in mind that some trade unions, like some members of industry,
are now forming global alliances. Thus, this summer, the UK’s 2.1 million
member Unite allied itself with the U.S. based United Steelworkers to create a
truly international union with more than three million members.
http://www.usw.org/media_center/releases_advisories?id=0044. Litigation
claiming practices urged by U.S. unions may therefore soon be transferred to the
UK.

4.4 The Global Alliances Of Plaintiffs’ Firms: The Government also needs to take
into account the global reach of asbestos plaintiffs’ lawyers and organizing
groups. For example, Mr. Steve Kazan is the leader of an Oakland, California
plaintiffs’ firm that represents with mesothelioma or other asbestos-related
cancers. See www.kazanlaw.com. Mr. Kazan’s firm, however, has a view that
extends far beyond the United States. Indeed, his firm hosts the World Asbestos
Report website which covers asbestos issues literally around the globe.
http://worldasbestosreport.org.

4.5 Allied Victims’ Rights Group: In addition, Mr. Kazan’s sister, Ms. Laurie Kazan-
Allen, is the leader of the International Ban Asbestos Secretariat, a group that
leads efforts to ban asbestos use everywhere, and also helps to organize a literally
global network of victim’s rights groups in many nations. The IBAS website is
http://ibasecretariat.org/, and the “about” link describes its activities as follows:

The International Ban Asbestos Secretariat (IBAS), established in

2000, provides a conduit for the exchange of information between
groups and individuals working to achieve a global asbestos ban
and seeking to alleviate the damage caused by widespread asbestos
use. Such use may be largely historical in the established
economies of the West but is continuing in developing nations.

Since its inception, IBAS has been involved in co-sponsoring and

supporting national and international conferences furthering the
above aims. In so doing, we have sought to counter the asbestos
industry’s control of the information stream and to provide a
platform for victims to speak out against the injustices they have
suffered.

Through its coordinator, Laurie Kazan-Allen, IBAS channels the

views of a network of victims’ groups, medical and legal
professionals and concerned individuals. IBAS has a continuing
role in raising public awareness of asbestos hazards and providing
informed comment on current developments. (emphasis added).

4.6 Organizing Efforts Include A Plaintiffs’ Expert, Barry Castleman: The projects of
IBAS include multiple speeches and papers by Barry Castleman, a health
professional with a PhD and a focus on asbestos, including previously
undertaking paid research for plaintiffs’ firms and compiling much information
into a book compiling facts used by plaintiffs in litigation, Asbestos, Medical &
10
 Legal Aspects (5th Ed. Aspen). For many years, Mr. Castleman also has been
designated as an expert witness for plaintiffs in literally thousands of cases in the
U.S. See, e.g., http://www.phhlaw.com/CM/VerdictsSettlements/Verdicts
Settlements40.asp (report on verdict in case in which Mr. Castleman testified).

4.7 British Asbestos Newsletter: In addition, Ms. Kazan-Allen has been writing and
organizing for some 14 years through a publication and website known as the
British Asbestos Newsletter. http://www.lkaz.demon.co.uk/

4.8 Other Global Plaintiffs’ Firms: Meanwhile, numerous other plaintiffs’ firms are
global in scope. Thus, Illinois’ SimmonsCooper law firm files hundreds of
asbestos claims per year, and now promotes its international litigation capabilities,
including a London based affiliate law firm. http://www.simmonscooper.com/
news-stormtrooper-ip-case.html. Class action law firm Lieff Cabraser also
promotes its global websites and cross-border relationships and describes a law
firm known as Lieff Global “with affiliate offices worldwide.” See
www.lieffglobal.com

4.9 Conclusion: The Government needs to recognize that litigation is now a global
industry, and needs to avoid assuming that the UK will for some reason avoid the
realities of mass tort claiming involving large sums of money.

11
V. Some Plaques Payments Already Are Available From Asbestos Trusts
5.1 Asbestos Trusts Already Make Payments For Pleural Conditions: The
Consultation proceeds as if the House of Lords decision precludes UK citizens
with plaques from obtaining any payments. In fact, however, the House of Lords
decision does not control asbestos claiming which occurs through “asbestos
trusts” which exist outside of the tort system and apply their own rules. Trusts of
this sort have been created through insolvency proceedings (e.g., T&N; Johns-
Manville) and through other voluntarily created trusts which pay compensation
for various conditions or malignancies. Accordingly, the Government should take
its decision bearing in mind that does not acknowledge that there already are
available sources of money for UK residents interested in obtaining compensation
for pleural conditions.

5.2 Specifically, a bankruptcy trust provides limited compensation for persons who
worked with asbestos products from T&N, or with products made by other
entities that have been involved with some of the 80 “asbestos bankruptcies” that
have occurred in the United States. Such sources include:

5.2.1 T&N Asbestos Trust. See http://www.fmukclaims.co.uk/

5.2.2 Compensation for pleural conditions also can be claimed from other
bankruptcy trusts from U.S. companies that sold asbestos products to
the UK. For example, claims from around the globe may be submitted
to the trust for the world’s largest manufacturer of asbestos products,
Johns-Manville. See http://www.mantrust.org.

5.3 Trusts also have been created outside of insolvency proceedings by entities such
as Cape, and Australian manufacturer James Hardie.

5.3.1 A dated but cogent summary of the situation with Cape making
payments is summarized well at Ms. Kazan-Allen’s IBAS website.
See http://ibasecretariat.org/lka_cape_comp_forgn_pla_0303.
php?p0=11

5.3.2 Reports on the James Hardie Trust, and the terms of the Trust, may be
found at www.jameshardie.com.au (visit investor relations page and
use results from a search for “trust”).

12
VI. The Focus Should Be On Asbestos-Related Cancers
Instead Of Symptomless Non-Malignant Condition
6.1 The Focus Should Be On Asbestos-Related Cancers, Instead Of A Symptomless
Non-Malignant Condition: The Consultation’s proposals to reverse the House of
Lords and/or to implement a No Fault Plaques Scheme should be considered in
light of the facts regarding the increasing wave of asbestos-related cancers. Those
and other facts detailed below demonstrate why the Government’s focus should
be on cancers instead of a symptomless non-malignant condition:

6.1.1 It is indisputable that there is an increasing wave of asbestos-related

cancers for both the UK in particular and the EU in general; both
geographic regions are relevant because persons in the UK may have
inhaled asbestos in a wide-range of cross-border situations, and
persons today can and do immigrate and claim across borders.

6.2 The Growing Wave Of Asbestos-Related Cancers In The UK And EU: Various
persons rightly have different views about if and when a particular cancer should
be deemed to arise from inhalation of asbestos. But despite those disagreements
in some particular cases, there is general agreement that there is an increasing
wave of asbestos-related cancers in the UK and EU. The prospects for the
growing wave were identified some years ago by several scientists, including the
UK’s Professor Julian Peto. See generally The European Mesothelioma
Epidemic, J Peto, A Decarli, C La Vecchia, F Levi and E Negri, British Journal of
Cancer (1999) 666–672.6 The following abstract for the article provides the gist
of the projections regarding increasing occurrences of mesothelioma in the EU:

“Projections for the period 1995–2029 suggest that the number of men
dying from mesothelioma in Western Europe each year will almost double
over the next 20 years, from 5000 in 1998 to about 9000 around 2018, and
then decline, with a total of about a quarter of a million deaths over the
next 35 years. The highest risk will be suffered by men born around 1945–
50, of whom about 1 in 150 will die of mesothelioma. Asbestos use in
Western Europe remained high until 1980, and substantial quantities are
still used in several European countries. These projections are based on
the fit of a simple age and birth cohort model to male pleural cancer
mortality from 1970 to 1989 for six countries (Britain, France, Germany,
Italy, The Netherlands and Switzerland) which together account for three-
quarters of the population of Western Europe. The model was tested by
comparing observed and predicted numbers of deaths for the period
1990–94. The ratio of mesothelioma to recorded pleural cancer mortality
has been 1.6:1 in Britain but was assumed to be 1:1 in other countries.”

6.3 The Cancer Wave Has Not Yet Peaked: More recent studies show that the
expected wave of cancers is indeed in progress and the wave continues to
increase. Indeed, there are some indications that prior estimates of mesothelioma
claims were too low and that more claims are emerging than were expected. See
6
The article is available online at http://www.nature.com/bjc/journal/v79/n3/abs/6690105a.html.
13
 http://www.actuaries.org.uk/__data/assets/pdf_file/0013/102217/Gravelsons2.pdf
(PowerPoint from GIRO 2007 conference of Asbestos Working Party II). Newer
information should be available in conjunction with GIRO 2008, which was held
in late September 2008. As a result, unions such as Unite agree that the UK has
not yet seen the highest point of the asbestos malignancy wave. See submission
of Unite, D227 (“The worst is yet to come. It is estimated that the peak mortality
attributed to mesothelioma will come between 2011 and 2015, with the highest
number of deaths per year being between 1,950 and 2,450.”) (citing Hodgson, J.
T., et al. (2005) British Journal of Cancer 92).

6.4 European Asbestos Use Greatly Exceeded North American Asbestos Use: The
Government needs to take its decision on plaques compensation bearing in mind
that asbestos use in Europe materially exceeded asbestos use in North America,
and so the volume of plaques in the UK therefore should be even higher than it
has been in the U.S. Statistics on relative asbestos use were presented in April,
2008 at an asbestos litigation conference in London hosted by IBC Legal
Conferences – informa. Specifically, a presentation by an actuary from
PricewaterhouseCoopers, Mr. Mohammed Khan, included graphic data regarding
asbestos use and consumption in different regions of the world. Slide 6 of Mr.
Khan’s presentation shows the consumption of asbestos in Europe as compared to
the entire continent of North America. (The comparative data is made even more
striking by the widespread and well known Canadian asbestos mining industry. It
is indeed highly significant that European use of asbestos fibers has so vastly
exceeded asbestos use in both the U.S. and Canada). Slide 6 is set out below and
shows that:

6.4.1 Europe’s use of asbestos exceeded North American use beginning in

the early 1950s, and Europe’s use soon exceeded North American use
by significant amounts;

6.4.2 the data indicates that European use peaked in about 1985 at a level
about 12 times higher than the amount of use in North America in
1985; and

6.4.3 the slide also shows that from the early 1950s until 1997, European
annual use of asbestos exceeded the highest level of annual use in
North America, which had occurred back in about 1970.

7
Citations in the form “Submission of _______, D ____” are citations to submissions regarding the Scottish
pleural plaques consultation. All such submissions are available online at http://www.scottish.parliament.
uk/s3/committeesjustice/inquiries/ damages/Damagessubmissions.htm.
14
15
VII. The Dismal U.S. Experience With Claiming For Non-Malignant Disease
7.1 Experience in the U.S. has proven that devoting significant resources to non-
malignant conditions is bad policy for many reasons, including that (1)
compensating unimpaired claimants encourages clogged court dockets that block
swift justice for persons with asbestos-related cancers, and (2) excessive claiming
tends to produce job-stripping corporate bankruptcies that in general are
fantastically expensive and lengthy, as evidenced by the over six years taken by
T&N and Federal-Mogul entities to exit reorganization proceedings.

7.2 Ultimately, as is further detailed below, the situation in the U.S. was dismal
enough that plaintiffs’ lawyers for persons with cancer went to the U.S. Congress
and testified that too much money and time was being devoted to claims by
persons with pleural plaques and other nonmalignant lung conditions.

7.3 Academics And U.S. Plaintiffs’ Lawyers Testified Against Recoveries For Non-
Malignant Conditions: Ultimately, U.S. claiming involving non-malignant
conditions became so extreme that some U.S. plaintiffs’ lawyers and legal
academics went to the U.S. Congress and testified that non-malignant claiming
was blocking cancer victims from obtaining the money and court attention they
needed. Some pertinent citations are as follows:

7.3.1 Written Statement of Lester Brickman, before the Subcommittee on

Commercial and Administrative Law of the U.S. House of
Representatives Committee On The Judiciary, July 21, 2004, available
at http://judiciary.house.gov/legacy/brickman072104.pdf.

7.3.2 Testimony of Lester Brickman before the U.S. Senate Committee on

the Judiciary, re: Asbestos: Mixed Dust and FELA Issues, February 2,
2005, available at http://judiciary.senate.gov/testimony.cfm?id=1362
&wit_id=3963

7.3.3 Testimony of Steven Kazan before the U.S. Senate Committee on the
Judiciary, re: Asbestos Litigation, September 25, 2002, available at
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_
senate_hearings&docid=f:88289.wais

7.3.4 Testimony of Steven Kazan before the U.S. Senate Committee on the
Judiciary, re: The Asbestos Litigation Crisis Continues – It is Time for
Congress to Act, March 5, 2003, available at http://www.kazanlaw
.com /verdicts/articles/kazan_senate.cfm

7.4 Academic Articles On Nonmalignant Claiming: Academic articles also presented

extensive information proving that many but not all of the non-malignant claims
in the U.S. were at best dubious, if not fraudulent. Professor Lester Brickman has
undertaken extensive research and writing, most of which is available at
www.lesterbrickman.com (link will take viewer to a Cardozo University web
page). The Government should consider his most recent and wide-ranging
scholarly article because it describes the impact of entrepreneurial screenings
16
 across different types of tort claims, including claims involving asbestos, silica,
welding fumes, breast implants, and diet drugs. See Brickman, Lester, The Use of
Litigation Screenings in Mass Torts: A Formula for Fraud? (August 11, 2008)
available at SSRN: http://ssrn.com/abstract=12754068

8
Professor Brickman has written a long series of articles. The most recent article says many things, including the
following:

“In the 1988-2006 period, litigation screenings have been responsible for generating at least 90% of the 585,000
claims of nonmalignant asbestos related disease filed with the Manville Trust. The enormous profits realized from
asbestos screenings have led lawyers to use screenings in other mass tort litigations to manufacture diagnoses on a
mass production basis. Screenings have been responsible for nearly 100% of the 20,000 claims of silicosis filed
mostly in state courts in Mississippi in the 2002-2004 period. In addition, litigation screenings have also accounted
for the vast majority of the claims filed in the silicone breast implant, fen-phen diet drug and welding fume
litigations.” Brickman at 9-10.

“One condition that is a sine qua non for litigation screenings is the availability of a cadre of doctors willing to
“manufacture diagnoses for money” – that is, willing, for a fee, to provide whatever medical reports are required to
qualify a substantial percentage of those screened for compensation from bankruptcy trusts or defendants in the tort
system. A mere handful or two of doctors willing to engage in this commerce, however, is sufficient since each of
these doctors can produce hundreds, thousands and even tens of thousands of the requisite medical reports. For
example in asbestos litigation, approximately 25 doctors account for hundreds of thousands of medical reports. In
the welding fume litigation, a single doctor accounts for the vast majority of claims produced by the screenings. In
the fen-phen litigation, a handful of cardiologists are responsible for thousands of specious claims of heart valve
disease.” Brickman at 15.

“A year before Judge Jack issued her report in the silica MDL, I detailed the existence of similar if not identical
process of specious generation of hundreds of thousands of nonmalignant asbestos claims. I concluded that an
illegitimate “entrepreneurial” model had come into use to generate massive numbers of specious nonmalignant
asbestos claims. The core of the “entrepreneurial” model of nonmalignant asbestos litigation is an unprecedented-
in-scale litigant recruitment effort: the litigation screening. Entrepreneurial screening companies are hired by
lawyers to seek out persons with occupational exposure to asbestos. Mobile X-ray vans are brought to local union
halls, motel rooms, or strip mall parking lots where X-rays are taken on an assembly line rate of one every five to
ten minutes. In addition to the X-rays, most screening companies also administer pulmonary function tests (PFTs)
to determine the existence and degree of any lung impairment since that can materially increase the value of a
nonmalignant claim.

The sole object of these screenings is to generate medical reports to be used to support claims of asbestosis, a
scarring of the lung tissue caused by extensive exposure to asbestos. In the 1988-2006 period, approximately
700,000 potential litigants who had been occupationally exposed to asbestos were screened. These litigation
screenings accounted for more than 90% of the approximately 585,000 nonmalignant claims for compensation filed
with the Manville Trust in that period.” Brickman at 16-17.

“Approximately 1,500,000 potential litigants have participated in litigation screenings undertaken in the five mass
tort litigations considered in this article. A comparative handful of litigation doctors used in each of these five
litigations found that a total of approximately 1,000,000 of those screened had the requisite condition conferring a
right of compensation, whether asbestosis, silicosis, an auto immune disease, moderate mitral or aortic valve
regurgitation, or a neurological disorder. On the basis of the evidence I have examined, I estimate that
approximately 900,000 of these claims were based on diagnoses that were “manufactured for money.” I further
estimate that the settlement value of these “manufactured for money” claims is in the range of $35-40 billion dollars
and that the resulting contingency fees are in the range of $13-$14 billion. Finally, I estimate that the litigation
doctors who produced the medical reports for the screened litigants and the screening companies that they worked
for have been paid well in excess of $250 million.” Brickman at 121-22.

“Since doctors are licensed professionals, when testifying on specific causation and rendering diagnoses in their
specialty, they are, by definition, medical experts and therefore qualified to wear the mantle of “expert” when they
17
 7.5 Several U.S. States Passed Statutes To Limit Non-Malignant Claims: In response
to testimony and information of the sort described above, several U.S. states have
in the past three years enacted legislation to block or limit non-malignant asbestos
and silica claims. See Mark Behrens, “Asbestos and Silica Litigation Reform:
Helping the Sick, Curbing Fraud, and Providing Liability Fairness” (2007),
available at http://el.shb.com/nl_images/SHBWebsite/Attorneys/Behrens/
AsbestosandSilicaLitigationReform_2007.pdf

7.6 U.S. State Courts Created Pleural Registries To Halt Unimpaired Claims: Over
ten state courts in the U.S. have on their own enacted “pleural registries” to put
“on hold” cases brought by persons without actual impairment. Under these

testify. In theory, a doctor’s expert status may be challenged on the grounds of lack of reliability by a motion in
limine in a Daubert proceeding. In mass tort litigations, however, even though a comparative handful of litigation
doctors account for hundreds or thousands of medical reports generated during the course of litigation screenings,
defendants lack an effective means of challenging those doctors’ reliability. This is so because courts do not allow
discovery of the data that would enable the most effective challenges to be made. One such set of data that likely
would be discovered - - if discovery were allowed - - is that a litigation doctor who had provided medical reports for
hundreds or thousands of screened litigants, frequently failed to comply with established medical protocols for
diagnosing the condition in question such as performing a thorough physical examination, taking a detailed
occupational and exposure history (rather than relying on a history taken by a nonmedically trained person who is
directly or indirectly employed by the lawyer sponsoring the screening), and undertaking a differential diagnosis to
eliminate other possible causes of the diagnosed disease. Another potentially effective basis for challenge would be
to show that the percentage of all of those that the litigation doctor diagnosed with the signature disease is far higher
than what clinical studies or other medical literature would indicate, or that, according to other evidence introduced
(such as a review by neutral medical experts of a randomized sample of those diagnoses), the doctor’s diagnoses
have a very high error rate. To raise a challenge based on these arguments, defendants need to have access to the
medical records of the hundreds or thousands of other similar claimants diagnosed by that litigation doctor but who
are not litigants in that case. But this access is precisely what defendants are denied. To be sure, during the trial,
defendants can put on their own medical experts to testify that the litigant does not have the disease alleged or that
exposure to the defendant’s product was not a substantial factor in causing the disease - - a traditional “battle of the
experts.” But the effectiveness of this “retail” case-by-case response pales by comparison with the effect of the
“wholesale” production of thousands of medical reports by a handful of doctors to support claims generated by
litigation screenings. The strategy of massing large numbers of claims generated by screenings has been effective in
compelling defendants to enter into large scale settlements of specious if not fraudulent claims. Because litigation
screenings have proven to be immensely profitable and the most effective means of mounting a Daubert challenge
to litigation doctors are essentially precluded as are the use of litigation doctors’ records to challenge claims
generated by screenings, the practice of using a comparative handful of doctors to generate literally thousands and
tens of thousands of medical reports has become standard in certain mass tort litigations such as those discussed in
this article.” Brickman at 124-126.

U.S. District Court Judge James T. Giles [ ] succeeded the late Judge Charles Weiner in presiding over the asbestos
MDL. In January 2007, Judge Giles responded to defendants who were seeking wide ranging discovery of the
litigation doctors’ records, that his “Court is. . . not an investigating Grand Jury. That information which is likely to
be useful in a trial is the kind of information that will be the subject of discovery. . . . I do not presume that there is
fraud in mass tort litigation.” After being exposed to the products of the discovery that he allowed in the proceeding
- - which decisions about the scope of discovery were likely influenced by Judge Jack’s findings – Judge Giles, four
months later, found that the medical reports generated by asbestos litigation screenings “lack reliability and
accountability” and are “inherently suspicious as to their reliability.”

“Because there are tens of thousands of cases in MDL 875, Judge Giles’ orders allowing discovery of the medical
records produced by litigation doctors and screening companies have generated a considerable volume of data which
is being processed by defendants. Nonetheless, for the reasons set forth below, defendants remain stymied when
attempting to elicit or use this data in individual litigations.” Brickman at 129-30.

18
 pleural registry systems, statutes of limitation are suspended and the case can
become “active” if and when a claimant can establish actual impairment under
prescribed standards. See Mark Behrens, “Asbestos and Silica Litigation Reform:
Helping the Sick, Curbing Fraud, and Providing Liability Fairness” (2007),
available at http://el.shb.com/nl_images/SHBWebsite/Attorneys/Behrens/
AsbestosandSilicaLitigationReform_2007.pdf

7.7 U.S. Federal Courts Also Have Blocked Unimpaired Claims: The United States
federal court system has used multi-district litigation rules to consolidate all
federal asbestos claims in one court, and that court has stopped prosecution of
claims by unimpaired persons. The federal courts now allow asbestos litigation to
become active only upon demonstration of actual impairment, and have issued
rulings requiring disclosure of screenings by physicians. See Brickman, supra, at
129-30 (describing orders by Judge Giles).

7.8 The Scan Van Problem Is Not So Easy To Deter: The U.S. witnesses and
academics identified one problem with nonmalignant claiming as the use of “scan
vans” sponsored by plaintiffs’ counsel and staffed by doctors of dubious ethics.
The Consultation asserts that the UK can avoid the “scan van” problem that
erupted in the U.S. Specifically, the Consultation argues that the excessive
claiming scan van problem would be avoided in the UK because, it says, x-rays or
CT scans would be available only for persons where there is a “known risk of
asbestos exposure.” Consultation ¶65.9

7.8.1 Respectfully, the Consultation’s argument is misguided in suggesting

reliance on a standard based on limiting x-rays or CT scans to persons
with a “known risk of asbestos exposure” prior to obtaining x-rays or
CT scans. The relatively meaningless nature of the standard becomes
plain when one considers the ubiquitous use of asbestos in the UK and
then considers the following factual examples:

7.8.2 What would stop a person from obtaining x-rays and scans by
claiming “a known risk of asbestos exposure “ when he or she worked
for some period of time in any kind of industrial plant which included
some or many steam pipes covered with insulation that looked like
asbestos-containing insulation?

7.8.3 What would stop a person from obtaining x-rays and scans by
claiming a “known risk of asbestos exposure” when he or she worked
for some period of time in an office building or school which has
recently been identified in the media as subject to inspections which

9
“The Chief Medical Officer has indicated that the only case for justifying the procedure in this context would be
if there were a reasonable suspicion of asbestos-related lung disease arising from a known risk of asbestos exposure.
Initiating an x-ray or CT scan purely based on a wish to demonstrate pleural plaques would not be justified, as
pleural plaques are benign and do not impair lung function. . . Compliance is monitored by a specialist inspectorate
within the Healthcare Commission and they are empowered to enforce the regulations. If a private “scan van” were
offering x-rays purely for the purpose of assessing eligibility for compensation then the Healthcare Commission
could be asked to investigate.” Consultation ¶65.
19
 identified boilers or steam pipes covered with insulation, or asbestos-
containing ceiling tiles, floor tiles, wallboard, or science lab counters.

7.8.4 What would stop family members from obtaining x-rays and scans by
claiming a “known risk of asbestos exposure” if they could say that a
family member worked at any of the above places, and sometimes
came home wearing work clothing to which asbestos fibers may have
been attached?

7.9 Medical Professionals Call For Detailed Protocol For Administration Of Tests:
The professional medical group submissions in Scotland also have made
effectively the same point that an amorphous standard of a few words is not
enough to avoid scan vans and attendant problems. Thus, both medical groups
called for explicit and detailed protocols before x-rays or CT scans are
administered in the absence of some other medical reason for the examination.

7.9.1 “The BOHS suggest that there should be a protocol for the diagnosis
of asbestos-related pleural plaques and the other conditions covered by
the Bill. The purpose of the protocol should be to identify those who
are likely to have plaques, based on their previous asbestos exposure
and possible history of pleural effusions subsequent to their initial
likely exposure to asbestos, so that they can then go forward for
medical investigations. The criteria for screening could be based on
the length of time since an individual was first exposed to asbestos and
the intensity of their exposure (based on an investigation of the
possibility of relevant exposure to asbestos by a competent person
using a consensus methodology, which we propose should be
developed). This approach would have the benefit of minimizing
unnecessary exposure to ionizing radiation from the medical
diagnostic investigations. There may also be a net benefit for these
individuals in detecting more serious asbestos-related disease.” See
Written submission for the British Occupational Hygiene Society,
D19, at 3-4 (a copy is attached as Exhibit 2).

“We firmly believe that there must be a clear protocol for diagnosis of
asbestos-related pleural plaques and the other conditions covered by
the Bill. The purpose of the protocol should be to channel those who
are likely to have plaques towards appropriate medical diagnosis and
to screen out those who are unlikely to have plaques. Whilst the exact
nature of the relationship between asbestos exposure and pleural
plaques is unknown, there is sufficient understanding to screen out
individuals with a low probability of having this condition. The
screening could be based on the length of time since an individual was
first exposed to asbestos and the intensity of their exposure (based on
the job that they did or a careful investigation of the possibility of
relevant exposure to asbestos by a competent person). This would also
have the benefit of minimizing unnecessary exposure to ionizing
radiation from the medical investigations.” See Written submission

20
 from the Institute of Occupational Medicine, D20, at 2-3 (a copy is
attached as Exhibit 3).

7.10 Manville Trust Dominated By Non-Malignant Claims: The Government also

should consider the devastating impact that non-malignant claiming had on the
Johns-Manville asbestos trust created in the U.S. in 1988. The relevant facts and
figures on claiming against that trust have been many times explained by David T.
Austern, a former U.S. federal prosecutor and sometimes academic writer, who
has been involved with asbestos litigation for decades through his role as General
Counsel of the Johns-Manville asbestos bankruptcy trust. The trust was created
after the six year long bankruptcy of Johns-Manville, a company which Mr.
Austern has said “was, by far, the largest manufacturer of asbestos-containing
products and the largest supplier of asbestos in the world.” Because the trust has
been in existence since 1988, “the data of the Manville Personal Injury Settlement
Trust (“Manville Trust”) is frequently looked to as a source of asbestos data,
trends, and estimates.” See Presentation of David Austern, IBC Legal
Conferences – informa. (Nov. 2007).

7.10.1 Manville Says Medical Models Do Not Work For Predicting

Nonmalignant Claims: For his 2007 presentation in London on
asbestos litigation issues, Mr. Austern explained that the Manville trust
found it impossible to estimate non-malignant claiming using a
medical model because non-malignant claiming is so much driven by
lawyers. Specifically, he said the following regarding estimating non-
malignant claims against asbestos trusts:

“[F]forecasting asbestos future claim filings is more art

than science. Medical models are useful in predicting
future claim filings for malignant diseases. Such models
are utterly useless when trying to predict nonmalignant
claims because most such claims in the past have been
generated by law firms, and not by a diagnosis by a
physician. Indeed the Manville Trust believes that in the
asbestos environment, some of the principles of economic
modeling (that is, behavior modeling) are necessary in
order to predict future asbestos claims. The Manville Trust
believes that [as of 2007] there are disincentives in the
present environment to file nonmalignant claims, and that
the best method to predict the filing of such claims is to
survey asbestos plaintiffs firms to determine their future
behavior.”10

10
The paper presented by Mr. Austern’s is attached as Exhibit 4. Mr. Austern also presented a set of Powerpoint
slides illustrating the impact of the non-malignant claims on the Manville Trust. Set out below are two slides from
Powerpoint; they show non-malignant claims in green and malignant claims in brown, and powerfully show the
massive impact of the non-malignant claiming.
21
22
VIII. The Consultation Underestimates The
Frequency Of Pleural Plaques And Potential Costs
8.1 Flawed Estimate Regarding Incidence Of Pleural Plaques: The Consultation
appears to materially underestimate future plaques claims because it uses a
projection method that appears unsound. Specifically, the Consultation projects a
range of potential claimants by extrapolating from U.S. data indicating that 14.6%
of the U.S. population was exposed to asbestos. Consultation, Evidence Base,
¶¶26-30, at 40-41.11 The Consultation then uses that percentage estimate and
other steps to estimate that plaques will be found in 20-50% of the UK persons
occupationally exposed to asbestos fibers.

11
The following text sets out the estimation methodology set forth in the Consultation, using its
paragraph numbers.

26. The following paragraphs describe a possible methodology, including the assumptions made,
which has been suggested by a company operating in the insurance sector. Whilst the Association
of British Insurers (ABI) has indicated that it is not able to provide meaningful figures on the
number of people with pleural plaques, it has indicated informally that this methodology provides
a reasonable approach to estimating the number of people who will ultimately develop pleural
plaques.

27. Although there are currently no studies that provide a specific estimate for the number of workers
exposed to asbestos in the UK, it is possible to obtain an approximation by using comparable
figures for the U.S. It is widely cited that in the period 1940-1980, 27.5 million workers were
occupationally exposed to asbestos. This equates to 14.6% of the U.S. population at the mid-point
of this period. Applying the same proportion to the UK yields an occupational exposure of around
7.7 million. By taking into account the number of people who have died (from all causes) this
number is likely to be reduced to around four to five million.

28. A number of studies provide estimates for the proportion of workers occupationally exposed to
asbestos who develop pleural plaques. On the basis of such studies, it would appear reasonable to
estimate that 25% to 50% of those with occupational exposure to asbestos ultimately develop
pleural plaques. Combining these estimates with the ones in the paragraph above of four to five
million, would yield a range of 1 million to 2.5 million potential people with pleural plaques.

29. It is unlikely that everyone occupationally exposed to asbestos and who developed pleural plaques
would be scanned and diagnosed – pleural plaques are asymptomatic, and clinicians determine
whether x-rays or CT scans are necessary on a case-by-case basis. In addition, there are
regulations, which apply equally to the NHS and the private sector, governing when an x-ray or
CT scan can be taken. To take into account that not everyone who has pleural plaques will be
diagnosed, we assume that between 20% and 50% of those who have pleural plaques will be
diagnosed. This means that there may be between 200,000 and 1.25 million diagnoses of pleural
plaques.

30. As can be clearly verified from the information in the paragraphs above, there is a high level of
uncertainty regarding the numbers of pleural plaques diagnoses, and this is transposed into a wide
range for the estimates. Consequently, at this stage we have estimated t hat the number of leaflets
produced and distributed could vary between 5,000 and 50,000, and they would be published and
distributed every two years over 22 years (starting in 2008 and lasting for a further 20 years – see
paragraph 35 for more details). Accordingly, the total costs could range between around £10,000
and £30,000 in present value terms. The cost of producing and distributing these leaflets would be
absorbed within Government departmental budgets.

23
 8.2 Plaques Will Be Higher In The UK Due To Extreme European Asbestos Use:
One reason that the Consultation appears to underestimate future cases of plaques
is the extreme amount of asbestos fiber used in the UK and Europe in general. As
shown above in section VI, Europe used as much as 12x the amount of asbestos
fibers that were used in all of North America.

8.3 Consultation Omits Focus On Amphibole Fiber Use: The Consultation also
appears to underestimate future cases of plaques because it does not confront the
fact that UK and European use of asbestos included use of extremely large
amounts of the materially more toxic “amphibole” asbestos fibers, as shown
earlier. With respect to cancer, U.S. EPA and others agree that amphibole fibers
are at least twice as potent as chrysotile, and others say the difference is much
greater. See generally http://pubs.acs.org/subscribe/journals/esthag-
w/2007/jan/science/rr_asbestos.html. Professor Roggli explains that the
differences in potency of fibers are “marked difference.”12

8.4 Consultation Omits Plaques Cases In Future Years 21-40: The Consultation’s
projections also are flawed because the paper omits 20 years of future cases of
plaques. Specifically, the Consultation’s Initial Impact Assessment is based on
pleural plaques appearing and being diagnosed for only 20 more years.
Consultation ¶63. The Consultation does not project costs for years 21-40 despite
the fact that some scientists have reasonably predicted that plaques will continue
to be diagnosed for 40-50 years. Id. According to the Consultation ¶63, it may
well be that plaques “could continue to increase for at least 40 years after
exposure.” Consultation ¶63.

8.4.1 The Consultation’s omission of future years 21-40 is especially

inappropriate because it does not confront the plain science indicating
that plaques develop and calcify over periods of at least 40 years, and
calcification appears to increase as time passes. These facts are plainly
stated in many sources; the following statements are taken from the
Scottish consultation on pleural plaques and show that scientists
expect plaques cases to increase as more time passes:

8.4.1.1 “Hillerdal (1997) commented that a typical feature of

pleural plaques is their slow progression, that many
plaques are not seen until long after a person was first
exposed to asbestos. Hillerdal (1991 reported that the
mean latency of pleural plaques in a study in Sweden was

12
See Roggli, infra, at 108,

“There are marked differences in the potential for various types of asbestos fibers to produce
mesothelioma. While amosite is the most common fiber type associated with mesothelioma
among U.S. workers, crocidolite appears to pose the greatest risk among the commercially
available species, followed by amosite. Whereas the epidemiological association between
exposure to commercial amphibole asbestos is indisputable, the mesotheliogenic potential of
chrysotile has been much debated. The controversy surrounding chrysotile is multifaceted,
influence by the decreased biopersistence of the mineral in lung tissue and the frequent presence
of its natural containment, the noncommercial amphibole form of asbestos tremolite.”
24
 33 years. Light (2001) cites data from Epler and his co-
workers describing the incidence of pleural plaques in a
population of 1,135 patients who had been exposed to
asbestos: within 10 years of first exposure, there were no
plaques; after 20 years, a 10% incidence; after 40 years,
over 50% incidence; with a mean of 33 years between
initial exposure to asbestos and development of pleural
plaques identified. The same author comments that
plaques “usually calcify within several years of becoming
evident radiologically and that calcification rarely occurs
within the first 20 years of initial exposure to asbestos, but
that by 40 years over one third of such individuals have
calcified pleural plaques.” See Written submission for the
British Occupational Hygiene Society, D19, at 3.13
(emphasis added)

8.4.1.2 “While it is widely recognized that pleural plaques are a

consequence of past exposure to asbestos, there is very
little scientific evidence about the exact nature of the link
between the incidence of pleural plaques and asbestos
exposure. It is clear that there is generally a long time
between being first exposed and the appearance of plaques
and that exposure to crocidolite (blue) and amosite (brown)
asbestos appears to be more likely give rise to plaques than
chrysotile (white) asbestos. More specific information
would be helpful in predicting the number of people in
Scotland with pleural plaques. A group of French
scientists have recently published an article dealing with
this topic14. They show that about 50 years after a group of
workers are first exposed to moderate to high
concentrations of asbestos there will be between 60% and
80% of the surviving population with plaques. Assuming
there have been between 30 and 40 thousand people in
Scotland who in the past were in jobs that would have
given rise to moderate to high asbestos exposure15, for
13
The BOHS paper cites the following sources: Hillerdal G. (1997) Pleural plaques: Incidence and epidemiology,
exposed workers and the general population, Indoor Built Environment, 6:86-95; Hillerdal G. (1994) The human
evidence: parenchymal and pleural changes. Annals of Occupational Hygiene, 38: 561-567; Hillerdal G. (1991)
Pleural plaques in the general population. Annals of the New York Academy of Sciences, 643: 430-437; Light R.W.
(2001) Pleural diseases (4th Ed. Lea & Febinger).
14
“Paris C. Martin A, Letourneux M. Wild P. (2008) Modelling prevalence and incidence of fibrosis and pleural
plaques in asbestos-exposed populations for screening and follow-up: a cross-sectional study. Environmental
Health; 7:30. www.ehjournal.net/content/71/30.”
15
“Figure based on an extrapolation of data from a Health and Safety Executive funded project to assess the
occupational cancer burden from past exposure to asbestos and other carcinogens (http://www.hse.gov.uk/
research/rrpdf/rr595ann6.pdf). Assuming about 10% of those exposed to “high” levels in Great Britain were from
Scotland.”

25
 example joiners, plumbers, etc., then the total cost of
compensating them could be between £450m and £800m.
This seems a very high potential cost given that the
condition does not of itself give rise to any health symptoms
and does not reduce life expectancy.” See Written
submission from the Institute of Occupational Medicine,
D20, at 2. (emphasis added)

8.5 Consultation Uses An Incidence Rate That Is Too Low: As described above in
Section 8.1, the Consultation proceeds on the assumption that 20-50% of
occupationally exposed persons will develop plaques. That estimate appears too
low for the several reasons described above, and appears too low because it does
not account for the research indicating that exposed groups will – over time –
have incidence rates of over 50%. Thus:

8.5.1 The French study described above in Section 8.4.1.2 found a 60-80%
incidence rate for pleural plaques when plaques were looked for at 50
or more years since exposure.

8.5.2 The Light treatise described above in Section 8.4.1.1 cites Epler for the
conclusion that the incidence rate will be “over 50%” when 40 years
have passed since exposure.

8.5.3 In light of these and other studies, the Consultation’s range of

estimates should be deemed significantly understated in using a pleural
plaques incidence rate of 20-50%. The cost estimates therefore also
are too low.

8.6 CT Scans Find More Plaques: The Consultation also underestimates future cases
of plaques for other reasons. One of the additional reasons is that the
Consultation does not truly confront the reality that CT scans plainly will result in
the identification of many more cases of plaques than are found through x-rays.
Thus, the BOHS stated in the Scottish Consultation:

“Hillerdal (1994) commented regarding pleural plaques that:

“They are always more widespread and more numerous at autopsy
than seen on the roentgenogram, and in fact only 10-15% are seen
with conventional radiography.” Parkes (1994) commented that:
“Computed tomography is capable of detecting pleural plaques in
the lateral pleura which are invisible on conventional radiographs
…” and “high-resolution CT (HRCT) is helpful in diagnosing
subpleural fat (a cause of wrong diagnosis in 10 to 20% of patients
thought to have plaques on plain radiography …” Light (2001)
commented that: “Conventional and high-resolution CT scans are
more sensitive at detecting pleural plaques than is the standard
chest radiograph. In one study of 159 asbestos-exposed workers
with a normal chest radiograph, pleural plaques were detected in
59 (37.1%) by CT scan. … Focal plaques are commonly observed
in the posterior and paraspinous regions of the thorax, areas that
26
 are poorly seen on chest radiographs.” Seaton (2000) commented
that: “Moreover, pleural fat pads and companion shadows may
easily be mistaken for plaques, leading to a tendency for false-
positive diagnoses. Thus diagnosis of fibrous plaques by routine
chest radiography is unreliable. … In cases of doubt, and where
the additional radiation is considered justifiable, CT proves a
reliable means of diagnosing and defining the extent of plaques.”

It can be concluded that CT scans are not only more sensitive in

detecting pleural plaques than conventional chest radiography but
are also able to differentiate between pleural plaques and other
health conditions that can be mistaken for pleural plaques when
using conventional chest radiography.

CT scans are therefore the preferred diagnostic tool for pleural

plaques.” See Written submission for the British Occupational
Hygiene Society, D19, at 1-2 (emphasis added)

8.7 More Autopsies: The authorities above plainly show that autopsies best reveal the
possibility of plaques. Incentivized by financial payments for pleural plaques, it
seems inevitable that more and more deaths will be followed by requests for
autopsies in hopes of obtaining several thousand pounds if the autopsy produces a
finding of plaques. The Government should not take any action which might be
thought to allow payments for plaques found after death. Indeed, if any
legislation is enacted, it should explicitly preclude compensation for plaques
found after death. And for like reasons, there is no logic to allowing
compensation for plaques found in conjunction with diagnosis of a malignancy.
In such a circumstance, the effects of the cancer would subsume any situation
related to plaques.

27
IX. Compensating Plaques Is Not Good Policy
When One Looks at the Related Science
9.1 Paying compensation for plaques is not good policy when one looks at the
scientific facts regarding causes of plaques, and when one recognizes that science
cannot isolate a specific exposure as “the” cause of existing plaques.

9.2 Roggli’s 2004 Treatise On Asbestos Disease: One of the leading medical treatises
on asbestos disease is by Drs. Roggli, Oury and Sporn of the Duke Medical
School in North Carolina. The treatise is Roggli, Oury & Sporn: Pathology of
Asbestos-Associated Diseases (2d Ed. 2004). Chapter six of the treatise addresses
pleural plaques as the first topic in a chapter devoted to non-malignant conditions.
As is detailed below, Roggli’s chapter 6 reveals the following additional
significant facts which are omitted from the Consultation.

9.3 Cigarette Smoking Significantly Promotes Plaques: The Consultation does not
acknowledge that there is a significant relationship between cigarette smoking and
pleural plaques. However, according to Roggli’s treatise, “cigarette smoking
interacts with asbestos to greatly increase the risk for development of pleural
plaques.” Roggli at 179 (emphasis added). Therefore, the likelihood of being
paid for plaques for some persons will depend in whole or in part on whether they
smoked. It is surely a strange and illogical result if smokers fare better than do
non-smokers in terms of payment for worry.

9.4 Other Substances And Processes Cause Plaques: One of the Consultation’s
omissions is that it does not acknowledge that substances other than asbestos
cause pleural plaques. See Roggli at 171 (discussing findings of pulmonary
reactions to inhalation of “pure” talc not including asbestos fibers); Roggli at 179
(discussing findings of plaques in up to 17% of persons living in areas with soil or
rocks containing fibrous zeolites); Roggli at 179 (discussing development of
unilateral plaques in instances involving old empyema, tuberculous pleuritis, and
organized hemothorax).

9.5 Diagnosing Plaques Is Somewhat of a Lottery: The Consultation does

acknowledge that making payments for plaques to some degree implements a
lottery process because existing technologies frequently miss the presence of
pleural plaques. Consultation, ¶11[6]e.-f. (discussing some of the variables
shown by medical evidence form trial). The Consultation, however, did not fully
spell out the extreme extent of the lottery, and so relevant facts are shown below.

9.6 The Lottery Effect And Fiber Types: In evaluating the lottery aspects, the
Consultation does not confront the science showing that asbestos fibers are not
alike in their physical structures, and so are very different in their potency for
causing plaques and cancer. As described earlier, amphibole fibers are more toxic,
and indeed that is acknowledged by the Consultation at ¶11[4] (quoting findings
of Dr. Rudd). The point is further proved through the Roggli treatise, which
states, at 178: “By means of tissue digests, it has been shown that it is primarily
amphibole asbestos fibers that are found in abnormal amounts in the lungs of
patients with plaques.” (emphasis added). Thus, if amphibole fibers are indeed
28
 present, then they probably caused the plaques. However, the Consultation does
not call for limiting recoveries to the actual responsible party, and so innocent
parties may be held liable. In addition, a person perhaps more at risk of cancer
due to amphibole exposure will receive the same payment as someone exposed to
other less toxic fibers, thus making plaques payments somewhat a lottery that is
not tied to actual risk.

9.7 X-Rays Miss Plaques, Thus Creating A Lottery: The lottery nature of making
payments for plaques is further highlighted by considering detailed data on the
shortcomings of x-rays. According to Roggli, pre-mortem chest x-rays identified
plaques in only 8% - 40% of the situations in which an autopsy later showed the
existence of plaques. In contrast, “Autopsy surveys have indicated that the post-
mortem prevalence of plaques ranges from 4% to as high as 39%.” Roggli at 172
and table 6-1.

9.8 Better Technology Will Yield More Findings Of Plaques: The Consultation
understates the lottery factor that whether a person may be paid for plaques will
depend on the technology available in the area where they live, and when their
health was examined. Plainly those persons who have access to recent CT scans
will more often end up with a finding of plaques. According to the Roggli treatise:
“A study comparing CT scanning to chest radiography found that CT was able to
detect approximately 60% more plaques than chest x-rays and high resolution CT
may be even better.” Roggli at 173.

9.8.1 The lottery nature also should be considered in financial terms.

Suppose, for example, that the average diagnosis rate for pleural
plaques presently is 25% (approximately a midpoint between the 8%
and 40% diagnosis rates discussed above as identified by Roggli).
Suppose that increased use of CT scans causes the rate of diagnosis for
plaques to increase by 2x to 50% or by 4x to 100%. Under those
scenarios, the high end estimate of future claims expenses of £28.6 bn
would result in either a 2x doubling of the estimate to £57.2 bn or
would quadruple the estimate up to £114.4 bn.

9.9 Science Cannot Identify Which Plaques Cases Are Work Related: The
Consultation asserts that the purpose of a No Fault Plaques scheme would be to
pay some compensation “as a result of exposure to asbestos in the workplace.”
Consultation ¶43. The Consultation, however, does not confront the scientific
reality that x-rays and CT scans cannot tie pleural plaques to any particular
exposure, much less to a “workplace exposure;” instead, non-work exposures may
cause pleural plaques. Roggli at 178-79. Indeed, “pleural plaques often occur in
individuals with brief, intermittent, or low-level asbestos exposure.” Id.

9.10 Plaques May Arise From Fibers In The Environment: The Consultation does not
confront the reality that asbestos and asbestiform minerals are naturally occurring,
and so pleural plaques may arise simply from living in areas where the
asbestiform minerals are present, and are mined or otherwise disturbed (Roggli at
178-79). Plaques also may arise from other environmental situations (e.g., living
in the vicinity of past or present factories) in which asbestos fibers were present in
29
 the environment due to circumstances such as factory emissions, and storage of
stockpiles of raw asbestos fiber. Id. (citing articles regarding plaques in persons in
Japan and Corsica). Thus, these specific examples of potential causes of plaques
further demonstrate that plaques payments cannot realistically be limited to
payments only for “workplace exposures.”

9.11 Science Cannot Say Where Exposure Occurred: The Consultation paper also is
flawed because its premise is that payments are intended for exposures suffered in
the UK (but not including Scotland). However, for the many, many thousands of
UK persons who have worked or lived outside the UK, science cannot determine
whether a present case of plaques is a result of asbestos exposures inside or
outside the UK. This is true because plaques cannot be reliably identified to a
specific time period, a specific job or a specific work or home environment.
Roggli at 178-79. Thus, payments inevitably would be made to persons whose
actual “exposure” to “asbestos” occurred outside the UK. Thus, the Consultation
should – but does not – admit that it will be impossible to limit payments to
plaques caused by workplace exposures in the UK, and the door will be open for
payments for plaques caused by inhalation of fibers outside the UK.

30
X. Making Payments Based On “Markers” Would Be
Unsound Public Policy Because Science Is Finding More
And More “Markers” For All Kinds Of Health Situations
10.1 As the Consultation acknowledges, the available evidence indicates that plaques
are benign and do not of themselves indicate an increased risk of future disease.
Consultation ¶65. Accordingly, multiple submitters in Scotland made the point
that making payments for the presence of “markers” of non-malignant conditions
is unwise public policy because science is finding more and more markers for
risks of various types of disease, and society cannot realistically provide a
payment to everyone who has a “marker” for some past “exposure” or some
future risk. This point is not and should not be considered as simply an abstract
issue. Instead, the issue is very real – today – as is shown by the concrete
examples provided below.

10.2 Actual Disease And Markers, But No Compensation Is Paid: Paying

compensation for pleural plaques is not sound policy when one considers that
numerous UK citizens have suffered true disease, but are not paid compensation
because their situation is not traceable to a particular event. For example, breast
cancer is now the most common form of cancer in the UK and the second leading
cause of cancer deaths in women, with more than 12,000 deaths per year.
http://info.cancerresearchuk.org/cancerstats/types/breast/#survival. The
Government, however, does not pay compensation for their actual past harm for
those who survive the diagnosis. The Government also does not pay
compensation for the future risk of breast cancer even though there are clear
markers of risk, such as the fact that “[w]omen with a mother, sister or daughter
diagnosed with breast cancer have an 80% higher risk of being diagnosed with
breast cancer themselves.” Id.

10.3 Scientific Journals Regarding Markers: Markers of past events and/or future risks
are now common enough that scientific journals are devoted specifically to the
discussion of markers for conditions and risks. Indeed, two of these journals are
sensibly known as Disease Markers and Cancer Biomarkers. See generally
http://www.iospress.nl/loadtop/load.php?isbn=02780240.

10.4 Exponential Increase In Genomic Testing: Thanks to continuing and

exponentially increasing advances in science, literally hundreds of tests are now
available to identify persons with genomic patterns that include a particular set of
characteristics that may mark a risk of future disease. According to one legal
commentator, “[a]s of August, 2007, there were 1300 facilities performing tests
relating to more than 700 genetic conditions, compared to 110 facilities and 111
conditions in 1993.” See generally Robert Milligan, Coverage and
Reimbursement for Pharmacogenomic Testing, 48 Jurimetrics The Journal of
Law, Science & Technology, No. 2, 137, 142 (Winter 2008) (Symposium: Law
and the New Era of Personalized Medicine). Thus, there is truly an exponential
rate to the increase in methods for and facilities involved in identifying “markers”
for potential risks.

31
 10.5 Markers In The Chemistry Of Blood And Other Bodily Fluids: In addition, new
fields of science apparently will soon identify yet more markers for risks and
disease. Thus, a field known as “metabolomics” was recently identified as science
that looks even deeper than variations in genes in order to find molecular level
differences in the body chemistry of persons with more or less the “same”
genome. See http://www.economist.com/science/displaystory.cfm?story_id
=11614190 (June 26, 2008). The individual chemistry variations may help
explain why health risks are different for persons with essentially the same
genome.16

10.6 Markers For Other Industrial “Exposures”: The Consultation also does not
confront that markers do exist for other “industrial exposures,” and so making
payments for plaques will lead to demands for compensation for “markers” for
other industrial “exposures.” Thus, the presence of “micronodules” in the body is
said by some to indicate prior inhalation of coal dust or silica dust, but the
micronodules do not indicate impairment. See generally P.A. Genevois, et al,
Micronodules and emphysema in coal mine dust or silica: relation to lung
function, 12 Eur. Respir. J. 1998, 1020–1024, available at
http://www.erj.ersjournals.com/cgi/reprint/12/5/1020.pdf.

10.7 Markers For Cholesterol: For another example of the prevalence of markers,
consider that a recent scientific article from British and Dutch researchers
identified a particular gene as a marker of a risk of cholesterol levels that may
relate to health risks. http://news.bbc.co.uk/2/hi/health/7459766.stm

16
The article explains the science as follows: “Studying genes alone does not provide such detail. Genes are
similar to the plans for a house; they show what it looks like, but not what people are getting up to inside. One way
of getting a snapshot of their lives would be to rummage through their rubbish, and that is pretty much what
metabolomics does. “If I asked someone to hold their breath for a while and we were monitoring their genome, we
would think nothing had happened,” says David Wishart, head of the Human Metabolome Project at the University
of Alberta in Canada. “But if we took a look at their metabolome, we would see all kinds of wild changes.” Dr
Wishart and his team of 50 scientists late last year released the first draft of the human metabolome—a database that
contains the chemical fingerprints of some 3,000 metabolites, 1,200 drugs and 3,500 food components found in the
human body.

Metabolomics studies metabolites, the by-products of the hundreds of thousands of chemical reactions that
continuously go on in every cell of the human body. Because blood and urine are packed with these compounds,
it should be possible to detect and analyze them. If, say, a tumor was growing somewhere then, long before
any existing methods can detect it, the combination of metabolites from the dividing cancer cells will produce
a new pattern, different from that seen in healthy tissue. Such metabolic changes could be picked up by
computer schemes, adapted from those credit-card companies use to detect crime by spotting sudden and
unusual spending patterns amid millions of ordinary transactions. (emphasis added)

How far away is this vision? It is beginning. Douglas Kell, a researcher at the University of Manchester in Britain,
has already created a computer model based on metabolite profiles in blood plasma that can single out pregnant
women who are developing pre-eclampsia, or dangerously high blood pressure. Research published last year by
Rima Kaddurah-Daouk, a psychiatrist at the Duke University Medical Centre in America, may not only provide a
test for schizophrenia, but also help with its treatment. She found a pattern of metabolites present only in the blood
of people who had been diagnosed with schizophrenia. The patterns change according to the antipsychotic drugs
patients take and this may throw light on why some respond well to certain drugs, but others suffer severe side-
effects.”

32
10.8 September 16, 2008 News – Markers For Bisphenol A From Plastics: On
September 16, 2008, yet another possible marker for a possible problem was
identified through research at the UK’s Peninsula Medical School in Exeter. The
researchers looked at BPA levels in the urine of 1,400 U.S. adults, and analyzed
whether the participants had ever been diagnosed with one of eight major
diseases, including arthritis, stroke and thyroid disease. The group with the
highest levels of Biosphenol A (BPA) in their urine were found to be more than
twice as likely to have diabetes or heart disease. http://news.bbc.co.uk/2/hi/health/
7612839.stm. Will the UK pay compensation to similarly situated UK residents?

10.9 Better Policy Is To Invest In Research On Cancer: Instead of paying money to

persons with asymptomatic markers of a past event, the Government should focus
time, money and attention on increasing the pace of scientific research aimed at
cancer in general, and mesothelioma in particular. Indeed, during the May 14,
2008 Annual Asbestos Seminar of the House of Commons, there was discussion
of what some call the “silent epidemic” of mesothelioma, a disease said to
currently causes more deaths than road traffic accidents. http://www.lkaz.
demon.co.uk/ban71.htm (issue 71, summer 2008, of the British Asbestos
Newsletter by Ms. Laurie Kazan-Allen). One of the presenters, Sheffield
Consultant Thoracic Surgeon, Dr. John Edwards, is said to have described UK
research into mesothelioma as “in the doldrums due to a lack of government
support; in 2007 there was just one project dedicated to mesothelioma research
funded by Cancer Research UK and none by the Medical Research Council,
despite the fact that from 1995-2004 the incidence rate of this disease in UK
females grew by 45% – faster than any other cancer.” Id. Dr. Edwards also is said
to have urged UK adoption of treatment options developed overseas, and to have
“urged the government to consult with patients, medical specialists and other
stakeholders on the establishment of a National Research Centre for Asbestos-
Related Diseases so that cutting edge research could be undertaken.” Id. The same
newsletter issue goes on to cite other concrete recommendations already identified
by UK doctors as needed steps for providing the most useful possible treatment
for persons suffering from mesothelioma. Id.

10.10 Australian Government Focusing On Cancer Research: The same hearing also
included a presentation illustrating that a proactive government approach to
cancer is a step already taken by Australia. The presentation was by Professor
Bruce Robinson, Director of the (Australian) National Center of Asbestos-Related
Disease Research (NCARD). As summarized in the same issue of Ms. Kazan-
Allen’s newsletter, Dr. Robinson’s presentation covered the following:

“If money were no object,” Australian researchers asked “what

would it take to cure or prevent malignant mesothelioma?” A plan
was drawn up, nicknamed the “Willoughby Challenge,” which
specified what would be done, who would do it, when the research
would be conducted and how long it would take. The government
committed $7 million for the research program which is following
11 themes including projects investigating the following:

33
 • the existence of susceptibility genes;
• the efficacy of new treatments e.g., gene therapy and vaccines;
• the use of molecular disease predicators.”

Thus, there is precedent for concluding that Government’s role should be to take
the lead in finding answers for cancer, instead of paying out money to individuals.

10.11 Scientific Advances: It is not “Pollyanna” to think that real, accelerated progress
is possible with respect to treating cancers in new ways that may at least permit
doctors to meaningfully slow or halt tumor progression. The same issue of Ms.
Kazan-Allen’s newsletter report that the House of Commons also was told by Dr.
Robinson that in fact science is making potentially significant progress with
respect to cancer:

“Citing research results regarding immunotherapy using the monoclonal

antibody Anti CD40, Professor Robinson said: “There is value in
combining immunotherapy with chemotherapy in scientifically validated
ways.” One hundred and thirty days after tumor injection, 80% of mice
were cured of mesothelioma when Anti CD40 therapy was undertaken
after treatment with Gemcitabine had been given. On behalf of NCARD,
Professor Robinson seconded calls made during the meeting for a UK
Research Center on Asbestos-Related Diseases, and hoped that
collaborative efforts between the two facilities would be productive.”
(emphasis added).

10.12 In addition, science writers for sober media continue to report on meaningful
reasons for optimism with respect to cancer. Thus, the September 11, 2008 issues
of The Economist reported on potentially great breakthroughs in the science of
cancer as it relates to stem cells. http://www.economist.com/science/displaystory
.cfm?storyid=12202589. Meanwhile, research on antiangiogenic treatments
continue to show progress towards depriving tumors of the blood vessels that they
must have to grow. See http://www.cancer.gov/cancertopics/factsheet/therapy
/angiogenesis-inhibitors (National Cancer Institute website on antiangiogenesis).
See also http://www.mesotheliomaweb.org/angio.htm (page explaining
antiangiogenesis and resources).

34
XI. Paying Compensation For Plaques Would Be Poor
Policy Because The Potential Expenses, Variables,
Flaws Are Too Uncertain And Too Extreme
11.1 Consultation Estimates: For the proposal to reverse the House of Lords, the
Consultation acknowledges a low-end projected estimate cost of £3.7 bn if the
law were changed to permit claiming for plaques. Consultation ¶33. At the high-
end, the Consultation acknowledges that the scheme’s costs might be as high as
£28.6 bn. Id.

11.2 For the proposed No Fault Plaques Scheme, the Consultation projects expenses of
up to £4.6 billion to implement a scheme based on £5,000 payable to persons
identified as having plaques.

11.3 Admitted Uncertainty: The Consultation admits that there is material uncertainty
regarding its estimate: “The wide range of the costs reflects the uncertainty
regarding the potential number of claims. At this time and on the basis of the
available information it is not possible to provide a narrower range.” Consultation
¶33. Later, the Consultation is even more explicit in admitting: “Estimates
regarding the potential numbers of people who would be eligible for financial
support are therefore highly uncertain, as they depend on a number of
assumptions that cannot be verified, such as how many people will ultimately
develop pleural plaques, and of these, how many would be diagnosed.”
Consultation ¶45.

11.4 Incidence Rate Estimate Too Low: The Consultation’s estimate for the incidence
rate of pleural plaques appears to be too low as shown earlier in section VIII.
Among other flaws, the estimate does not reflect recent medical studies showing
pleural plaques incidence rates over 50% for persons with workplace exposures,
and the estimate does not account for Europe’s use of significant amounts of
amphibole fibers or its more recent use of materially more asbestos fibers than
were used in North America.

11.5 Twenty More Years Omitted: In addition, as shown above, the Consultation does
not explicitly confront additional factors that render the cost estimates even more
uncertain. For one, the Consultation’s monetary estimates do not include the full
potential range of future payments. Thus, the Consultation’s Initial Impact
Assessment is based on pleural plaques appearing and being diagnosed for only
20 more years. Consultation ¶63. The Consultation does not project costs for the
40-year period that some have very reasonably predicted will be the period in
which pleural plaques will continue to be diagnosed. Id. According to the
Consultation ¶63, it may be that plaques “could continue to increase for at least 40
years after exposure.” Consultation ¶63.

11.6 Omission Of Costs Of Administration: The Consultation does not monetize the
cost of or bureaucracy needed to deal with annual or other periodic retests for
persons who – logically – may assert that the need for annual x-rays or scans to

35
 see if plaques turn up during a 40-year period. That period of time would entail
the involvement of at least two generations of government workers.

11.7 What Is A UK Exposure – Definitional Problems: The Consultation also does not
confront various definitional issues that could further increase the already
underestimated expenses. For example, would legislation exclude or include
compensation for inhalation of future compensation for asbestos fibers aboard
government war ships located in the UK? What about future compensation for
sailors exposed on UK war ships assigned to the Persian Gulf? Private ships
flagged or insured in the UK? Exposures occurring while working on offshore oil
rigs in the North Sea? What about plaques in UK citizens who work on the
movable oil production platforms so much in use in the North Sea and off of
various coasts?17

11.8 Former Territories: Would there be compensation for persons previously or

currently in the 14 British Overseas Territories? What about the Crown
dependencies Jersey, Guernsey and the Isle of Man, or persons exposed in Hong
Kong, Southern Rhodesia, or British Honduras when they were under British
control? How would one hope to determine whether asbestos exposures occurred
during the period of the UK influence?

11.9 Mobility Also Creates Uncertainty: Today’s mobile society also creates further
uncertainty as to the volume of future claims. Consider, for example, factors such
as persons moving in and out of the UK and/or its territories. Suppose a British
citizen inhaled asbestos fibers in the UK but later immigrated to Australia –
would he still be eligible to make a claim in Great Britain since the exposure
occurred in Great Britain? Suppose a person inhaled asbestos fibers while living
in a different country and also was exposed in the UK, and then becomes a
naturalized UK citizen by marriage or by years – would the scheme or common
law pay for any and all plaques found in that person?

11.10 Recoveries From Two Schemes: Additional uncertainty as to costs exists because
the Consultation does not address other points regarding the scope of eligibility
for payments. For example, the Consultation’s premise is that a no fault scheme
or reversal of the House of Lords would be intended to provide a remedy for civil
claim for persons in the UK but excluding Scotland. Consultation ¶41. The stated
goal, however, is not so simple to achieve. One obvious issue would be whether a
person exposed to asbestos in both Scotland and in England could make a claim in
both Scotland and England. If that is not contemplated, how will it be stopped,
effectively?

17
http://en.wikipedia.org/wiki/Oil_platform#Floating_production_systems.
36
XII. Specific Responses To Questionnaire And Impact Assessment
The following sets out the full text of questions posed by the Government in its
Consultation paper:

12.1 Do you have any estimates regarding:

12.1.1 The number of people currently diagnosed with pleural plaques?

A: No

12.1.2 The future number of people who will develop pleural plaques?

A: Yes. Please see section VIII, supra.

12.2 Do you have any estimates regarding the future distribution of pleural plaques
cases, including the period of time over which people will develop pleural
plaques?

A: Yes. Please see section VIII, supra.

12.3 Do you have any estimates regarding the number or people diagnosed with pleural
plaques prior to the House of Lords decision and who have not received
compensation?

A: No.

37
XIII. Background on Author
The author of this submission, Kirk T. Hartley, is an American lawyer. Mr. Hartley has
been involved in asbestos litigation in the U.S. since 1984 as a lawyer representing industry
entities. Clients represented in asbestos litigation include GAF Corporation, W. R. Grace and
various entities which made and sold pumps and valves, among others. In addition, Mr. Hartley
also has been involved in insurance recovery efforts in which members of industry seek to have
their losses covered by insurance, and in litigation between corporations regarding obligations
and rights related to underlying asbestos cases. Mr. Hartley also has been involved in federal
legislation asbestos legislation issues, and has been counsel to an industry member opposed to
some of the aspects of the Federal-Mogul asbestos bankruptcy in the U.S. Further information is
available at www.butlerrubin.com.

For some time now, Mr. Hartley has been following the asbestos litigation situation in the
UK in particular and in the EU in general. In 2004, Mr. Hartley published an article specific to
issues that industry will face as asbestos litigation spreads into Europe. See “What to Expect as
the American Asbestos Litigation Industry Moves Into Europe,” Comparative Law Yearbook of
International Business, Vol. 26, pp. 597-614 (2004). Mr. Hartley has spoken in London each of
the past three years on asbestos litigation issues as they are emerging in the UK in particular and
the EU in general. Mr. Hartley also is one of three authors of a blog known as
www.globaltort.com.

Kirk T. Hartley
Butler Rubin Saltarelli & Boyd LLP
70 West Madison Street, Suite 1800
Chicago, Illinois 60602-4257
Tel: 312-444-9660
Fax: 312-444-9702

38
EXHIBIT 1
EXHIBIT 2
 D19

Justice Committee

Damages (Asbestos-related Conditions) (Scotland) Bill

Written submission from the British Occupational Hygiene Society

Summary

Asbestos-related pleural plaques are asymptomatic and are not an indicator of any
increased risk of other asbestos disease. Conventional chest X-rays are an
unreliable way of diagnosing this condition and the preferred approach would be to
use computed tomography (CT), which has a much greater level of radiation
exposure than a conventional chest X-ray. In order to minimise unnecessary
exposure to radiation, the British Occupational Hygiene Society believes that there
should be a screening protocol to minimise the population radiation dose from CT
scans carried out solely to identify pleural plaques. This screening procedure should
be based on the relative risk of the diagnostic procedure versus the risk of asbestos
related disease. It should include information about the previous asbestos exposure
of the individual, particularly the time since first exposure and the likely intensity of
exposure.

The British Occupational Hygiene Society (BOHS)

The British Occupational Hygiene Society (BOHS) is a learned society with the
objects of improving scientific knowledge and practice in the prevention of ill health
from occupational and environmental hazards. Its members are drawn from a wide
range of multidisciplinary specialities and include leading academics and
practitioners in the field. Our organisation includes the Faculty of Occupational
Hygiene, which provides examinations and qualifications in occupational hygiene.
Our publication, the Annals of Occupational Hygiene is acknowledged as one of
the leading global scientific journals in the field.

Comments on the draft Bill

1. If this Bill is introduced there should be a system for identifying those persons
likely to have had sufficient asbestos exposures to develop pleural plaques. This is
essential to minimize unnecessary exposure of potential claimants to ionizing
radiation from chest CT scans.

2. In assessing the need for radiographic investigations it is necessary to be

aware of the relative reliability of conventional chest radiograph and computed
tomography (CT) scans in identifying the presence of pleural plaques.

Hillerdal (1994) commented regarding pleural plaques that: “They are always more
widespread and more numerous at autopsy than seen on the roentgenogram, and in
fact only 10-15% are seen with conventional radiography.” Parkes (1994)
commented that: “Computed tomography is capable of detecting pleural plaques in
the lateral pleura which are invisible on conventional radiographs …” and “high-
resolution CT (HRCT) is helpful in diagnosing subpleural fat (a cause of wrong
diagnosis in 10 to 20% of patients thought to have plaques on plain radiography …”
Light (2001) commented that: “Conventional and high-resolution CT scans are more
1
 D19

sensitive at detecting pleural plaques than is the standard chest radiograph. In one
study of 159 asbestos-exposed workers with a normal chest radiograph, pleural
plaques were detected in 59 (37.1%) by CT scan. … Focal plaques are commonly
observed in the posterior and paraspinous regions of the thorax, areas that are
poorly seen on chest radiographs”. Seaton (2000) commented that: “Moreover,
pleural fat pads and companion shadows may easily be mistaken for plaques,
leading to a tendency for false-positive diagnoses. Thus diagnosis of fibrous plaques
by routine chest radiography is unreliable. … In cases of doubt, and where the
additional radiation is considered justifiable, CT proves a reliable means of
diagnosing and defining the extent of plaques.”

It can be concluded that CT scans are not only more sensitive in detecting pleural
plaques than conventional chest radiography but are also able to differentiate
between pleural plaques and other health conditions that can be mistaken for pleural
plaques when using conventional chest radiography.

CT scans are therefore the preferred diagnostic tool for pleural plaques.

3. It is essential to appreciate that the radiation dose to which the patient is

exposed during a CT scan is substantially higher than that during a conventional
chest X-ray.

For example, the Health Protection Agency (2008) publishes a table on Patient Dose
information on its website. The following information has been abstracted from that
table:

X-ray examination Typical Equivalent Lifetime

effective doses period of additional risk of
(mSv) natural fatal cancer per
background examination
radiation
Chest (single PA 0.02 8 3 days 3.6 1 in a million 1 in
film) CT chest years 2500

Note: Approximate risk for patients 16-69 years old; for geriatric patients divide
risks by about 5.

4. As the HPA information indicates the risk is strongly associated with the age
of the person at the time they receive their CT scan and for people aged 55 years
and above is probably about an order of magnitude lower than the average risk for
patients between 16 and 69 years (Brenner and Hall, 2007). However, there is no
clear health benefit associated with the risk from these investigations and so it could
be argued that any radiation exposure is unnecessary in relation to potential health
benefits.

5. As can be seen from the above table a CT chest scan exposes the patient to
about a 400 times higher radiation dose than a conventional chest X-ray and
produces an additional risk of 1 in 2,500 of developing a fatal cancer. Given the
possible high number of people seeking compensation it is inevitable that some will
ultimately die as a consequence of the diagnostic investigations.
2
 D19

6. It is therefore suggested that to minimize the ionizing radiation risk associated

with CT scans undertaken to determine whether a patient has developed pleural
plaques, there should be criteria to select only those individuals with sufficient
asbestos exposures to have a chance to have developed pleural plaques or other
more serious asbestos-related disease.

7. The BOHS believe that it is not appropriate to look for plaques in individuals
who have had slight exposure to asbestos, for example less than 0.1 fibres/ml for at
least a year, or in people who were exposed less than 10 to 20 years ago. In
addition, people exposed to amphibole asbestos would be more likely to have
asbestos-related pleural plaques. This group would also be more likelyto have an
increased risk for mesothelioma.

8. Hillerdal (1997) commented that a typical feature of pleural plaques is their

slow progression, that many plaques are not seen until long after a person was first
exposed to asbestos. Hillerdal (1991) reported that the mean latency of pleural
plaques in a study in Sweden was 33 years. Light (2001) cites data from Epler and
his co-workers describing the incidence of pleural plaques in a population of 1,135
patients who had been exposed to asbestos: within 10 years of first exposure, there
were no plaques; after 20 years, a 10% incidence; after 40 years, over 50%
incidence; with a mean of 33 years between initial exposure to asbestos and
development of pleural plaques identified. The same author comments that plaques
“usually calcify within several years of becoming evident radiologically and that
calcification rarely occurs within the first 20 years of initial exposure to asbestos, but
that by 40 years over one third of such individuals have calcified pleural plaques.

9. Light (2001) cites Epler et al as noting that pleural effusions occur sooner
after asbestos exposure than do pleural plaques or pleural calcification and that in
the study noted above, many patients developed pleural effusions within 5 years of
the initial exposure, and all did so within 20 years of the initial exposure. That is, it
could be considered that a history of pleural effusions subsequent to likely exposure
to asbestos could be a marker that such exposures had occurred.

10. It must be appreciated that not all patients with pleural effusions would have
gone to their GP. The importance of having a history of pleural effusions would
therefore be as positive information to reinforce a history of exposure to asbestos
rather the lack of such a history being a means of excluding some claimants.

11. The BOHS suggest that there should be a protocol for the diagnosis of
asbestos-related pleural plaques and the other conditions covered by the Bill. The
purpose of the protocol should be to identify those who are likely to have plaques,
based on their previous asbestos exposure and possible history of pleural effusions
subsequent to their initial likely exposure to asbestos, so that they can then go
forward for medical investigations. The criteria for screening could be based on the
length of time since an individual was first exposed to asbestos and the intensity of
their exposure (based on an investigation of the possibility of relevant exposure to
asbestos by a competent person using a consensus methodology, which we
propose should be developed). This approach would have the benefit of minimizing
unnecessary exposure to ionizing radiation from the medical diagnostic

3
 D19

investigations. There may also be a net benefit for these individuals in detecting
more serious asbestos-related disease.

John Cherrie, BOHS President 2007/08

Robin Howie, BOHS President 1997/98

Disclaimer
The views in the document provide a considered opinion of the issues as they relate
to the objects of the society to improve scientific knowledge and practice in the
prevention of ill health from occupational and environmental hazards. It may not
necessarily coincide with the views of individual members or their employing
organisations. It is not intended to convey any legal interpretation.

References

Brenner DJ, Hall EJ. (2007) Computed Tomography -an increasing source of
radiation exposure. New England Journal of Medicine, 357: 2277-84.

Health Protection Agency (2008) Patient Dose information. Downloaded from the
th
HPA website on 17 August 2008:
http://www.hpa.org.uk/web/HPAweb&HPAwebStandard/HPAweb_C/119573382694
1

Hillerdal G. (1997) Pleural plaques: Incidence and epidemiology, exposed

workers and the general population. Indoor Built Environment, 6: 86-95.

Hillerdal G. (1994) The human evidence: parenchymal and pleural changes.

Annals of Occupational Hygiene, 38: 561-567.

Hillerdal G. (1991) Pleural plaques in the general population. Annals of the New
York Academy of Sciences, 643: 430-437.
th
Light RW. (2001) Pleural diseases, 4 Edition. Lea & Febinger: Philadelphia.
rd
Parkes WR. (1994) Occupational lung disorders, 3 Ed. Butterworth-Heinmann
Ltd.: Oxford.

Seaton A. (2000) Diseases of the pleura. In: Crofton and Douglas’s respiratory
th
diseases Volume 2, 5 Edition. Ed. A Seaton, D Seaton and AG Leitch. pp 1152-
1181. Blackwell Science: Oxford.

4
EXHIBIT 3
 D20

Justice Committee

Damages (Asbestos-related Conditions) (Scotland) Bill

Written submission from the Institute of Occupational Medicine

Summary

In principle we do not agree that it is appropriate to compensate people for

asbestos-related pleural plaques because these conditions are asymptomatic
and are not necessarily an indication of any more serious future health
consequences than similarly exposed people without pleural plaques. Also,
we have concerns that the Bill, and how it is implemented, may be a cause of
unnecessary anxiety to the many people who have pleural plaques following
past exposure to asbestos; and that the overall numbers – and so the overall
cost – may have been under-estimated. There is a small cancer risk from the
medical diagnostic procedures needed to identify pleural plaques, however as
there is no health benefit from these tests the number of people going forward
for investigation should be restricted to those who are likely to have this
condition. We make some suggestions aimed at minimising concerns, at
streamlining the process, at reducing the amount of medical examinations that
involve exposure to radiation; and, generally, at ensuring that, if the scheme
goes ahead, public money goes as much as possible to those who have
experienced past exposure to asbestos, rather than to professionals involved
in the compensation process.

The Institute of Occupational Medicine (IOM)

The Institute of Occupational Medicine (IOM), a self-funding charity, and its

subsidiary IOM Consulting Limited were formed with the primary aim of
carrying out research, consulting and services to help make workplaces safer
and prevent ill-health. Though our activities are international and include
environmental as well as occupational risks, our main activities are focused
on the health and safety of workers in Great Britain. IOM’s headquarters are
based in Edinburgh and IOM is the main source of independent scientific
expertise in Scotland concerning occupational health issues.

Comments on the draft Bill

1 In principle we do not agree that it is appropriate to compensate people

for asbestos-related pleural plaques because these conditions are
asymptomatic and are not necessarily an indication of any more serious future
health consequences, compared with similarly exposed people without pleural
plaques. In addition, we are concerned that the Bill may increase the anxiety
of people who have previously been exposed to asbestos and the medical
diagnostic procedures used to identify pleural plaques will increase the risk of
cancer for the potential Claimants.

2 We would prefer that the Scottish Government did not proceed with this
Bill, but if it does go ahead then we believe that the legislation needs to be

1
 D20

implemented with great care to avoid unnecessary anxiety and risks amongst
people with this condition.

3 Pleural plaques are a sign of past exposure to asbestos; and a high

proportion of people who have had moderate exposure to asbestos will
eventually have pleural plaques. However, a much smaller proportion will
develop and die from mesothelioma or asbestos-related lung cancer.
Importantly, there is no scientific evidence that pleural plaques are directly
associated with asbestos-related cancers; i.e. there is no evidence that
people who develop pleural plaques are at greater risk of asbestos-related
cancer than others with the same amount of past exposure to asbestos,
although there is little reliable scientific information in this area. We feel that
many claimants may wrongly construe that pleural plaques are a marker of
more serious asbestos illness rather than a marker of past asbestos
exposure. In our view, if Parliament enacts this Bill then it will be most
important for all stakeholders to give clear and consistent statements about
the benign nature of plaques and that having this condition does not mean
that there is any greater risk of other serious asbestos conditions. We suggest
the Government should convene a group of interested parties to agree a
common statement along these lines.

4 While it is widely recognized that pleural plaques are a consequence of

past exposure to asbestos, there is very little scientific evidence about the
exact nature of the link between the incidence of pleural plaques and
asbestos exposure. It is clear that there is generally a long time between
being first exposed and the appearance of plaques and that exposure to
crocidolite (blue) and amosite (brown) asbestos appears to be more likely give
rise to plaques than chrysotile (white) asbestos. More specific information
would be helpful in predicting the number of people in Scotland with pleural
plaques. A group of French scientists have recently published an article
dealing with this topic1. They show that about 50 years after a group of
workers are first exposed to moderate to high concentrations of asbestos
there will be between 60% and 80% of the surviving population with plaques.
Assuming there have been between 30 and 40 thousand people in Scotland
who in the past were in jobs that would have given rise to moderate to high
asbestos exposure2, for example joiners, plumbers, etc, then the total cost of
compensating them could be between £450m and £800m. This seems a very
high potential cost given that the condition does not of itself give rise to any
health symptoms and does not reduce life expectancy.

5 We firmly believe that there must be a clear protocol for diagnosis of

asbestos-related pleural plaques and the other conditions covered by the Bill.
The purpose of the protocol should be to channel those who are likely to have
plaques towards appropriate medical diagnosis and to screen out those who
are unlikely to have plaques. Whilst the exact nature of the relationship
between asbestos exposure and pleural plaques is unknown, there is
sufficient understanding to screen out individuals with a low probability of
having this condition. The screening could be based on the length of time
since an individual was first exposed to asbestos and the intensity of their
exposure (based on the job that they did or a careful investigation of the

2
 D20

possibility of relevant exposure to asbestos by a competent person). This

would also have the benefit of minimizing unnecessary exposure to ionizing
radiation from the medical investigations.

6 Currently there are considerable differences between experts in

judging the intensity of past asbestos exposure. The Government could take
the opportunity to bring together the relevant experts in Scotland to develop a
standardized approach to these assessments. We believe this would further
help the Courts in arriving at fair settlement of asbestos diseases cases.

7. Finally, if the Bill is enacted there will be a great deal of information

collected about the past asbestos exposure of people with pleural plaques. In
many cases there will be attempts to identify witnesses who worked with the
pursuer and so there is a great opportunity to conduct a research study to
further understand the link between asbestos-related plaques and exposure to
asbestos, and whether having plaques in any way increases the individual’s
chance of more serious asbestos disease.

John Cherrie
Research Director

Fintan Hurley
Scientific Director

1
Paris C, Martin A, Letourneux M, Wild P. (2008) Modelling prevalence and incidence of
fibrosis and pleural plaques in asbestos-exposed populations for screening and follow-up:
a cross-sectional study. Environmental Health; 7: 30. www.ehjournal.net/content/7/1/30
2
Figure based on an extrapolation of data from a Health and Safety Executive funded project
to assess the occupational cancer burden from past exposure to asbestos and other
carcinogens (http://www.hse.gov.uk/research/rrpdf/rr595ann6.pdf). Assuming about 10% of
those exposed to “high” levels in Great Britain were from Scotland.

3
EXHIBIT 4
 ASBESTOS FACTS, FIGURES: ASSESSING THE FUTURE
LEVEL AND SCALE

David T. Austern

This is an introduction to the Asbestos Filing Charts that follow.

Asbestos is a naturally occurring substance and one is forced to speculate that so are

claims against asbestos manufacturers by those who have been exposed to asbestos and

asbestos-containing products. In the United States, the RAND Corporation has estimated that

almost three-quarters of a million claims have been filed against defendant companies and that

over $70 billion had been spent by such companies by the end of 2002. Over one million total

claims are expected and asbestos liabilities have been estimated to be between $200 and $300

billion by the end of the United States asbestos experience, an end unlikely to occur before

2049.

There is no single source of comprehensive information in the United States regarding

asbestos injuries and claims. However, in addition to the RAND study noted above, the

Manville Personal Injury Settlement Trust (hereinafter, the “Manville Trust”) is frequently

looked to as a source of asbestos data, trends, and estimates. The Manville Trust was

established following the bankruptcy of the Johns Manville Corporation in August, 1982. Over

six years later, in November 1988, the Trust commenced operations. Although the nearly six-

and-one-years it took to resolve the Manville bankruptcy seems an inordinate length of time,

several later asbestos bankruptcies have taken even longer to resolve, and the Dow Corning

Breast Implant Bankruptcy was resolved nine years and one month after bankruptcy filing.

Manville was, by far, the largest manufacturer of asbestos-containing products and the

largest supplier of asbestos in the world. The next largest company in terms of numbers of

asbestos-containing products was Owens Corning Fiberglas. That company manufactured

approximately 3,000 asbestos-containing products. The Manville Corporation manufactured

over 4,500 asbestos-containing products. Not surprisingly, therefore, the Manville Trust the

second oldest asbestos bankruptcy trust, has received more claims than any other trust or

defendant. In short, the Manville Trust claim statistics and data are a proxy for total United

States asbestos filing information because almost all injured workers in the United States have

filed with the Manville Trust.

Because the Manville Trust essentially does not have a statute of limitations with

respect to claim filings, the timing of claims filed against the Manville Trust often differs from

claims filed against solvent defendants in federal and state courts, and also differs from claims

filed against other asbestos trusts, even those that have been in existence almost as long as the

Manville Trust.

While the charts that follow reflect claim filings against the Manville Trust from the

effective date in 1988 through October 31, 2007, the trends that will be noted are essentially

confined to the period between 2002 and 2007. First, with respect to 2002 through 2004, claim

filings were higher for the three-year period than in any previous three-year period in the

history of the Manville Trust. However, as noted in the first chart –Claim Filings – there was a

change in the Trust Distribution Process (the “TDP” on the chart) in 2002. This change, which

made it more difficult for claimants to establish both asbestos exposure and nonmalignant

injury, resulted in many claimants filing before the effective date of the change, October 2002.

Thus, one should consider smoothing out the high claim filings in 2002, 2003 and 2004 and

consider whether some significant number of claims would have been filed in later years had it

not been for the TDP change in 2002.

-2-
 From 2004 through 2007, a number of developments in the asbestos litigation and claim

world occurred and these developments appear to be reflected in the Manville Trust filing data.

During this period, asbestos defendant companies and trusts, like Manville, experienced a

significant drop in claim filings for nonmalignant claims. At the same time, however,

mesothelioma claims remained constant or increased slightly. One should note that plaintiff

law firms in the United States frequently are reluctant to file mesothelioma claims against

asbestos trusts, the Manville Trust included, before the mesothelioma claim is settled or tried in

the tort system. This happens because, almost without exception, courts will set off from a

judgment against a defendant by the amount of compensation the plaintiff received from other

joint defendants.

Other factors have contributed to the decrease in filing of nonmalignant claims during

the period 2004-2007. Several states, including Florida, Georgia, Kansas, Ohio, and Texas,

have enacted so-called “Litigation Reforms” that require the production of defined medical

criteria in order for the plaintiff to be eligible for compensation. Such reforms address mostly

nonmalignant claims. In addition, many unimpaired claims were filed in the past as a result of

the claims being consolidated for trial with cancer claims and then settled with such claims.

This resulted in the nonmalignant claims receiving a higher value at settlement than they would

have had they not been combined with the cancer claims. Some of the litigation reforms that

have taken place prohibit the consolidation of claims for trial and settlement. As a result,

unimpaired claim filings are reduced because they are no longer worth pursuing.

A recent survey conducted by the Manville Trust disclosed that practically no asbestos

plaintiffs’ law firms are screening cases, screening referring to the former practice of sending

mobile X-ray facilities to known areas of an asbestos-exposed population, and encouraging

-3-
people to have an X-ray. The evidence is overwhelming that in prior years, X-ray screenings

produced scores of thousands of nonmalignant claim filings. Finally, many states have enacted

restrictions for asbestos case filings to state residents, and only where asbestos exposure

occurred in the state. This has eliminated the thousands of cases that were filed in “asbestos-

friendly” states, even though the asbestos exposure did not occur in the state and the plaintiff

was not a state resident.

In addition to the reforms described above, the asbestos environment has changed in

subtle but significant ways. Two years ago, United States District Court Judge Janice Graham

Jack, who sits in Texas, ruled that more than 8,000 silica claims filed in her court were

fraudulent because the unimpaired claimants had filed asbestos claims (mostly with the

Manville Trust). This decision raised serious concerns in many quarters, including courts, as to

the validity of silica and asbestos claims. A federal grand jury sitting New York City is

investigating asbestos filing practices in the United States, and has been for a substantial period

of time. Rumor has it that certain physicians, many of whom have opined for many years that

thousands of claimants are suffering from nonmalignant asbestos diseases, have received so-

called “target” letters from the grand jury stating that they are a potential defendant in the

criminal investigation.

As will be discussed in the analysis of the charts that accompany this material,

forecasting asbestos future claim filings is more art than science. Medical models are useful in

predicting future claim filings for malignant diseases. Such models are utterly useless when

trying to predict nonmalignant claims because most such claims in the past have been generated

by law firms, and not by a diagnosis by a physician. Indeed, the Manville Trust believes that in

the asbestos environment, some of the principles of economic modeling (that is, behavior

-4-
modeling) are necessary in order to predict future asbestos claims. The Manville Trust believes

that there are disincentives in the present environment to file nonmalignant claims, and that the

best method to predict the filing of such claims is to survey asbestos plaintiffs firms to

determine their future behavior. A well-respected United States District Judge has described

the asbestos plaintiffs’ bar as a “highly efficient market,” referencing the fact that

approximately 50 law firms file almost 75% of all asbestos claims.

However, none of the factors noted above appear to affect the filing of mesothelioma or

other asbestos cancer claims. Such claims can be established by pathology reports and in the

case of mesothelioma, asbestos is recognized, almost without exception, as the exclusive cause.

While lung cancer has multiple causes, asbestos is a known carcinogen and unquestionably

causes many lung cancers.

-5-